Case: 12-14722   Date Filed: 10/29/2013   Page: 1 of 7


                                                     [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                     ___________________________

                             No. 12-14722
                         Non-Argument Calendar
                     ___________________________

         D. C. Docket Nos. 6:10-cv-01813-TJC; 6:10-bk-00983-ABB


In Re: GREG F. COLBOURNE,

                                                                        Debtor.
______________________________

GREG F. COLBOURNE,

                                                            Plaintiff-Appellant,

                                  versus

OCWEN,

                                                          Defendant-Appellee.


                   ______________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                  _______________________________

                            (October 29, 2013)
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Before MARTIN, FAY, and EDMONDSON, Circuit Judges.



PER CURIAM:



       Greg F. Colbourne appeals the district court’s affirmance of the bankruptcy

court’s denial of Colbourne’s motions to value the claims of Deutsche Bank;

claims asserted through Ocwen Loan Servicing, LLC (“Ocwen”). 1 In his motions,

Colbourne sought to cram down Ocwen’s first-priority mortgage liens on two

investment properties, pursuant to 11 U.S.C. §§ 506(a) and 1325(a)(5). No

reversible error has been shown; we affirm.

       In August 2009, Colbourne filed a Chapter 7 bankruptcy case in which he

listed both Ocwen claims. Colbourne received a discharge. The Chapter 7 case

was closed as a “no asset” case in December 2009.

       Colbourne filed this Chapter 13 bankruptcy case in January 2010. In his

schedules, Colbourne listed Ocwen’s mortgage liens: (1) a first-priority lien in the

amount of $374,000 on Colbourne’s Hopewell Drive property, which property is

valued at $125,000; and (2) a first-priority lien in the amount of $226,800 on

Colbourne’s Grasmere Parkway property, which property is valued at $70,000.


1
  On appeal, Colbourne does not challenge the bankruptcy court’s denial of Colbourne’s motion
to value a claim filed by Wells Fargo Dealer Services, f/k/a Wachovia Dealer Services, Inc.
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Colbourne then filed motions to value and cram down Ocwen’s claims based on

the current appraised values of the properties, both of which were substantially less

than the amounts outstanding on the mortgages.

       The bankruptcy court denied Colbourne’s motions. The bankruptcy court

concluded that, because Colbourne was ineligible to receive a Chapter 13

discharge -- pursuant to 11 U.S.C. § 1328(f)(1)2 -- based on his recent Chapter 7

discharge, he was precluded from cramming down Ocwen’s claims. 3 The district

court affirmed.

       Colbourne argues that the bankruptcy court erred in concluding that, because

Colbourne was ineligible to receive a discharge under Chapter 13, he may not cram

down Ocwen’s mortgage liens.

       When the district court affirms the bankruptcy court’s order, we review only

the bankruptcy court’s decision on appeal.4 Educ. Credit Mgmt. Corp. v. Mosley,


2
  Section 1328(f)(1) provides that “the court shall not grant a discharge of all debts provided for
in the plan or disallowed under section 502, if the debtor has received a discharge . . . in a case
filed under chapter 7 . . . of this title during the 4-year period preceding the date of the order for
relief under this chapter . . . .” 11 U.S.C. § 1328(f)(1).
3
 The bankruptcy court later confirmed Colbourne’s Chapter 13 plan. Although the plan
payments to Ocwen were calculated based on the proposed crammed down values, the
bankruptcy court ordered Colbourne to pay all disposable income into the estate until this appeal
was resolved. The bankruptcy court also ordered Colbourne to file a motion to modify the
confirmed plan to pay Ocwen’s claims in full if his appeal was unsuccessful.
4
  The district court’s order affirming the bankruptcy court’s denial of Colbourne’s motions is a
final and appealable order. See In re Donovan, 

, 1136 (11th Cir. 2008); T&B
Scottdale Contractors v. United States, 

, 1375 (11th Cir. 1989). The district court
concluded definitively that Colbourne was not permitted to cram down Ocwen’s claims.
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, 1324 (11th Cir. 2007). And we review the bankruptcy court’s legal

conclusions de novo. Hemar Ins. Corp. of Am. v. Cox, 

, 1241 (11th

Cir. 2003).

       “Chapter 13 debtors enjoy ‘broad power to modify the rights of the holders

of secured claims.’” In re Paschen, 

, 1205 (11th Cir. 2002).

“Section 1325(a)(5) is recognized as the source of a Chapter 13 debtor’s authority

to bifurcate secured claims and to ‘strip down’ the value of the claim to an amount

equal to the value of the collateral.” Id. at 1206.

       “Section 1325(a)(5) specifies the conditions under which Chapter 13 plans

must address ‘allowed secured claims’ 5 if the plans are to be confirmed . . . .” Id.

at 1205-06. In pertinent part, section 1325(a)(5) requires Chapter 13 plans to

provide that the holder of “each allowed secured claim . . . retain the lien securing

such claim until the earlier of . . . the payment of the underlying debt determined

under nonbankruptcy law; or . . . discharge under section 1328.” 11 U.S.C.

§ 1325(a)(5)(B)(i)(I).




Although the bankruptcy court must continue to oversee the administration of Colbourne’s
bankruptcy estate -- including modification of the confirmed plan in accordance with the district
court’s ruling -- the district court’s order fully resolved the issue and left the bankruptcy court
with no discretion in implementation.
5
  The term “allowed secured claim” refers to section 506(a), which provides that “[a]n allowed
claim . . . secured by a lien on property . . . is a secured claim to the extent of the value of such
creditor’s interest in the estate’s interest in such property, . . . and is an unsecured claim to the
extent that the value of such creditor’s interest . . . is less than the amount of such allowed
claim.” 11 U.S.C. § 506(a).
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      Although Ocwen’s claims are undersecured, that Ocwen is a “holder” of two

“allowed secured claims” for purposes of section 1325(a)(5) is undisputed.

      Other courts have explained that, when a “creditor’s claim is bifurcated into

a secured component and an unsecured component, [section 1325(a)(5)(B)(i)(I)]

makes clear that the creditor may not be forced to release its lien upon payment of

only the secured component.” In re Lilly, 

, 235 (Bankr. Ct. C.D. Ill.

2007). Thus, where a debtor is ineligible for a discharge -- as Colbourne was in

this case -- the creditor retains its lien “until the entire amount of the debt,

calculated without regard to the modifications permitted in bankruptcy, is paid.”

Id. at 236.

      Absent a discharge, “any modifications to a creditor’s rights imposed in the

plan are not permanent and have no binding effect once the term of the plan ends.”

Id.; see also In re Jarvis, 

, 605-06 (Bankr. Ct. C.D. Ill. 2008) (“A no-

discharge Chapter 13 case may not . . . result in a permanent modification of a

creditor’s rights where such modification has traditionally only been achieved

through a discharge and where such modification is not binding if a case is

dismissed or converted.”).

      Several courts -- including the Middle District of Florida -- have followed

the reasoning in In re Lilly and In re Jarvis in concluding that debtors ineligible for

discharge may not modify a secured creditor’s rights through cram down or strip

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off. See, e.g., In re Pierre, 

, 423-24, n.19 (Bankr. Ct. M.D. Fla. 2012)

(collecting cases and explaining that debtors who are ineligible for Chapter 13

discharge are unable to cram down a partially secured lien on investment

property); In re Judd, 66 Collier Bankr. Cas. 2d (MB) 1620, 6 (Bankr. Ct. M.D.

Fla. 2011) (denying Chapter 13 debtor’s motion to strip off a partially secured

second-priority mortgage lien on an investment property when the debtor was

ineligible for a Chapter 13 discharge).

       We are persuaded by the reasoning in these decisions. 6 Thus, because

Colbourne is ineligible for discharge under section 1328, he is unable to modify

permanently Ocwen’s claims through a cram down. See In re Lilly, 378 B.R. at

236.

       Colbourne also argues that, although he is ineligible for a Chapter 13

discharge, the Bankruptcy Code does not preclude him from filing for, or from

receiving, Chapter 13 relief. Although Colbourne’s argument may be correct as a

matter of law, the bankruptcy court -- in fact -- made no ruling that Colbourne was

ineligible for filing a Chapter 13 case or that Colbourne was ineligible for all forms

of Chapter 13 relief. Instead, after denying Colbourne’s motions to value, the


6
  We acknowledge that courts have approached differently the issue of lien-stripping in “Chapter
20” cases. Because the majority of cases that permit lien-stripping, including each of the cases
cited by Colbourne in his appellate brief, involve the stripping off of wholly unsecured second-
priority liens on principal residences -- not the cram down of undersecured first-priority liens on
investment property -- we see their guidance less applicable to the facts of this appeal.
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bankruptcy court confirmed Colbourne’s Chapter 13 plan pending resolution of

this appeal. Thus, although Colbourne is unable to cram down Ocwen’s claims, he

has already filed for (and benefited from) other forms of Chapter 13 relief.

      We see no reversible error. Colbourne’s motions were denied properly.

      AFFIRMED.




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