Case: 13-15855   Date Filed: 05/15/2014   Page: 1 of 3


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-15855
                        Non-Argument Calendar
                      ________________________

        D.C. Docket Nos. 8:13-cv-02558-SDM, 8:13-bk-05393-KRM



In re: EDELMIRO TOLEDO-CARDONA,

                                                                        Debtor.

____________________________________________________


BANK OF AMERICA, NA,

                                                            Plaintiff-Appellant,

                                  versus

EDELMIRO TOLEDO-CARDONA,

                                                          Defendant-Appellee.

                      ________________________

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

                             (May 15, 2014)
              Case: 13-15855     Date Filed: 05/15/2014   Page: 2 of 3


Before TJOFLAT, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:

      Bank of America appeals from the district court’s order affirming an order

from the bankruptcy court voiding Bank of America’s lien on Edelmiro Toledo-

Cardona’s property in a Chapter 7 bankruptcy proceeding he initiated. Toledo-

Cardona’s property was subject to two mortgage liens at the time he filed for

bankruptcy. The debt owed on the first mortgage exceeded the fair market value of

the property. Bank of America held the second mortgage, which had a value of

over $100,000. Because the debt secured by the first lien exceeded the value of the

property, Bank of America’s junior lien was considered to be wholly “underwater.”

This being the case, Toledo-Cardona moved the bankruptcy court to “strip off” or

“void”—that is, extinguish in its entirety—Bank of America’s lien.

      Bank of America’s response to Toledo-Cardona’s motion acknowledged that

under binding Eleventh Circuit precedent holding that a wholly underwater junior

lien is voidable, Toledo-Cardona’s motion should be granted. See Folendore v.

U.S. Small Bus. Admin., 

, 1538–39 (11th Cir. 1989); see also

McNeal v. GMAC Mortg., LLC, 

, 1265–66 (11th Cir. 2012) (per

curiam). For that reason, the bankruptcy court granted Toledo-Cardona’s motion.

Bank of America appealed to the district court, but moved for summary affirmance

in light of this Court’s binding precedent. The district court granted the motion,


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and Bank of America now seeks the appellate review that its motion for summary

affirmance was intended to expedite.

      Bank of America maintains that Folendore and McNeal should be

overturned in light of Dewsnup v. Timm, 

, 

(1992),

which held that a chapter 7 debtor could not “strip down” a creditor’s lien on real

property where the value of the property is less than what is due to be paid to the

creditor. 

112 S. Ct. at 778. But in McNeal, we reaffirmed Folendore

despite the holding in Dewsnup. 

–66. As Bank of

America concedes, we are bound as a panel to follow our Court’s decision in

McNeal. We therefore AFFIRM.




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