Case: 14-11290   Date Filed: 09/03/2014   Page: 1 of 3


                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-11290
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 6:14-cv-00186-GAP,
                     Bkcy No. 6:13-bk-09954-CCJ


In re: KIMBERLEY COLETTE NEMCIK,

                                                                        Debtor.

____________________________________________________


BANK OF AMERICA, NA,

                                                            Plaintiff-Appellant,

                                  versus

KIMBERLEY COLETTE NEMCIK,

                                                          Defendant-Appellee.

                      ________________________

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

                            (September 3, 2014)
              Case: 14-11290    Date Filed: 09/03/2014   Page: 2 of 3


Before MARCUS, MARTIN, and ANDERSON, 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 Kimberley Nemcik’s

property in a Chapter 7 bankruptcy proceeding she initiated. Nemcik’s property

was subject to two mortgage liens at the time she filed for bankruptcy. The debt

owed on the first mortgage exceeded the fair market value of the property.

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, Nemcik 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 Nemcik’s motion acknowledged that under

binding Eleventh Circuit precedent holding that a wholly underwater junior lien is

voidable, the 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 Nemcik’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, and Bank of America now seeks




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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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