NOT FOR PUBLICATION ∗
               UNITED STATES BANKRUPTCY APPELLATE PANEL
                                OF THE TENTH CIRCUIT
                            _________________________________

    GEORGE V. CZAPLINSKI,                                     BAP No. KS-20-011

               Debtor.
    __________________________________

    GEORGE V. CZAPLINSKI,                                     Bankr. No. 18-21471
                                                               Adv. No. 19-06011
                 Appellant,                                        Chapter 7

    v.

    BANK OF AMERICA,                                                OPINION

                Appellee.
                            _________________________________

                       Appeal from the United States Bankruptcy Court
                                  for the District of Kansas
                          _________________________________

Before ROMERO, Chief Judge, HALL, and TYSON, ** Bankruptcy Judges.
                  _________________________________

HALL, Bankruptcy Judge.
                    _________________________________

         In bankruptcy, the goal is to obtain a discharge of the personal liability associated

with a petitioner’s debts. This concept is often over-simplified as “getting rid of” debts.


∗
       This unpublished opinion may be cited for its persuasive value, but is not
precedential, except under the doctrines of law of the case, claim preclusion, and issue
preclusion. 10th Cir. BAP L.R. 8026-6.
**
       Honorable Kimberley H. Tyson, Bankruptcy Judge, United States Bankruptcy
Court for the District of Colorado, sitting by designation.
But obtaining a bankruptcy discharge does not entitle a debtor to wipe the slate clean of

enforceable liens against property. In this appeal, the chapter 7 debtor takes issue with the

order and judgment of the United States Bankruptcy Court for the District of Kansas,

dismissing his complaint challenging the validity and enforceability of a lien against his

residence. Finding no error in the Bankruptcy Court’s conclusion that the lien is valid and

enforceable, we AFFIRM the dismissal.

    I.      Factual Background & Procedural History

         George Czaplinski (the “Debtor”) resides at 6310 Aberdeen Road, Mission Hills,

Kansas (the “Residence”). Capital Federal Savings held a first mortgage against the

Residence (the “First Mortgage”) when the Debtor and his non-filing spouse executed an

equity line of credit agreement in favor of Bank of America, N.A., formerly NationsBank

(the “Bank”), on March 24, 2000 (the “Line of Credit”). The Line of Credit extended a

$100,000 credit line to the Debtor. 1 The Bank secured the Line of Credit with a second

priority mortgage against the Residence (the “Second Mortgage”). 2 The Line of Credit

provided the Debtor could access credit by writing special checks, withdrawing funds

from branch locations or ATMs, making requests for advances by phone, or through

overdraft when his primary checking account lacked sufficient funds for a transaction. 3

The Line of Credit had a term of fifteen years unless “blocked, suspended or terminated”

by the Debtor’s written request. 4


1
         Line of Credit at 2, ¶ 2, in Appellee’s App. at 393.
2
         Second Mortgage, in Appellee’s App. at 399.
3
         Line of Credit at 2, ¶ 4, in Appellee’s App. at 393.
4
         Line of Credit at 2, ¶3, in Appellee’s App. at 393.
                                               2
       The Debtor refinanced the obligations secured by the First Mortgage and the

Second Mortgage by consolidating the two loans and borrowing $450,000 from the Bank

in July 2002 (the “$450,000 Loan”). To secure the $450,000 Loan, the Debtor granted the

Bank a mortgage lien also secured by the Residence (the “Third Mortgage”). 5 At the July

16, 2002 closing of the $450,000 Loan, the Bank paid off the First Mortgage and paid off

the $101,162.73 outstanding balance of the Line of Credit. On the same day, the Bank

executed a Real Estate Subordination Agreement (the “Subordination Agreement”),

subordinating the Second Mortgage to the Third Mortgage. 6

       Between August 8, 2002 and December 20, 2005, the Debtor made draws on the

Line of Credit by either requesting funds directly or through overdraft protection

advances until the balance reached $100,983.00. 7 Although the account number changed

in 2016 due to the Bank’s consolidation, the Line of Credit remained active. 8 Thereafter,

the Debtor continued to make payments on the Line of Credit, the last of which occurred

on August 7, 2017. 9 Account histories for the Line of Credit indicate, as of the date of the

Debtor’s last payment, he owed $80,240.92. 10




5
      The record before the Bankruptcy Court does not contain a copy of the Third
Mortgage.
6
      Subordination Agreement, in Appellant’s App. at 42.
7
      Home Loan History Statement, in Appellee’s App. at 445.
8
      Notice of Account Number Change, in Appellee’s App. at 435.
9
      Home Loan History Statement at 14, in Appellee’s App. at 457.
10

at 457.
                                              3
       On July 19, 2018, the Debtor filed a pro se petition under chapter 7 of the United

States Bankruptcy Code. 11 In his bankruptcy case, the Debtor identified a claim of

$82,819.00 owed to the Bank and secured by the Residence in Schedule D: Creditors

Who Have Claims Secured by Property, of his bankruptcy petition.12 The Debtor later

filed a complaint initiating an adversary proceeding against the Bank (the “Complaint”)

on March 1, 2019. The Complaint alleged the Bank failed to release the Second Mortgage

securing the Line of Credit, resulting in damages to the Debtor. The Complaint also

challenged the validity, priority, and extent of the lien securing the Line of Credit

pursuant to § 544(a).

       The Bank filed a motion for summary judgment, asserting it held a valid lien and

was not required to release the Second Mortgage. The Debtor filed a cross-motion for

summary judgment, arguing the Bank did not properly record the Second Mortgage

securing the Line of Credit with the register of deeds. The Bankruptcy Court denied the

Debtor’s cross-motion for summary judgment, concluding the Bank held an enforceable

mortgage securing the Line of Credit. 13 The Bankruptcy Court granted the Bank’s motion

for summary judgment in part and denied the motion in part. 14 The Bankruptcy Court

concluded the Bank was not required to release its lien after the $450,000 Loan



11
        All future references to “Bankruptcy Code,” “Code,” or “§,” refer to Title 11 of
the United States Code.
12
        Appellee’s App. at 159.
13
        Order Denying Debtor’s Motion for Summary Judgment at 5, in Appellee’s App.
at 261.
14
        Order Granting in Part and Denying in Part Bank of America’s Motion for
Summary Judgment (“Summary Judgment Order”) in Appellee’s App. at 247.
                                              4
transaction. 15 However, the Bankruptcy Court found a genuine issue of material fact

existed as to the amount due under the Line of Credit. 16 Accordingly, the adversary

proceeding continued to trial.

       The Debtor appeared pro se at trial, where he testified 17 he and his wife voluntarily

executed the Second Mortgage securing the Line of Credit. The Debtor also testified that,

at the July 16, 2002 closing of the $450,000 Loan, a representative of the Bank handed

him an account card, which he believed was an unsecured credit card. 18 The Debtor did

not produce the card itself, account statements for the alleged credit card, or any other

evidence of a credit card. 19 However, the Debtor testified he believed any amounts owed

to the Bank were on account of unsecured credit card debt. 20 The Debtor, persistent in

this theory, explained his understanding that: (i) the 2002 $450,000 Loan transaction

terminated the Line of Credit; and (ii) based on the Subordination Agreement, his liability

to the Bank could not exceed $450,000. 21 As a result, the Debtor believed any amounts




15
       Summary Judgment Order at 8-9, in Appellee’s App. at 254-55.
16

in Appellee’s App. at 255-56.
17
       The Bankruptcy Court did not find “the Debtor’s testimony to be credible,” in part
due to his selective memory focusing only on what the Debtor perceived to be beneficial
to him. Order Denying Plaintiff’s Lien Avoidance Claim and Dismissing Complaint (the
“Dismissal Order”) at 7, n. 9, in Appellee’s App. at 383.
18
       Tr. at 25, in Appellee’s App. at 287.
19

in Appellee’s App. at 287-88.
20

in Appellee’s App. at 287.
21

in Appellee’s App. at 273.
                                             5
incurred by charges made on the unsecured credit card provided by the Bank at the 2002

closing did not encumber the Residence. 22

       A representative from the Bank testified the card given to the Debtor was likely a

debit card associated with the Debtor’s primary checking account with the Bank.23 The

Bank’s representative also explained the Debtor’s checking account included overdraft

protection linked to the Line of Credit such that, if the Debtor had insufficient funds for

checking account transactions, advances would be made from the Line of Credit to cover

those transactions. 24 The Bank’s representative presented account histories for the Line of

Credit that included advances labeled either as ODP (overdraft protection) transfers or

online checking advances. 25

       After the trial’s conclusion, the Bankruptcy Court entered the Dismissal Order. 26

In the Dismissal Order, the Bankruptcy Court found the Second Mortgage securing the

Line of Credit included a future advance clause stating, “this Mortgage also secures all

future advances [Bank] at its discretion may loan to Borrower which references this

Mortgage, together with all interest thereon.” 27 The Bankruptcy Court concluded, under

Kansas law, the Second Mortgage contained an enforceable future advance clause and

found the Debtor had not requested termination of the Line of Credit pursuant to its




22

in Appellee’s App. at 280.
23
       Tr. at 90-91, in Appellee’s App. at 352-53.
24

in Appellee’s App. at 350-51.
25

in Appellee’s App. at 346-51
26
       Appellant’s App. at 66.
27
       Dismissal Order at 8, in Appellant’s App. at 73.
                                              6
terms. 28 As a result, the Bankruptcy Court held the Bank had no obligation to release the

Second Mortgage securing the Line of Credit when it paid the line down in July 2002. 29

           The Bankruptcy Court also found all the Debtor’s draws on the Line of Credit

including those after the $450,000 Loan transaction, were made pursuant to the terms of

the Line of Credit. 30 As such, the Bankruptcy Court held the Bank’s claim for

approximately $80,000 is secured by the Second Mortgage against the Residence and

dismissed the Complaint. The Debtor filed a timely notice of appeal of the Dismissal

Order. 31

     II.      Jurisdiction & Standard of Review

           “With the consent of the parties, this Court has jurisdiction to hear timely-filed

appeals from ‘final judgments, orders, and decrees’ of bankruptcy courts within the Tenth

Circuit.” 32 Neither party elected to have this appeal heard by the United States District

Court for the District of Kansas; thus, the parties have consented to our review.

           “A ‘final decision’ generally is one which ends the litigation on the merits and

leaves nothing for the court to do but execute the judgment.” 33 An order resolving all

claims asserted in an adversary proceeding is a final order for purposes of 28 U.S.C.



28

in Appellant’s App. at 73-74.
29

at 73-74.
30

in Appellant’s App. at 70.
31
        Notice of Appeal, in Appellant’s App. at 77.
32
        Straight v. Wyo. Dep’t of Trans. (In re Straight), 

, 409 (10th Cir.
BAP 2000) (first quoting 28 U.S.C. § 158(a)(1), and then citing 28 U.S.C. § 158(b)(1),
(c)(1) and Fed. R. Bankr. P. 8002).
33
        Catlin v. United States, 

, 233 (1945) (citing St. Louis I.M. & S.R.R. v.
S. Express Co., 

, 28 (1883)).
                                                 7
§ 158(a). 34 As the Dismissal Order resolved all of the Debtor’s claims under § 544(a), the

Court has jurisdiction pursuant to 28 U.S.C. § 158(a). 35

        A determination that a lien may not be avoided pursuant to § 544(a) is a legal

question reviewed de novo. 36 “De novo review requires an independent determination of

the issues, giving no special weight to the bankruptcy court’s decision.” 37 Any of the

Bankruptcy Court’s findings of fact considered in forming the basis of its legal

conclusions are reviewed for clear error. 38 “A finding of fact is clearly erroneous if it is

without factual support in the record or if, after reviewing all of the evidence, we are left

with the definite and firm conviction that a mistake has been made.” 39

     III.   Discussion

        The Debtor’s argument is succinct. He contends, at the July 2002 closing,

proceeds from the $450,000 Loan paid to the Bank satisfied and “closed” the obligation

under the Line of Credit. Further, the Bank subordinated the Second Mortgage securing


34
        Adelman v. Fourth Nat’l Bank & Tr. Co, N.A., of Tulsa (In re Durability, Inc.),

, 266 (10th Cir. 1990) (“the appropriate ‘judicial unit’ for application of
these [finality] requirements in bankruptcy is not the overall case, but rather the particular
adversary proceeding” (citing multiple cases)).
35

        In re Murray, 

, 133 (10th Cir. BAP 2014), aff'd, 

(10th Cir. 2014) (citing Pierce v. Underwood, 

, 558 (1988)).
37
        LTF Real Estate Co. v. Expert S. Tulsa, LLC (In re Expert S. Tulsa, LLC), 

, 643 (10th Cir. BAP 2014) (citing Salve Regina Coll. v. Russell, 

,
238 (1991)).
38
        Sender v. Nancy Elizabeth R. Heggland Family Tr. (In re Hedged-Invs. Assocs.,
Inc.), 

, 472 (10th Cir. 1995) (citing In re Reliance Equities, Inc., 

, 1340 (10th Cir. 1992)) (stating “court of appeals must not disturb the bankruptcy
court’s findings of fact unless they are clearly erroneous”).
39
        In re Miniscribe Corp., 

, 1240 (10th Cir. 2002) (quoting Conoco,
Inc. v. Styler (In re Peterson Distrib., Inc.), 

, 959 (10th Cir. 1996)).
                                               8
the Line of Credit to the Third Mortgage securing the $450,000 Loan, and the

Subordination Agreement extinguished the lien of the Second Mortgage. The Debtor

argues, as a result, the Bank wrongfully failed to release the Second Mortgage securing

the Line of Credit after the July 2002 closing. As such, any advances under the Line of

Credit that led to liability in excess of $450,000 are unsecured.

       Unfortunately, the Debtor is operating under the mistaken beliefs that the Line of

Credit was “closed” and the Subordination Agreement terminated the Line of Credit

when the evidence in the record before this Court confirms the Line of Credit remained

opened and the Second Mortgage securing the Line of Credit remains valid and

enforceable.

          a. The Bank was Not Obligated to Release the Mortgage

       “Property interests are created and defined by state law.” 40 “The justifications for

application of state law are not limited to ownership interests; they apply with equal force

to security interests.” 41 Thus, to determine whether the Second Mortgage constitutes a

valid and enforceable mortgage on the Residence, the Court must look to Kansas law. 42

       The Supreme Court of Kansas provides that promissory notes and mortgages are

contracts between the parties, and the rules of construction applicable to contracts

therefore apply. 43 The primary rule of contract construction is that the intent of the parties



40
      Butner v. United States, 

, 55 (1979).
41

      Valley Bank & Tr. Co. v. Spectrum Scan, LLC (In re Tracy Broad. Corp.), 

, 1060 (10th Cir. 2012).
43
      First Nat’l Bank & Tr. Co. v. Lygrisse, 

, 1272 (Kan. 1982).
                                              9
must prevail. 44 The Debtor argues the Bank had an obligation to release the Second

Mortgage when it received proceeds from the $450,000 Loan in 2002. On the other hand,

the Bank points to the future advance clauses in the Line of Credit and the Second

Mortgage as trumping any obligation to release the Second Mortgage. The intent of the

parties is evident from the Line of Credit and the Second Mortgage. The Line of Credit

required the Debtor to notify the Bank in writing if he wanted to suspend or terminate the

Line of Credit, something which the Debtor never did.45 Similarly, the Second Mortgage

secures future advances under the Line of Credit and was not to be released until the Line

of Credit was closed. 46

       “Future advance clauses are clearly valid and enforceable in the State of Kansas” 47

and are addressed in the Kansas Statutes applicable to real estate mortgages. Specifically,

under Kansas law, a real estate mortgage

       may secure future advances and the lien of such mortgage shall attach upon
       its execution and have priority from time of recording as to all advances
       made thereunder until such mortgage is released of record: Provided, That
       the lien of such mortgage shall not exceed at any one time the maximum
       amount stated in the mortgage. 48




44
      Mark Twain Kan. City Bank v. Cates, 

, 1161 (Kan. 1991).
45
      Line of Credit at 4, ¶17, in Appellee’s App. at 395.
46
      Second Mortgage at 5, in Appellee’s App. at 403.
47
      Halliburton Co. v. Bd. of Cty. Comm’rs of Jackson Cty., 

, 1349
(Kan. Ct. App. 1988).
48
      Kan. Stat. Ann. § 58-2336 (2020).
                                            10
Kansas law further provides that when a debt is paid in full “and there is no agreement

for the making of future advances to be secured by the mortgage, the mortgagee . . . shall

enter satisfaction . . . of such mortgage . . . forthwith.” 49

       The only interpretation the Court can derive from reading these two statutes in

tandem is, where a mortgage contains a valid future advance clause, the mortgagee is not

automatically required to release the mortgage upon payment in full. In such a case, the

mortgagee must comply with the terms of the instrument allowing for future advances. In

this case, the Second Mortgage securing the Line of Credit provides “[u]pon payment of

all sums secured by this Mortgage and closing of the Obligation, [the Bank] shall release

this Mortgage without charge to Grantor except for any recordation costs.” 50 However,

the Line of Credit provides “[i]f the Account is not blocked, suspended or terminated,”

the Debtor may “request Advances for fifteen (15) years from the date of this

Agreement.” 51 Moreover, to “suspend or terminate” the Line of Credit, the Debtor needed

only to notify the Bank of any such request in writing. 52

       The Bank was under no obligation to release the Second Mortgage securing the

Line of Credit while the obligation under the Line of Credit remained opened. The

language in the Line of Credit is clear: to request termination, the Debtor must provide

written notice. The Debtor never provided any evidence of a written request to terminate

the Line of Credit. Additionally, the Debtor continued to take advances under the Line of


49
       Kan. Stat. Ann. § 58-2309a(a) (2020).
50
       Second Mortgage at 5, in Appellee’s App. at 403.
51
       Line of Credit at 2 ¶ 4, in Appellee’s App. at 393.
52

in Appellee’s App. at 395.
                                                11
Credit, repeatedly increasing the balance after the $450,000 Loan transaction. Since the

Line of Credit remained opened, the Bank was under no obligation to release the Second

Mortgage. Accordingly, the Bankruptcy Court did not err in determining the Bank was

not obligated to release the Second Mortgage.

          b. The Line of Credit is Secured by the Residence

       Next, the Debtor argues the Bank’s Second Mortgage lien in the Residence should

be avoided pursuant to § 544(a). Section 544 “afford[s] trustees the power to avoid any

transfer or obligation that a hypothetical creditor with an unsatisfied judicial lien on the

debtor’s property could avoid under relevant state nonbankruptcy law.” 53 Although not

an issue raised on appeal in this case, individual debtors “may exercise section 544

avoiding powers only in the limited circumstances outlined in section 522(h).” 54

       The Debtor again argues the Residence does not secure any advances made by the

Bank under the Line of Credit (i) after the Bank executed the Subordination Agreement,

or (ii) for debt exceeding $450,000. However, the Bankruptcy Court’s findings of fact

establish the existence of a lien securing the Line of Credit and are not clearly erroneous.

The Bankruptcy Court found the Debtor and his wife executed the Line of Credit and the

Second Mortgage in March 2000. As of July 16, 2002, the Debtor’s balance under the

. St. John Nat’l Bank (In re Haberman), 

, 1210 (10th Cir.
2008) (citing 11 U.S.C. § 544(a)(1)).
54
       5 Collier on Bankruptcy ¶ 544.07[3] (16th ed. 2020). Under § 522(h), a “debtor
may avoid a transfer of property of the debtor . . . to the extent that the debtor could have
exempted such property under subsection (g)(1) . . . if (1) such transfer is avoidable by
the trustee under section 544 . . . ; and (2) the trustee does not attempt to avoid such
transfer.” 11 U.S.C. § 522(h).
                                              12
Line of Credit was $100,860.87. While the Debtor and his wife refinanced the First

Mortgage against the Residence and paid down the Line of Credit balance to zero with

the $450,000 Loan, as explained previously, the Bank was not required to release the

Second Mortgage because the Debtor did not request that the Line of Credit be blocked,

suspended, or terminated. Accordingly, the Line of Credit remained opened for the stated

fifteen-year term.

       At trial, the Bank provided account statements indicating the Debtor drew on the

Line of Credit after July 2002. The Bankruptcy Court found “[t]he evidence that the

advances shown on account statements were made under the terms of the [Line of Credit

was] unassailable.” 55 The Bankruptcy Court noted each advance contained in the account

statements described a method of advance, such as “ODP Advance,” “electronic

advance,” or “balance advance.” 56 The Debtor acknowledged he had a checking account

with the Bank, and such account may have been linked to the Line of Credit for overdraft

protection. The account statements themselves reflect advances were made to cover

insufficient fund transactions against the Debtor’s checking account. And, all advances

made by the Bank under the Line of Credit occurred during the fifteen-year term of the

Line of Credit. The advances resulted in a balance of $80,240.92 as of August 2017,

approximately one year before the bankruptcy petition.

       The Debtor testified the Bank provided him with a “credit card,” which he

believed was unsecured and not linked to the Line of Credit. However, the Debtor


55
       Dismissal Order at 5, in Appellant’s App. at 70.
56

Appellant’s App. at 71.
                                           13
produced no evidence of the credit card or any related credit card statements. The Bank’s

representative testified the card was likely a debit card the Debtor could use to initiate

transfers from the Line of Credit. Lacking any evidence to support the Debtor’s claims,

the Bankruptcy Court rejected his testimony that the advances were charges to an

unsecured credit card.

       The Debtor’s arguments on appeal do not refute any of the factual findings

underpinning the Bankruptcy Court’s legal conclusion that the Bank’s Second Mortgage

is valid and enforceable. The Debtor primarily argues the Bankruptcy Court failed to

recognize the Subordination Agreement’s legal significance, claiming the agreement

renders any advances in excess of $450,000 unsecured. The Debtor is mistaken. He is not

a party to the Subordination Agreement and derives no benefit from it. 57 Furthermore, the

Subordination Agreement is narrow in scope and only serves to reverse the priority of the

liens of the Second Mortgage and the Third Mortgage. 58 The Subordination Agreement

does not purport to modify, release, or otherwise terminate the Line of Credit or

otherwise alter or change the Debtor’s obligations under the Line of Credit. In fact, the

Subordination Agreement itself is perhaps the best evidence that the parties did not intend

the Subordination Agreement to somehow terminate the Line of Credit and consequently

require the release of the Second Mortgage. If the Line of Credit terminated, then the



57
       163 Am. Jur. Proof of Facts 3d 305 (2017) (“The subordination agreement will
only be between the two creditors whose rights and remedies against the borrower are
altered or adjusted according to the terms of the agreement.”).
58
       Subordination Agreement at 2, in Appellant App. at 98 (“Subordinator hereby
subordinates the Senior Lien to Bank of America’s Junior lien.”).
                                             14
Second Mortgage would have been required to be released and the Subordination

Agreement would serve no purpose.

         Considering there is no evidence in the record to support the Debtor’s claims, and

the Bankruptcy Court’s factual findings are supported by evidence in the record, the

factual findings are not clearly erroneous. As the Bankruptcy Court’s findings of fact

support its conclusion that the Bank retained a valid and enforceable lien against the

Residence based on the Second Mortgage securing the Line of Credit, the Bankruptcy

Court did not err in dismissing the Complaint.

   IV.      Conclusion

         The Debtor erroneously believes that the 2002 $450,000 Loan transaction, and the

Bank’s contemporaneous execution of the Subordination Agreement, terminated the

Second Mortgage securing the Line of Credit. Despite his contentions, the Debtor admits

the Bank advanced approximately $100,000 in the three years following the $450,000

Loan transaction and fails to present any evidence the advances were not made pursuant

to the terms of the Line of Credit. Accordingly, upon determining the Bankruptcy Court

correctly concluded the Second Mortgage securing the Line of Credit remains a valid and

enforceable mortgage, we AFFIRM its dismissal of the Complaint.




                                             15