TORRUELLA, Circuit Judge.
Plaintiffs-Appellants, Ralph G. Canning III and Megan L. Canning (the "Cannings"), filed a Chapter 7 bankruptcy petition and sought to surrender their residence. When their mortgage lenders, Defendants-Appellees, Beneficial Maine, Inc., HSBC Mortgage Services, Inc., and HSBC Mortgage Corporation (collectively "Beneficial"), refused to foreclose or otherwise take title to the residence, the Cannings demanded that the mortgage lien be released.
After an unsuccessful attempt to refinance the two-year old mortgage loan encumbering their residence, defaulting on the terms of said loan, and with foreclosure proceedings already underway in state court, the Cannings filed a Chapter 7 bankruptcy petition on March 5, 2009. According to their bankruptcy schedules, the mortgage loan had an outstanding balance of $186,521, while the residence had a market value of $130,000.
Early in the bankruptcy case, Beneficial voluntarily dismissed the state court foreclosure proceedings without prejudice "due to the [Cannings'] filing Chapter 7 bankruptcy." The Cannings received their bankruptcy discharge on June 3, 2009, and thus were released from their outstanding
Beneficial began the exchange with a letter informing the Cannings that it would "not initiate and/or complete foreclosure proceedings on [your residence]. You will retain ownership of the property" and "we will no longer advance any payments for taxes and insurances. You will be solely responsible for the payment of taxes, insurance, and maintenance of this property."
In response, the Cannings reminded Beneficial of the bankruptcy discharge injunction and demanded that it either "(1) immediately commence foreclosure proceedings or (2) immediately discharge the mortgage on the property." With no answer from Beneficial, on October 1, 2009, the Cannings sent it another letter to follow up on their demand.
Beneficial responded by letter dated October 19, 2009. As relevant here, Beneficial's letter stated: "we are unable to honor your request to release the lien until the lien balance is satisfied in the amount of $186,324.15. However, we could consider a settlement option or a short sale." Beneficial also explained that the Cannings' account had been charged off, that they had no personal obligation to pay the lien balance, and that its letter was not an attempt to collect from them personally.
Despite this disclaimer from Beneficial, the Cannings interpreted the letter as a further violation of the discharge injunction. The next letter they sent to Beneficial emphatically indicated so and warned that a bankruptcy adversary proceeding would be filed if Beneficial failed to either foreclose or release its lien. But Beneficial did not budge, reiterating, instead, its prior response. The Cannings subsequently informed Beneficial that: (1) the residence had been vacated; (2) the utilities had been turned off; and (3) the municipal authorities, as well as the sewerage company, had been notified that Beneficial was the responsible party for any obligations pertaining to the residence.
True to their word, on December 21, 2009, the Cannings reopened their bankruptcy case and initiated an adversary proceeding against Beneficial. Among other things, they claimed actual and punitive damages in connection with Beneficial's "failure or refusal to commence foreclosure or otherwise recover possession of the [residence]." The Cannings also sought a declaratory judgment "ordering [Beneficial] to either recover possession of the Property or deliver unencumbered title to... the[m]." In its responsive pleading, Beneficial denied all material allegations and raised nine affirmative defenses, including lack of intent to violate the discharge injunction. At that time, Beneficial estimated the market value of the residence to be $75,000.
After preliminary procedural nuances, the parties agreed to submit the issue of liability on the basis of a jointly filed "Stipulation and Exhibits" containing the facts just described.
The bankruptcy court ruled in favor of Beneficial. See Canning v. Beneficial Maine, Inc. (In re Canning), 442 B.R. 165 (Bankr.D.Me.2011). In so doing, it first noted that "[t]he Cannings' demand of `foreclose or release, now' ignore[d] the prospect that real estate values change (up, as well as down) over time" and that "[a] critical component of Pratt's holding was the collateral's worthlessness and the fact that, unlike real estate, `vehicles rarely appreciate in value over time.'" Id. at 172. The court similarly observed that, "unlike the Pratts' secured creditor, [Beneficial] did not simply require that the Cannings `pay in full.' Rather it responded by suggesting either a voluntary settlement or a `short sale.'" Id. Such a proposal, the bankruptcy court reasoned, "plainly reveals that [Beneficial] sought to collect no more than the value securing its lien." Id. As a postlude, the court then added:
Id.
The Cannings timely appealed to the BAP, where both parties reasserted their arguments under Pratt, and the BAP affirmed on the same reasoning. See Canning v. Beneficial Maine, Inc. (In re Canning), 462 B.R. 258 (1st Cir. BAP 2011). Like the bankruptcy court, the BAP found dispositive distinctions between the Cannings' case and Pratt, including that the Cannings' residence had significant value and that Beneficial had not simply required full payment on the loan to release its lien. Id. at 268. The BAP also noted that Pratt's holding had been supported in part by evidence of actual expenses arising from the continued ownership of the collateral at issue. Id. at 267. It then established that the Cannings had failed to introduce evidence of similar expenses and instead rested their case on the mere possibility that liabilities could arise in the future. Id. Accordingly, "[b]ased upon the facts presented to and considered by the bankruptcy court," the BAP found itself unable to conclude "that there was a particular confluence of circumstances that renders Beneficial's refusal to discharge its mortgage tantamount to coercing the payment of a discharged prepetition debt." Id. at 268. This second appeal followed.
When an appeal comes to us by way of the BAP, we independently scrutinize
In this case, the Cannings pose no challenge to the bankruptcy court's findings of fact, and we find that no mistake was made as to them.
The Cannings' complaint is premised on 11 U.S.C. § 524(a), which sets forth an automatic injunction against efforts intended to collect an already discharged debt. The injunction affords honest but unfortunate debtors with a "fresh start" from the burdens of personal liability for unsecured prepetition debts and thus advances the overarching purpose of the Bankruptcy Code. In re Pratt, 462 F.3d at 17-18; see also Marrama v. Citizens Bank of Mass., 549 U.S. 365, 367, 127 S.Ct. 1105, 166 L.Ed.2d 956 (2007) ("The principal purpose of the Bankruptcy Code is to grant a `fresh start' to the `honest but unfortunate debtor.'" (quoting Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991))). For that reason, the scope of the injunction is broad, and bankruptcy courts may enforce it through 11 U.S.C. § 105, any sanctions imposed for violations being in the nature of civil contempt. In re Pratt, 462 F.3d at 17, 21.
Despite its broad scope, the discharge injunction does not enjoin a secured creditor from recovering on valid prepetition liens, which, unless modified or avoided, ride through bankruptcy unaffected and are enforceable in accordance with state law. Id. at 17. One of the ways through which debtors might free themselves from a prepetition lien is by surrendering the encumbered collateral to the secured creditor under 11 U.S.C. § 521(a)(2). Id. at 17-18. "Surrendering" in this context means "that the debtor agree[s] to make the collateral available to the secured creditor-viz., to cede his possessory rights in the collateral...." Id. at 19. The secured creditor, however, has
We set forth and applied the foregoing requirements in Pratt, hence the Cannings' steadfast reliance on that case. As previewed above, Pratt revolved around a secured creditor's refusal to either repossess or release a lien on an inoperable, worthless car that Chapter 7 debtors moved to surrender in bankruptcy. Finding the value of the car insufficient to satisfy foreclosure expenses, the secured creditor wrote off the balance of its loan, and left the debtors in possession of the encumbered collateral. Upon receiving their bankruptcy discharge, the debtors promptly sought to dispose of the car at a salvage dealer. But because under applicable state law a dealer could receive a junk car only if free from all liens, the debtors were unsuccessful in their attempt to transfer possession of the car. And when the debtors asked the secured creditor to either repossess the car or release its lien, it repeatedly refused, informing the debtors that the lien would be released only upon full satisfaction of the unpaid loan amount.
After reopening their bankruptcy case, the debtors filed an adversary complaint, alleging that the secured creditor's posture was intended to coerce payment on a discharged debt, in violation of the discharge injunction. In reversing the bankruptcy court's judgment for the secured creditor, we zeroed in on the following facts: (1) the secured creditor refused to repossess the car, but conditioned release of its lien upon full payment of the loan balance; (2) the debtors could not dispose of the car while encumbered and thus would have to keep it indefinitely (together with the accompanying costs) unless they "paid in full"; and (3) there were no reasonable prospects that the car would generate sale proceeds for the secured creditor to attach, as it was essentially worthless with limited possibilities of appreciation over time.
Based on those facts, we held that the secured creditor's posture in exclusively conditioning release of its lien on full payment of the loan balance amounted to a reaffirmation of debt demand that contravened "the stringent `anti-coercion' requirements of [the] Bankruptcy Code...." In re Pratt, 462 F.3d at 20. Similarly, we noted that the secured creditor's refusal to release its lien "had the practical effect of eliminating the [debtors'] `surrender' option under § 521(a)(2)." Id.
In this case, contrary to the Cannings' contentions, the factual scenario is much different than that in Pratt. Absent from this case is the exclusive "pay in full" conditional release presented in Pratt. Rather, in this case, Beneficial offered to release its lien through either a settlement offer or a short sale. This not only indicates the intent to collect no more than the value secured by the underlying lien, as the bankruptcy court observed, but also denotes a willingness to negotiate a palatable solution for all involved.
By like token, this case is missing the quandary the debtors in Pratt faced, where they were required to either yield to the secured creditor's "pay in full" demand or indefinitely remain in possession of inoperable, worthless and burdensome collateral. The BAP's opinion was right on point in this respect: "there is nothing in the record ... to evidence any expenses related to [the Cannings' continued] equitable ownership other than the ... reference in their brief to being exposed to liability." 462 B.R. at 267. And to that we add that the appellate record also lacks evidence to show that the Cannings' residence was "inoperable" or unlivable when it was abandoned.
Furthermore, the record here does not paint a picture in which a secured creditor cornered the debtors between a rock and hard place. The record before us contains no evidence showing that the alternatives Beneficial proposed were unfeasible — that is, the Cannings never explained to the court exactly why a short sale or a settlement was out of the question for them. The record is also devoid of any other indicia of coercion, such as, for example, Beneficial's refusal to negotiate with the Cannings a compromise different to the one originally proposed. In fact, from the record available to us, it seems that the Cannings employed a "take it or leave it" approach in negotiating with their mortgage lender, who, given its state-law
Last but not least, unlike the collateral in Pratt, the collateral involved here is far from worthless, and its value may increase over time. A reasonable possibility that the collateral could be converted to attachable sale proceeds therefore exists, and, unlike Pratt's secured creditor, Beneficial can point to its state-law rights as one of the factors supporting its posture.
The Cannings downplay the foregoing differences and instead invite us to focus on the fact that their residence plummeted in value to little more than 38% of its original market price. According to the Cannings, that fact invites the inference that "Beneficial decided not to foreclose on the property [because] it would not be cost effective." Such a business decision, the Cannings continue, "clearly put into question [their] fresh start, which is what the First Circuit in Pratt specifically prohibited a creditor from doing." There are several problems with the Cannings' contentions.
First, the record contains no evidence to support the inference the Cannings urge us to draw.
Third, and perhaps most importantly, Pratt does not support the conception that the Cannings appear to have of the Bankruptcy Code's "fresh start." The debtors in Pratt sought to disentangle themselves from an unduly burdensome situation by following a legally feasible alternative, without improperly burdening others. The Cannings, in contrast, invoke the "fresh start" to indirectly validate the decision to abandon their residence. They do so without providing any evidence showing that the residence posed an undue burden upon them after their bankruptcy discharge. The Cannings also fail to advance any legal authority, and we are not aware of any, to support the proposition that a homeowner may walk away, with no strings attached, from their legally owned residence. But even worse, in vacating their residence, the Cannings placed many of the burdens of dealing with an abandoned property on their neighbors, their town, and their city — in other words, on everyone but them. The "fresh start" does not countenance that result. Cf. In re Hermoyian, 435 B.R. 456, 466 (Bankr. E.D.Mich.2010) ("A fresh start does not mean debtors are free from all of the
A coda is necessary before we conclude. Today, where both lenders and homeowners strive to recuperate from hard economic times, this opinion should not be relied upon to leverage a way out of the bargaining table. It is one thing to insist upon state-law rights in refusing a recalcitrant "foreclose or release" demand by a debtor, and completely another to refuse negotiating with a debtor willing to compromise. Put differently, while this case may provide some guidance on the dos and don'ts applicable to the bargaining dynamics between secured creditors and bankruptcy debtors, our remarks in Pratt still control: "the line between forceful negotiation and improper coercion is not always easy to delineate, and each case must therefore be assessed in the context of its particular facts." 462 F.3d at 19.
For the reasons discussed above, we