Lamar W. Davis, Jr., United States Bankruptcy Judge.
Everette L. Davis ("Debtor" or "Plaintiff') filed her Chapter 13 petition and proposed Plan of Reorganization on January 14, 2015. Dckt. Nos. 1, 4.
FINDINGS OF FACT
Plaintiffs affidavit states that Defendant was properly served with the Summons and Complaint. A.P. Dckt. No. 5. After such service, Defendant failed to file any responsive pleadings. A defaulted defendant is deemed to have admitted the plaintiffs well-pleaded facts. See Cotton v. Massachusetts Mut. Life Ins. Co., 402 F.3d 1267, 1278 (11th Cir.2005). I find that the facts from Debtor's complaint are well-plead, and therefore they are deemed admitted by Defendant and quoted herein verbatim.
A.P. Dckt. No. 1.
11 U.S.C. § 1322(b)(2), often referred to as the anti-modification clause, states that a plan may "modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor's principal residence...."
The Supreme Court in its seminal case interpreting section 1322(b)(2), read the exception broadly, focusing on the fact that what is prohibited is a modification of the lender's "rights," not merely the status of its claim, Nobelman v. American Savings Bank, 508 U.S. 324, 328, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993). There, the debtors attempted to "strip down" the lender's secured claim in their plan to the fair market value of the residence and treat the remaining portion of the bank's claim as unsecured pursuant to 11 U.S.C. § 506(a).
The Eleventh Circuit interpreted Nobelman as protecting only a lender's secured claim in the debtor's residence if it retains some value as collateral and is not a wholly unsecured claim. Tanner v. FirstPlus Financial. Inc. (In re Tanner), 217 F.3d 1357 (11th Cir.2000).
Here, Debtor's property is valued at $62,000.00 with a balance due to the first mortgage holder of $73,085.61. Therefore, Springleaf s claim is wholly unsecured and the lien may be "stripped off' under Eleventh Circuit's (and all the circuits that have ruled on this issue) interpretation of § 1322(b)(2) and the Nobelman decision.
For these reasons, it is ORDERED that: Plaintiff's Motion for Default Judgment as to Defendant is GRANTED. It is further ORDERED that the mortgage lien on the Property held by Defendant, which is recorded hi Deed Book 318 B, Page 001 in the Superior Court of Chatham County, Georgia, is deemed void with respect to the interest of the Debtor in the Property and shall be extinguished automatically, without further court order, upon entry of the Chapter 13 discharge in this case. Additionally, Plaintiff may record this judgment in the appropriate real estate records indexing system upon the entry of the discharge in this case.
In the event that this case is dismissed, the lien of Springleaf shall not be affected by this Order. See 11 U.S.C. § 349(b)(1)(C). In the event that this case is converted to a Chapter 7 case, the rights of Springleaf with regard to its lien shall be governed by the applicable provisions of the Bankruptcy Code at that time.
The Supreme Court recently issued a decision that could conceivably resurrect the minority view. Although arising in a Chapter 7 case which required interpretation of § 506(d) rather than § 1322(b)(2), the Supreme Court used similar reasoning to that of the minority view mentioned supra in holding that a wholly unsecured lien in Chapter 7 cannot be "stripped off." Bank of America, N.A. v. Caulkett, 2015 WL 2464049, ___ U.S. ___, 135 S.Ct. 1995, 192 L.Ed.2d 52 (2015). Specifically the Court noted: "secured claim' in § 506(d) [mean[s] a claim supported by a security interest in property, regardless of whether the value of that property would be sufficient to cover the claim." Id. at 1999. Like the Dickerson Court, the Supreme Court also had reservations about a statutory interpretation that placed significant emphasis on judicial valuations. Id. at 2000-01. The Court observed that a reading allowing only creditors holding a lien with at least $1 of equity based on a judicial valuation to retain their lien through the bankruptcy could lead to arbitrary results. Id.
I agree with the Court's reasoning in Caulkett, and believe it is conceivable that the same reasoning might apply in interpreting the phrase "claim secured only by a security interest in real property that is the debtor's principal residence ..." which appears in § 1322(b). This may well lead to a reexamination the precedential authority of Tanner and the other circuit court opinions that have addressed this issue.
Nevertheless, Debtor filed an affidavit stating that Defendant had been properly served with the Summons, Complaint, and Rule 26(f) report, yet Springleaf failed to file a motion, answer, or any other responsive pleading within the time period set forth in the Summons. The Motion for Default Judgment has been pending since June 10, 2015, and no opposition has been filed nor has there been a motion to set aside the prior entry of default. Therefore, under current authority, default judgment is proper, and adjudication on the question posed above will have to wait, if ever, for another day.