Opinion

Elaine M. Mills

Court
United States Bankruptcy Court, N.D. Ohio
Filed
May 31, 2019
Cited by
0 cases
Authority
More cited than 30.2%

The opinion

The court incorporates by reference in this paragraph and adopts as the findings and orders

of this court the document set forth below. This document was signed electronically at the

time and date indicated, which may be materially different from its entry on the record.

Russ Kendig

Sarees United States Bankruptcy Judge

Dated: 04:09 PM May 31, 2019

UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

IN RE: ) CHAPTER 13

)

ELAINE M. MILLS, ) CASE NO. 18-42365

)

Debtor. ) JUDGE RUSS KENDIG

)

)

)

) MEMORANDUM OF OPINION

) (NOT FOR PUBLICATION)

)

)

)

)

Elaine Mills (‘Debtor’) filed a Chapter 13 bankruptcy petition on November 23, 2018.

She filed her Chapter 13 plan on that same date. U.S. Bank N.A. as trustee for Manufactured

Housing Contract Senior/Subordinate Pass-Through Certificate Trust 2002-1 (‘Creditor’) filed

an Amended Objection to Confirmation of Plan on April 5, 2019, asserting that Debtor’

manufactured home was in fact her primary residence, and thus the cramdown included within

the plan was not permitted. A confirmation hearing was held on April 11, 2019, and the matter

was taken under advisement. The parties were given an additional week to provide supplemental

briefs if they so desired.

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b) and the

general order of reference entered in this district on July 16, 1984. This is a core proceeding

under 28 U.S.C. §§ 157(b)(2), and the court has authority to issue final entries.

This opinion is not intended for publication or citation. The availability of this opinion,

in electronic or printed form, is not the result of a direct submission by the Court.

FACTS

Creditor holds the first mortgage on Debtor’s residence, a manufactured home located at

7493 Hillcrest Drive, Andover, OH 44003. Three months before the commencement of this

case, USB was granted summary judgment in the Ashtabula County Court of Common Pleas

(case no. 2017 CV 00606). Debtor’s Chapter 13 plan, filed on November 23, 2018, attempts to

cram down the claim to its secured value of $3,064.93, at an interest rate of 0%. Creditor filed

Proof of Claim #7, on February 1, 2019, which listed an arrearage of $23,969.68 and a balance of

$77,083.80 on the mortgage. Creditor filed an Amended Objection to Confirmation on April 5,

2019, arguing that the home meets the requirements to consider it real estate and Debtor’s

primary residence, thus making the claim ineligible to be modified.

DISCUSSION

The Bankruptcy Code provides that a chapter 13 plan may modify the rights of holders of

secured claims, unless such claim is “secured only by a security interest in real property that is

the debtor’s principal residence.” 11 U.S.C. § 1322(b)(2). The Code does not, however,

provide a definition of the key phrase in this provision: real property. See 11 U.S.C. § 101. In

order to assess whether and when a manufactured home qualifies as real property, the court must

look instead to state law.

In Ohio, the category of “real property” generally does not include manufactured or

mobile homes, with narrow exceptions. O.R.C. Ann. § 5701.02(A). In order for a

manufactured home to be considered real property, it must (1) be “affixed to a permanent

foundation . . . and [be] located on land owned by the owner of the home,” and (2) the certificate

of title must have “been inactivated by the clerk of court of common pleas that issued it.”

O.R.C. Ann. § 5701.02(B)(2). The Sixth Circuit has held that when either of these requirements

is not met, a manufactured home will not be considered real property under Ohio law, and will

thus be subject to modification. See, e.g., Reinhardt v. Vanderbilt Morg. & Fin., Inc. (In re

Reinhardt), 563 F.3d 558 (6th Cir. 2009). More to the point, the Sixth Circuit has definitively

held that a debtor’s “failure to surrender the title to their mobile home” is “dispositive” in the

determination of the property’s status. Wallingford v. Green Tree Servicing, LLC (In re

Wallingford), 524 Fed. Appx. 205, 209 (6th Cir. 2013).

2

Both Creditor and Debtor in this case refer to the explicit language used in the Judgment

Entry from the Ashtabula County Court of Common Pleas as support for their positions.

Creditor emphasizes that the state court held that it had the first and best lien on the

manufactured home, and that the home was indeed affixed to the subject property; however,

notably missing from the judgment is any definitive determination that the home had been

converted to real property. Debtor points to this lack of a specific finding, and also underscores

that the judgment does explicitly make note of the fact that the certificate of title had not yet been

surrendered. In Rem Judgment Entry at 3, U.S. Bank, N.A. as Trustee for Manufactured

Housing Contract Senior/Subordinate Pass-Through Certificate 2002-1 v. Mills, et al., 2017 CV

00606.

This court finds Debtor’s point well-taken and finds that the manufactured home in

question cannot thus be considered real property, as it does not meet the state law requirements.

The tile was not surrendered and the home remains personal property. The cramdown proposed

in the Chapter 13 plan is therefore permissible under § 1322(b)(2).1

Creditor raises the concern that the instant dispute would be more appropriately handled

through an adversary proceeding, and in fact worries that not doing so “seems procedurally

improper.” Creditor refers for support to Bankruptcy Rule 7001, which establishes one type of

adversary proceeding as “a proceeding to determine the validity, priority or extent of a lien or

other interest in a property, but not a proceeding under Rule 3012 or Rule 4003(d).” Bankr. R.

7001(2) (emphasis added). This matter falls squarely under Rule 3012, which addresses the

determination of the amount of a claim. The disputed cramdown arises from Section 3.2 of the

Chapter 13 Form Plan, the language of which states that “[t]he debtor(s) request that the court

determine the value of the secured claims listed below.” It is not procedurally improper to

address the plan’s treatment of secured claims through the confirmation hearing format, as that is

clearly how the Rules, Code and Plan intended such questions to be treated.

The court will overrule the objection by separate order.

# # #

Service List:

Elaine M. Mills

P.O. Box 133

Williamsfield, OH 44093

Robert L. Herman

P.O. Box 21

1 The court need not address Creditor’s Rooker-Feldman argument, as there is no collateral attack being attempted

in this instance: the Court of Common Pleas did not make a determination one way or another regarding the status of

the subject property, and so this court’s determination that the manufactured home does not constitute real property

is not a rejection of any state court judgment.

3

Kinsman, OH 44428

Glenn E. Algie

3962 Red Bank Road

Cincinnati, OH 45227

Michael A. Gallo

5048 Belmont Avenue

Youngstown, OH 44505

4

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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