Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

Fun & Games with Mortgage Bankruptcy

Author: Joel R. Glucksman

Date: June 11, 2015

Key Contacts

Back

Dewsnup v. Timm

In 1992, the United States Supreme Court decided a mortgage bankruptcy case entitled, Dewsnup v. Timm, 502 U.S. 410 (1992).  This held that a debtor in a bankruptcy could not use a Chapter 7 liquidation proceeding to “strip down” a mortgage lien to the value of the collateral.

In Dewsnup, the mortgage was for a greater amount than the value of the property.  The debtor attempted to use bankruptcy to reduce the value of the mortgage to the value of the property, and to discharge the “undersecured” remainder of the mortgage debt.  The Supreme Court refused to allow that, thus leaving the debtor in the position of either walking away from the property (that is, abandoning it in the bankruptcy), or agreeing to pay the mortgage bank the full amount of the mortgage.

Applying the Dewsnup Ruling

Despite frequent criticism of Dewsnup’s reasoning, the Supreme Court has just reaffirmed it.  In last week’s case of Bank of America v. Caulkett, the debtors both had second mortgages which were completely “under water.”  That is, the values of the two properties were each less than the first mortgages, leaving the second mortgages fully unsecured.  The Supreme Court, being consistent, followed Dewsnup, and declared that not even completely unsecured mortgages could be “stripped down” in bankruptcy.

The interesting point, however, was that the opinion, a unanimous ruling authored by Justice Thomas, admitted in a footnote that Dewsnup “has been the target of criticism.”  Indeed, Justice Thomas cited to Justice Scalia’s dissent in Dewsnup.  One might therefore have expected the Supreme Court to consider overruling Dewsnup.  Thomas chose not to do this, relying repeatedly on the fact that counsel in Caulkett never asked that Dewsnup be reconsidered.  One will note, charitably, for the record, that this omission has not stopped the High Court in the past from targeting issues.  Perhaps they are simply laying the ground work for an all-out assault on Dewsnup.

If you have any questions or would like to discuss this matter in more detail, please contact Joel Glucksman, Partner, Chair, Bankruptcy & Creditors Rights Group.

Are you a creditor in a bankruptcy?  Have you been sued by a bankrupt?  If you have any questions about your rights, please contact me, Joel Glucksman, at 201-806-3364.

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
What Business Owners Get Wrong Before Meeting a Litigation Attorney post image

What Business Owners Get Wrong Before Meeting a Litigation Attorney

What should you expect when meeting a litigation attorney about a business dispute? You should expect to describe the dispute in your own words, hand over the most important documents, flag any deadlines or immediate threats, and leave with a clearer picture of the problem, what information is still needed, and the likely next steps. […]

Author: Michael Mietlicki

Link to post with title - "What Business Owners Get Wrong Before Meeting a Litigation Attorney"
Arbitration vs. Litigation vs. Mediation: What New Jersey Businesses Should Know Before Signing a Contract post image

Arbitration vs. Litigation vs. Mediation: What New Jersey Businesses Should Know Before Signing a Contract

Arbitration resolves disputes privately before an arbitrator whose decision is usually final, while litigation resolves them in court with full rights of appeal. Whether a business ends up in arbitration or litigation is often decided when it signs the contract, long before any dispute arises. Key Takeaways When facing a contract dispute, carefully consider your […]

Author: Graham Staton

Link to post with title - "Arbitration vs. Litigation vs. Mediation: What New Jersey Businesses Should Know Before Signing a Contract"
Can You Own Part of a New Jersey Business Without a Written Agreement? post image

Can You Own Part of a New Jersey Business Without a Written Agreement?

Can you own part of a business in New Jersey without a written agreement? Yes, it is possible. Under New Jersey’s Uniform Partnership Act, a partnership can arise when two or more people carry on a business as co-owners for profit, whether or not they ever intended to form one. Ownership doesn’t necessarily depend on […]

Author: Michael Mietlicki

Link to post with title - "Can You Own Part of a New Jersey Business Without a Written Agreement?"
Crisis-Proofing Your New Jersey Business: Building a Crisis Response Plan Before You Need One post image

Crisis-Proofing Your New Jersey Business: Building a Crisis Response Plan Before You Need One

For New Jersey businesses, crisis preparedness should be viewed as a legal and operational function, not simply an emergency-management exercise. A well-designed crisis response plan can help preserve evidence, protect confidential communications, meet reporting obligations, limit unnecessary exposure, and prevent an already difficult situation from becoming a larger legal problem. Key Takeaways A serious crisis […]

Author: Sean M. Pena

Link to post with title - "Crisis-Proofing Your New Jersey Business: Building a Crisis Response Plan Before You Need One"
Monmouth County's Next Development Wave: What Developers and Investors Need to Know post image

Monmouth County's Next Development Wave: What Developers and Investors Need to Know

Monmouth County is entering a significant new phase of development. For those looking to acquire property or undertake a new project, understanding the market opportunity is only the beginning. The more important question is whether a particular property can actually be developed as contemplated and what approvals, agreements, and other conditions will be required to […]

Author: Donald M. Pepe

Link to post with title - "Monmouth County's Next Development Wave: What Developers and Investors Need to Know"
Are Your Conversations with AI Shielded from Discovery? Courts Are Split post image

Are Your Conversations with AI Shielded from Discovery? Courts Are Split

Whether a client’s prompts to a generative AI tool and the documents it produces are protected from disclosure depends on the case type, who claims protection, and whether counsel was involved. In United States v. Heppner, a New York federal judge ruled that a criminal defendant’s communications with an AI platform were protected by neither […]

Author: Chris Seelinger

Link to post with title - "Are Your Conversations with AI Shielded from Discovery? Courts Are Split"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form. By providing a telephone number and submitting this form you are consenting to be contacted by SMS text message. Message & data rates may apply. Message frequency may vary. You can reply STOP to opt-out of further messaging.
“If you would like to submit a file, please email it directly to info@sh-law.com.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!