Section 1123(b)(5) of the Bankruptcy Code prevents a debtor
from modifying claims that are secured only by the debtor’s “principal
residence.” In In re Schayes, 2012
Bankr. LEXIS 5598 (Bankr. D. Ariz. 2012), decided by Judge Haines on December 4, 2012, the court held that a home
that the debtors purchased for investment purposes but which was their only
residence on the petition date was the debtors’ “principal residence” for
purposes of section 1123(b)(5).
The debtors
purchased the subject property in 2007 and lived in the property for one year
as required by the original financing contract.
The home was vacant from 2008 until February 2011 when the debtors moved
back into the property. The debtors
filed their Chapter 11 bankruptcy petition in July 20, 2011. The debtors continued to live in the home.
The debtors argued
that the property should not be deemed their principal residence for purposes
of § 1123(b)(5) because they never intended to use it as their principal
residence. They argued that their only intended use of the property was to rent
it out to generate income and that they moved into the property solely for the
business purpose of putting the property into a rentable condition and
protecting it from further deterioration until it could be rented. Their proposed
Chapter 11 plan provided that they would move out of the property and the
property would then be rented. The debtors argued that that their intention
rather than their actual use should be determinative for purposes of §
1123(b)(5).
However, the
court noted that the Bankruptcy Code does include a definition for a principal
residence. Section 101(13A) defines the term "debtor's principal
residence" as: "a residential structure if used as the principal
residence by the debtor, including incidental property without regard to
whether that structure is attached to real property.” The court concluded that “the definition of ‘principal
residence’ in § 101(13A) unambiguously hinges on how the debtor actually
uses the structure, not the debtor's intentions at any point in time.”
The
court noted the suggestion of an uncodified “multi-use exception” to section
1123(b)(5). See In re
Scarborough, 461 F.3d 406, 411 (3d Cir. 2006) (“the real property that
secures the mortgage must be only the
debtor’s principal residence in order for the anti-modification provision to
apply”). However, the court distinguished Scarborough and similar cases,
noting that, “[t]he basis for the uncodified exception in each of these cases
was a multiple actual use of the property, not a single actual use as the
debtor's principal residence coupled with another intended or hypothetical use.”
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