                  ELECTRONIC CITATION: 2008 FED App. 0007P (6th Cir.)
                               File Name: 08b0007p.06


           BANKRUPTCY APPELLATE PANEL OF THE SIXTH CIRCUIT

In re: KENNETH L. DAVIS and TAMMY R.              )
DAVIS,                                            )
                                                  )
            Debtors.                              )
______________________________________            )
                                                  )
KENNETH L. DAVIS and TAMMY R. DAVIS,              )
                                                  )            No. 07-8032
             Appellants,                          )
                                                  )
             v.                                   )
                                                  )
GREEN TREE SERVICING, LLC,                        )
                                                  )
            Appellee.                             )
______________________________________            )
                                                  )


                       Appeal from the United States Bankruptcy Court
              for the Southern District of Ohio, Western Division, at Cincinnati.
                                         No. 06-13650.

                                  Argued: February 6, 2008

                             Decided and Filed: April 16, 2008

   Before: PARSONS, SCOTT, and SHEA-STONUM, Bankruptcy Appellate Panel Judges.

                                  ____________________

                                         COUNSEL

ARGUED: Gregory M. Wetherall, Cincinnati, Ohio, for Appellants. David J. Demers, DEMERS
& ADAMS, LLC, New Albany, Ohio, for Appellee. ON BRIEF: Gregory M. Wetherall,
Cincinnati, Ohio, for Appellants. David J. Demers, DEMERS & ADAMS, LLC, New Albany, Ohio,
for Appellee.
                                          ____________________

                                                OPINION
                                          ____________________

        MARILYN SHEA-STONUM, Bankruptcy Appellate Panel Judge. Kenneth L. Davis and
Tammy R. Davis (collectively, the “Debtors”) appeal an order of the bankruptcy court prohibiting
them from modifying the secured claim of Green Tree Servicing, LLC (“Green Tree”) and sustaining
the objection of Green Tree to confirmation of the Debtors’ chapter 13 plan. For the reasons that
follow, we reverse and remand.

                                         I. ISSUE ON APPEAL

        Whether the addition of § 101(13A) to the Bankruptcy Code,1 defining a “debtor’s personal
residence,” changed the scope of the anti-modification provision in § 1322(b)(2) to prevent a debtor
from modifying a claim secured by a mobile home, without regard to the status of the mobile home
as realty or personalty under state law?

                      II. JURISDICTION AND STANDARD OF REVIEW

        The Bankruptcy Appellate Panel of the Sixth Circuit (the “Panel”) has jurisdiction to decide
this appeal. The United States District Court for the Southern District of Ohio has authorized appeals
to the Panel and a final order of the bankruptcy court may be appealed as of right. 28 U.S.C.
§ 158(a)(1). For purposes of appeal, a final order “ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United States, 489
U.S. 794, 798, 109 S. Ct. 1494, 1497 (1989) (citations omitted).

        The bankruptcy court’s order sustained Green Tree’s objection to confirmation and directed
the Debtors to file an amended plan within 20 days. The bankruptcy court’s order neither confirmed
the Debtors’ plan nor dismissed the chapter 13 case. Generally, an order which neither confirms
a plan nor dismisses the underlying case is not final. See WCI Steel, Inc. v. Wilmington Trust Co.



        1
           Because the Debtors filed their bankruptcy petition after October 17, 2005, the case is governed by the
Bankruptcy Code, as amended by the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”).
Therefore, all statutory references are to the BAPCPA, 11 U.S.C. §§ 101-1534 (2005), unless otherwise specifically
noted.

                                                       -2-
(In re WCI Steel), 338 B.R. 1 (N.D. Ohio 2005); see also Jefferson Fin. Servs. v. Hance (In re
Hance), 234 F.3d 1268, 2000 WL 1478390 (6th Cir. 2000) (unpub. table decision) (finding lack of
jurisdiction where confirmation of chapter 13 plan denied and notice of appeal filed before plan was
confirmed). The Debtors properly filed a motion for leave to appeal an interlocutory order pursuant
to 28 U.S.C. § 158(a) and Rule 8003 of the Federal Rules of Bankruptcy Procedure. This Panel
granted that motion on September 21, 2007.

         This appeal presents a discrete legal question. A bankruptcy court’s conclusions of law are
reviewed de novo. Adell v. John Richards Homes Bldg. Co. (In re John Richards Homes Bldg. Co.),
439 F.3d 248, 254 (6th Cir. 2006); Mapother & Mapother, PSC v. Cooper (In re Downs), 103 F.3d
472, 476-77 (6th Cir. 1996); Cluxton v. Fifth Third Bank (In re Cluxton), 327 B.R. 612 (B.A.P. 6th
Cir. 2005). “De novo review means that the appellate court determines the law independently of the
trial court’s determination.” Treinish v. Norwest Bank Minn., N.A. (In re Periandri), 266 B.R. 651,
653 (B.A.P. 6th Cir. 2001).

                                                    III.    FACTS

         The Debtors are the owners of real property located in Clermont County, Ohio. They are also
owners of a titled 1996 Commodore Mobile Home (the “Mobile Home”), having purchased it after
Green Tree repossessed it from a prior title owner. The record is unclear whether the Mobile Home
is permanently affixed to the real property.2

         The Debtors acquired both the real property and the Mobile Home with monies loaned to
them by Green Tree pursuant to a Promissory Note executed by the parties and dated August 25,
1999 (the “Note”). As security for the loan, the Debtors executed an open-end mortgage that was
filed for record in the Clermont County Recorder’s Office on September 10, 1999. In addition,
Green Tree is listed as the first lienholder on the certificate of title for the Mobile Home. The
certificate of title to the Mobile Home was not surrendered to the county auditor.



         2
           According to Green Tree there is no dispute that the Mobile Home is permanently affixed to the real estate.
Green Tree asserts that both Green Tree’s appraiser and the Debtors testified that the M obile Home is permanently
affixed. On the other hand, the Debtors assert that it is not permanently affixed and that both Kenneth Davis and his
appraiser testified as such at the confirmation hearing. However, neither party provided the Panel with a transcript of the
proceedings at which this testimony occurred, apparently because the court’s electronic equipment malfunctioned and
the hearing was not recorded.

                                                            -3-
       The Debtors filed a petition for relief under chapter 13 of the Bankruptcy Code on October
25, 2006. On their Schedule D, the Debtors listed Green Tree as a secured creditor holding a claim
totaling $127,112.01, of which $40,000 was listed as secured by the real property and the Mobile
Home, with the $87,112.01 balance listed as unsecured. On Schedule A, the Debtors listed the value
of the real property as $25,000 and on Schedule B they listed the value of the Mobile Home as
$15,000. On October 31, 2006, Green Tree filed a claim in the amount of $131,605.15, which
includes an arrearage of $8,041.69.

       The Debtors proposed in their chapter 13 plan to pay Green Tree as secured in the amount
of $40,000, the combined value of the real property and the Mobile Home, with interest at the rate
of 9% per annum. The Debtors proposed to pay the remainder of Green Tree’s claim as a general,
unsecured, non-priority claim. Green Tree objected to confirmation of the Debtors’ chapter 13 plan
pursuant to 11 U.S.C. § 1322(b)(2) which, it asserts, prohibits the Debtors from modifying Green
Tree’s claim as proposed.

       The bankruptcy court held a hearing on April 12, 2007, and on May 24, 2007, issued an order
finding that the two tests used by bankruptcy courts in Ohio prior to the enactment of BAPCPA to
determine whether a mobile home was covered by the anti-modification provision of § 1322(b)(2)
are no longer applicable. The court held that the newly added definition in § 101(13A) of a “debtor’s
principal residence” brings the Debtors’ Mobile Home “under the protective ambit of § 1322(b)(2)
whether or not the certificate of title has been turned over to the county auditor and whether or not
the mobile home has been physically attached to the real property.” (Appellants’ Appx. at 3). The
court then sustained Green Tree’s objection to confirmation and permitted the Debtors 20 days to
file an amended plan. Rather than amend their plan, the Debtors timely sought leave to appeal this
interlocutory order.

                                        IV.    DISCUSSION

       Section 1322(b)(2) of the Bankruptcy Code provides that a debtor’s 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.” Pursuant to this provision of the Bankruptcy Code,
which is often referred to as the “anti-modification” provision, a debtor may modify a secured claim
unless the claim is secured by property that is (1) real property, (2) the debtor’s principal residence,

                                                  -4-
and (3) the only property securing the claim. See, e.g., Allied Credit Corp. v. Davis (In re Davis),
989 F.2d 208 (6th Cir. 1993) (focusing on whether there was additional collateral such that the anti-
modification provision did not apply).

        BAPCPA did not change the text of § 1322(b)(2). It added a definition of “debtor’s principal
residence” to § 101. Green Tree argues that because of the adoption of this definition, courts no
longer need to consider the first requirement of the relevant substantive provision of the Bankruptcy
Code, i.e., that the property in question is real property, so long as the property in question is the
debtor’s personal residence. The trial court agreed with Green Tree and, based on the reasoning
articulated by the bankruptcy court in Shepherd v. EMC Mortgage Corp. (In re Shepherd), 354 B.R.
505 (Bankr. E.D. Tenn. 2006), rev’d, 381 B.R. 675 (E.D. Tenn. 2008), found there was an ambiguity
or an absurdity created by reading the new definition with the unchanged substantive provision of
the Bankruptcy Code. The bankruptcy court in Shepherd looked at legislative history to divine the
congressional intent behind the addition of § 101(13A) to the Bankruptcy Code and concluded that
the intent was to eliminate the requirement that the property in question be real property under state
law. Similarly, the trial court in this case said it looked to the legislative history for assistance and
reached the same conclusion.

        The Panel disagrees, as have many courts addressing this issue, that there is ambiguity or
inconsistency. See Shepherd v. EMC Mortgage Corp. (In re Shepherd), 381 B.R. 675 (district court
reversing bankruptcy court); Moss v. GreenTree-AL, LLC (In re Moss), 378 B.R. 655 (S.D. Ala.
2007); In re McLain, 376 B.R. 492 (Bankr. D. S.C. 2007); In re Gearheart, No. 07-70232, 2007 WL
4463342 (Bankr. E.D. Ky. Dec. 14, 2007). The requirements of the anti-modification provision are
found in the plain language of § 1322(b)(2): (1) that the property is real property, (2) that the real
property is the debtor’s personal residence, and (3) that there is no additional collateral. The addition
of the definition of “debtor’s personal residence” affects the second requirement, but does not change
the analysis required to address the first requirement. As the District Court for the Southern District
of Alabama noted,

        Imposing the definition of “debtor’s personal residence” on Section 1322(b)(2)
        results only in the unstartling proposition that property can be a debtor’s personal
        residence even if it is personalty, but it cannot be subject to the no-modification
        provision unless it is realty. There is nothing absurd or illogical about such a state
        of affairs.

                                                   -5-
Moss, 378 B.R. at 658. Thus, it is not appropriate to look to the legislative history. Hughes Aircraft
Co. v. Jacobson, 525 U.S. 432, 438, 119 S.Ct. 755 (1999)(“As in any case of statutory construction,
our analysis begins with the ‘language of the statute.’. . . And where statutory language provides a
clear answer, it ends there as well.”)

         Furthermore, the legislative history is simply lacking. Green Tree’s counsel expressly
conceded this point at oral argument. He had no choice since there was no discussion of this section
in any recorded debate on the legislation in either house of Congress. The language on which the
bankruptcy court focused in Shepherd is but a close paraphrase of the statutory definition.3
Shepherd, 381 B.R. at 679 (citing Herrin v. GreenTree-Al., LLC (In re Herrin), 376 B.R. 316, 320
(S.D. Ala. 2007)). This purported legislative history provides no insight into the intent of its drafters
with respect to the added definition or of the Congress that adopted it. The Panel does not see this
“legislative history” as providing any basis to view the first requirement in § 1322(b)(2)–that the
property in question be real property–as altered.

         Applicable state law determines what is real property. See Cluxton v. Fifth Third Bank (In
re Cluxton), 327 B.R. 612 (B.A.P. 6th Cir. 2005) (applying Ohio law to determine whether a mobile
home is real property or personalty); see also In re McLain, 376 B.R. 492 (Bankr. D. S.C. 2007); In
re Fuller, No. 07-81073, 2007 WL 3244113 (Bankr. M.D. N.C. 2007); In re Bartolome, No. 07-
10731, 2007 WL 2774467 (Bankr. M.D. Ala. 2007). As noted by the bankruptcy court, citing
Cluxton, Ohio law has two tests to determine whether a mobile home is real property: (1) determine
whether the certificate of title to the mobile home had been turned over to the county auditor under
Ohio Revised Code § 4505.11(H)(1) or (2) apply the traditional fixture analysis under state law by
looking at the physical annexation of the home to the land, the use of the home, and the parties’
intent. See In re Cluxton, 327 B.R. at 614-15. The bankruptcy court found it undisputed that the
certificate of title for the Mobile Home has not been surrendered.4 However, it did not address the



         3
           “Section 306(c)(1) amends section 101 of the B ankruptcy Code to define the term ‘debtor’s principal
residence’ as a residential structure (including incidental property) without regard to whether or not such structure is
attached to real property. The term includes an individual condominium or cooperative unit as well as a mobile or
manufactured home, or a trailer.” H.R. Rep. No. 109-31(I), at 72 (2005) as reprinted in 2005 U.S.C.C.A.N. 88, 140.
         4
           The surrender of title to the county auditor’s office allows for an unambiguous characterization of mobile
homes as realty. In light of this clear state-law procedure, Green Tree as lender could have required its borrower to
follow that procedure as a condition of the loan.

                                                          -6-
second test under Ohio law. In addition, the record before us is not sufficient to allow us to make
a determination with respect to this test in the first instance. Therefore, the Panel remands so that
the bankruptcy court can make a determination as to whether the Mobile Home is real property under
Ohio law.

                                       V. CONCLUSION

       The Panel concludes that the addition of the defined term “debtor’s principal residence” did
not change the scope of the anti-modification provision contained in 11 U.S.C. § 1322(b). The anti-
modification provision remains applicable only to real property. Accordingly, the Panel reverses the
decision of the bankruptcy court and remands this case to the bankruptcy court for a determination
of whether the Mobile Home is real property under Ohio law.




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