
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-1956                                LOMAS MORTGAGE, INC.,                                      Appellant,                                          v.                            ESPERANDIEU & ANTONINE LOUIS,                                      Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Lynch, Circuit Judge,                                        _____________                      Aldrich and Bownes, Senior Circuit Judges.                                          _____________________                                 ____________________            John J.  Monaghan, with  whom Deborah Paige  Stone and  Sherburne,            _________________             ____________________      __________        Powers  & Needham, P.C. were  on brief, for  appellant Lomas Mortgage,        _______________________        Inc.            Gary  Klein, with  whom National  Consumer  Law Center,  Joseph G.            ___________             ______________________________   _________        Albiani  and Joseph  G.  Albiani and  Associates  were on  brief,  for        _______      ___________________________________        appellees Esperandieu and Antonine Louis.                                 ____________________                                    April 18, 1996                                 ____________________                      LYNCH, Circuit  Judge.   At issue is  the important                      LYNCH, Circuit  Judge.                             ______________            question of whether    1322(b)(2) of the Bankruptcy  Code, 11            U.S.C.    1322(b)(2),   prevents  Chapter  13   debtors  from            "stripping down" their  primary residence mortgages  when the            debtors  reside in  a multi-family  house.   "Stripping down"            would advantage such homeowners by permitting them to cap the            dollar amount of  the security  interest in the  home to  the            home's actual value rather than the higher amount of the note            itself.  The difference  would be treated as unsecured  debt.            That advantage is denied to resident single-family homeowners            by   1322(b)(2).                      This case  thus raises the question  of whether the            "strip  down"1 protections  which Congress  denied to  owners            residing in  single-family homes,  in order to  encourage the            flow of residential mortgage funds, are nonetheless available            to owner  occupants of  multi-family housing.   We hold  that            Congress intends exactly such  different results and that the            antimodification provision  of     1322(b)(2)  does  not  bar            modification of a secured  claim on a multi-unit  property in            which  one unit is  the debtor's principal  residence and the            security interest extends tothe other income-producing units.                                            ____________________            1.  The term "strip down" is a colloquialism used to describe            the  process by which a secured creditor's lien is limited to            the market value of its collateral.   The term "cram down" is            also commonly used to  describe this process.  See,  e.g., In                                                           ___   ____  __            re Wilson, 174 B.R. 215, 218 n.2 (Bankr. S.D. Miss. 1994); In            _________                                                  __            re Lutz, 164 B.R.  239, 241 (Bankr. W.D. Pa.  1994), rev'd on            _______                                              ________            other grounds, 192 B.R. 107 (W.D. Pa. 1995).                _____________                                         -2-                                          2                      Esperandieu and Antonine  Louis own a  three-family            home  at 221 Spring Street in Brockton, Massachusetts.  Lomas            Mortgage,  Inc. holds  the  mortgage on  the  property.   The            mortgage secures a  note executed on  February 19, 1987,  for            $159,300.   The  mortgage is  in the  standard FNMA  form for            single-family dwellings, with the standard FNMA one- to four-            family rider, including  an assignment of rents.  The Louises            hold a one-half interest  in the property.  The other half is            owned  by Mr.  Louis's brother,  who occupies a  second unit.            The third unit is leased to tenants.                      Between  the  time of  the  1987  mortgage and  the            filing  of  the  bankruptcy  petition on  January  22,  1995,            Massachusetts  suffered a  severe recession.   The  recession            resulted  in  a  general   decline  in  property  values,  in            unemployment,  and  other  harsh  realities.    The  Louises'            neighborhood in  Brockton was not immune  and foreclosures in            the  neighborhood became  common.   Eventually,  the  Louises            themselves  could not  meet  their mortgage  payments.   They            defaulted  on  the  note held  by  Lomas,  and Lomas  started            foreclosure  proceedings.    The Louises  filed  a  voluntary            petition under Chapter 13, and the foreclosure was stayed.                      The Louises then moved to bifurcate or "strip down"            Lomas's  claim into a secured  claim for the  actual value of            the property,  agreed to be  $80,000, and an  unsecured claim                                         -3-                                          3            for the balance, citing 11 U.S.C.   506(a).2  The     Louises            could  not take  advantage of    506(a), however,  if Lomas's            security  for the note extended only to real property that is            the  Louises'   principal  residence.      That  is   because              1322(b)(2), which governs Chapter 13 plans, provides:                      (b) Subject to subsections (a) and (c) of                      this section, the plan may --                           (2)   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,   or  of                           _____________________                           holders of unsecured claims, or                           leave unaffected  the rights of                           holders of any class of claims.            11 U.S.C.   1322(b)(2) (emphasis supplied).                      The Supreme  Court has  held that the  "other than"            language   of     1322(b)(2),  called   an  "antimodification                                            ____________________            2.    Section 506(a) provides, in pertinent part:                      An allowed claim of a creditor secured by                      a lien  on property  in which  the estate                      has an interest . . . is a secured  claim                      to  the  extent  of  the  value  of  such                      creditor's   interest  in   the  estate's                      interest in such property . . . and is an                      unsecured  claim to  the extent  that the                      value  of such creditor's  interest . . .                      is less  than the amount of  such allowed                      claim.            11  U.S.C.   506(a).  Section 506(a) allows a debtor to limit            a  creditor's secured  claim to  the value of  the underlying            collateral.   Any amount of  the secured claim  exceeding the            value of the collateral becomes unsecured.  Section 506(a) is            a general  provision under Chapter  5 of the  Bankruptcy Code            and thus  is applicable to individual  bankruptcy cases under            Chapter 13.  See 11 U.S.C.   103(a).                         ___                                         -4-                                          4            provision," In re  Hammond, 27  F.3d 52, 55  (3d Cir.  1994),                        ______________            bars  bifurcation  where  the  creditor's  secured claim  "is            secured only by a lien  on the debtor's principal residence."            Nobelman v. American Sav. Bank, 508 U.S. 324, 332 (1993).  In            ________    __________________            Nobelman, the  Supreme Court addressed  a Chapter 13  plan to            ________            modify  a  home  mortgage  lender's secured  claim  on  joint            debtors'   owner-occupied  condominium.    The  debtors  owed            $71,335 in principal, interest, and fees under a note payable            to  the  lender  and  secured  by  a  deed of  trust  on  the            condominium.  The debtors'  Chapter 13 plan proposed  to make            monthly  payments required  by the  note  up to  $23,500, the            value of  the residence, and,  relying on   506(a),  to treat            the remainder of  the lender's  claim as unsecured.   Id.  at                                                                  ___            326.    The lender  objected  to  the plan,  asserting  that,              506(a) notwithstanding,   1322(b)(2) prohibited the debtors            from  modifying its rights under the note secured by the deed            of  trust  on  the  condominium.   Although  noting  that the            debtors were  correct to seek valuation  pursuant to   506(a)            in  order  to determine  whether the  lender  in fact  held a            secured   claim,   the   Court  held   that   the   valuation            determination under   506(a)  "does not necessarily mean that            the  'rights' the  bank  enjoys  as  a mortgagee,  which  are            protected by    1322(b)(2), are  limited by the  valuation of            its secured claim [under   506(a)]."  Id. at 329.                                                  ___                                         -5-                                          5                      Determining that the term "rights"  in   1322(b)(2)            refers   to  rights  reflected   in  the   relevant  mortgage            instrument enforceable  by state law,  the Court held  that              1322(b)(2)  prohibited  the   debtor  from  bifurcating   the            lender's claim into  secured and unsecured portions.   Id. at                                                                   ___            331-32.    Because  the   lender's  contractual  rights  were            contained in a unitary  note, it would be impossible  for the            debtor to modify the rights of the lender as to the unsecured            portion  of its claim without also modifying the terms of the            secured  component.   Id.   Thus,  the  court held,  "to give                                  ___            effect to    506(a)'s valuation  and  bifurcation of  secured            claims through  a Chapter 13  plan in the  manner petitioners            propose  would require  a modification of  the rights  of the            holder  of the security interest."  Id. at 332. Thus Nobelman                                                ___              ________            provides that if a lender's claim "is secured only by  a lien            on the debtor's principal residence," id.,  bifurcation under                                                  ___              506(a) will, in most cases, be prohibited.                      Nobelman,  however, did not address the question of                      ________            what secured claims  would be considered  "secured only by  a            security  interest  in real  property  that  is the  debtor's            principal  residence."   11  U.S.C.    1322(b)(2).   Nobelman                                                                 ________            noted that one  of the purposes of the provision  was to give            special protection to home lenders  in order to encourage the            flow  of capital into the home lending market.  See Nobelman,                                                            ___ ________            508  U.S. at 332 (Stevens,  J., concurring) (citing Grubbs v.                                                                ______                                         -6-                                          6            Houston  First Am. Sav. Ass'n, 730 F.2d 236, 245-46 (5th Cir.            _____________________________            1984)).  The  precise question of whether home  lenders whose            security interest extended beyond the principal residence  to            other  property or  other income-producing components  of the            principal  residence  could  be  considered  to  have  claims            secured "only by a security interest in real property that is            the debtor's principal residence" was not raised in Nobelman.                                                                ________            This case raises that question.                      In  their motion before  the bankruptcy  court, the            Louises  argued  that   the  antimodification  provision   of              1322(b)(2), as  interpreted by Nobelman, did  not reach the                                             ________            security  interest Lomas  had  on 221  Spring Street  because            Lomas's security  interest extended  to the  entire property,            including  the income-producing components.   Lomas objected,            arguing  that      1322(b)(2)'s  antimodification   provision            applied because its  security interest was only on 221 Spring            Street  and  the  property  included  the  Louises' principal            address.   The bankruptcy court  agreed with the  Louises and            allowed the motion to bifurcate.  The district court affirmed            the  order  and Lomas  appeals.    Review  of the  bankruptcy            court's conclusion of law is de novo.  See In re Winthrop Old                                         __ ____   ___ __________________            Farm Nurseries, Inc., 50 F.3d 72, 73 (1st Cir. 1995).            ____________________                      The  Louises' "principal  residence" is  221 Spring            Street.     Were   the   property  a   single-family   house,              1322(b)(2)'s antimodification provision surely  would apply                                         -7-                                          7            and bar bifurcation,  assuming Lomas's security interest  did            not extend  to any other property.  See, e.g., In re Hammond,                                                ___  ____  _____________            27  F.3d 52  (3d  Cir. 1994)  (note secured  by  home and  by            personal  property  within  the  home  is  outside  scope  of            antimodification provision); see also 5 Collier on Bankruptcy                                         ___ ____   _____________________              1322.06[1][a], at 1322-21 to 1322-23 (Lawrence P. King ed.,            15th ed. 1995) (a claim secured by any other real property or            by  personal property of the estate or debtor, or by personal            property of another may be modified by the Chapter 13 plan).                      Starting,  as they  should,  with the  language  of              1322(b)(2),   see  Consumer  Prod.  Safety  Comm'n  v.  GTE                            ___  _______________________________      ___            Sylvania, Inc., 447 U.S. 102, 108 (1980) ("the starting point            ______________            for  interpreting a  statute is the  language of  the statute            itself"),   Lomas   and   the   Louises   present   competing            constructions of  the statutory language.   Lomas argues that            the  term "only"  modifies "by  a security  interest  in real            property"  and  the  term  "that is  the  debtor's  principal            residence" further modifies "real property."  Lomas's reading            results  in     1322(b)(2)  applying when  (1)  the  security            interest  is only in  real property (as  opposed to personal,            intangible  or  other non-real  property)  and  (2) the  real            property is  the "debtor's principal residence."   Under this            reading,  there is no need  that the real  property be "only"            the debtor's principal residence.                                         -8-                                          8                      The  Louises,  in contrast,  argue (1)  that "only"            modifies  the entire phrase  "by a security  interest in real            property that  is the debtor's principal  residence"; and (2)            that the  word "is" requires complete  and exclusive identity            between "real property" and "principal residence."3                      Lomas criticizes the Louises' reading on the ground            that the  statutory language  does not explicitly  state that            the  real  property   must  be  "exclusively"  the   debtor's            principal  residence.  The  Louises criticize Lomas's reading            on the ground that the statutory language does not explicitly            state  that  the  real  property  must  merely  "contain"  or            "include" the principal residence.                      The  "plain  meaning"   approach  to     1322(b)(2)            appears to us to be, in  the end, inconclusive.  The disputed            terms could  (as Lomas claims)  serve the limited  purpose of            distinguishing  security  interests  in  real  property  from            security interests in personal or  other property.  But  they            could also  (as the  Louises claim)  serve  the more  general                                            ____________________            3.  The  Louises' reading  is the  approach preferred  in the            case law.   See In re  Adebanjo, 165 B.R. 98,  104 (Bankr. D.                        ___ _______________            Conn. 1994)  (collecting cases);  accord In re  McGregor, 172                                              ______ _______________            B.R. 718, 720  (Bankr. D. Mass. 1994) ("If [Congress intended            to extend   1322(b)(2) to multi-unit buildings,] the  statute            should refer to real  property that 'includes' the residence.            Instead, the word 'is' appears, which more aptly describes an            equivalence between the real  estate and the residence."); In                                                                       __            re  Legowski, 167  B.R. 711,  714-15 (Bankr.  D. Mass.  1994)            ____________            (employing  same  plain  meaning  argument); but  see  In  re                                                         ________  ______            Guilbert,  165 B.R.  88, 90  (Bankr. D.R.I.  1994) (rejecting            ________            that  plain meaning  approach), rev'd  on other  grounds, 176                                            ________________________            B.R. 302 (D.R.I. 1995).                                         -9-                                          9            purpose of distinguishing lenders secured only by a principal            residence from lenders who may have additional security.  Cf.                                                                      ___            In re Legowski, 167 B.R. 711,  714 n.9 (Bankr. D. Mass. 1994)            ______________            ("Meaning   is  always   plain   to  the   proponent  of   an            interpretation.").   "When ambiguity is identified, a dispute            about a statute's or  regulation's proper construction cannot            be resolved simply by placing the gloss of 'plain meaning' on            one  competing interpretation."   Massachusetts v. Blackstone                                              _____________    __________            Valley Elec. Co., 67 F.3d 981, 986 (1st Cir. 1995).              ________________                      Given  the  lack  of  plain  meaning,  we  turn  to            legislative  history  for guidance.    See  United States  v.                                                   ___  _____________            O'Neil,  11  F.3d 292,  297-98  (1st  Cir. 1993)  (resort  to            ______            legislative  history  is  proper  where "there  is  room  for            disagreement" over  the meaning of statutory  language).  The            legislative history of   1322(b)(2) does  not clearly resolve            the issue.                      Section  1322(b)(2)  was  enacted  as  part  of the            Bankruptcy Code of 1978.  The Bankruptcy Code of 1978 was the            culmination of a legislative process that  began in 1970, the            year the  Congress created  the Commission on  the Bankruptcy            Laws of the United  States.  In 1973 the  Commission issued a            report  containing  its findings  and  recommendations  and a            draft bill.  Section 6-201(2)  of the Commission's draft bill            was the  predecessor of what eventually  became   1322(b)(2).            It  provided  that a  plan  under  Chapter  13  "may  include                                         -10-                                          10            provisions dealing with  claims secured by personal  property            severally,  on any terms, and  may provide for  the curing of            defaults  within a  reasonable  time and  otherwise alter  or            modify the rights of the holders of such claims."   Report of            the Commission on  the Bankruptcy Laws of  the United States,            H.R.  Doc.  No. 137,  93d Cong.,  1st Sess.,  pt. II,  at 204            (1973).  The focus  of this provision was on  modification of            claims  secured by  personal property.   It  apparently would            have  left  largely  untouched  then existing  law  in  which            security interests  in real  property were excluded  from the            provisions of Chapter  XIII.  See id. pt. I,  at 165 (stating                                          ___ ___            that claims that may be dealt with under Chapter XIII include            secured  and unsecured  claims,  but that  claims secured  by            estates  in real  property or  "chattels real"  were excluded            from Chapter XIII).4                      But the  bill as  reported out  of the House,  H.R.            8200, had quite different language in    1322(b)(2) than that            proposed  by the  Commission Report.   H.R. 8200  provided in              1322(b)(2) that a debtor's plan might "modify the rights of            holders of secured claims or of holders of unsecured claims."            See H.R.  8200, 95th  Cong., 1st  Sess.    1322(b)(2) (1977).            ___                                            ____________________            4.  The  Commission did  provide in  section 6-201(4)  that a            plan  may include  provisions  for curing  defaults within  a            reasonable time on claims  secured by a lien on  the debtor's            residence.   See Report on  the Commission on  the Bankruptcy                         ___            Laws  of the United States, H.R. Doc. No. 137, 93d Cong., 1st            Sess., pt. II, at 204.                                          -11-                                          11            Although the accompanying  House Report did not  specifically            state  that this  language  would allow  for modification  of            secured claims in real as well as personal property, see H.R.                                                                 ___            Rep.  No. 595, 95th Cong.,  1st Sess. 124  (1977), the report            does not  suggest that the  term "claim" which  otherwise has            quite broad application, should  somehow be limited to claims            in personal property in this context.                      H.R. 8200 was passed  by the House and sent  to the            Senate,  but  the  Senate  chose  to consider  simultaneously            S. 2266, which had been reported out  of the Senate Judiciary            Committee on July  14, 1978.  The version of    1322(b)(2) in            S. 2266 provided that a debtor's  plan may "modify the rights            of  holders  of  secured  claims (other  than  claims  wholly            secured  by mortgages  on  real property)  or  of holders  of            unsecured   claims."     S.  2266,   95th  Cong.,   2d  Sess.              1322(b)(2) (1978).                      This language, which would preclude modification of            any claim wholly secured  by a real estate mortgage,  appears            to have been the  product of testimony given  during hearings            before  a  Senate  Judiciary Committee  subcommittee  to  the            effect  that  H.R.  8200 would  cause  "residential  mortgage            lenders to be extraordinarily conservative in making loans in            cases where the general financial resources of the individual            borrower are  not particularly strong."   See Hearings Before                                                      ___            the Subcomm. on Improvements of the Judicial Machinery of the                                         -12-                                          12            Senate  Comm.  on the  Judiciary, 95th  Cong., 1st  Sess. 707            (1977) (statement of Edward  J. Kulik, Senior Vice President,            Real  Estate  Div., Mass.  Mut. Life  Ins.  Co.).   Mr. Kulik            recommended  that H.R. 8200 should be changed so that, at the            least,  "a mortgage  on real  property other  than investment            property may not  be modified."  Id. at 714.   When Mr. Kulik                                             ___            was specifically  asked  about  the effect  of  the  bill  on            individual  home  mortgages  (as  opposed to  its  effect  on            limited partnerships), Mr. Kulik's attorney, Robert O'Malley,            asked  to speak and said, "savings and loans will continue to            make  loans to individual  homeowners, but they  will tend to            be,   I  believe,   extraordinarily  conservative   and  more            conservative than they are now  in the flow of credit."   Id.                                                                      ___            at 715.                      The final  version of   1322(b)(2)  came after H.R.            8200 and  S. 2266  (passed by the  Senate as an  amendment to            H.R. 8200)  were  shaped into  a  compromise bill  through  a            series of  agreed-upon floor  amendments.   As  part of  that            process,  the   Senate  backed  off  its   position  that  no            modifications would  be permitted of any  mortgage secured by            real  estate  and  agreed to  more  limited  antimodification            language for   1322(b)(2).  Modification would not be allowed            on  claims  "secured only  by  a  security interest  in  real                                         -13-                                          13            property  that  is the  debtor's  principal  residence."   11            U.S.C.   1322(b)(2).5                      This  legislative history  does  tend to  show that            with    1322(b)(2) Congress wanted to benefit the residential            mortgage market as opposed to the entire real estate mortgage            market.  It also  might suggest that a distinction  should be            drawn between the residential  mortgage market and the market            for  investment  property.    Nevertheless,  the  legislative            history does not state with clarity how a mortgage on a mixed            property,   one  with   both   residential   and   investment            characteristics, should be  treated.  While  Congress debated            over  whether to  protect all  real estate lenders or no real            estate  lenders and    eventually  compromised on  protecting            residential  mortgages,  Congress did not focus on what to do            in the multi-family context.                                            ____________________            5.      The explanatory  statement  of  the provision,  while            noting the  Senate's compromise  on the mortgage  issue, does            not state the extent of the compromise:                      Section 1322(b)(2) of the House amendment                      represents a compromise agreement between                      similar  provisions in the House bill and                      Senate   amendment.   Under   the   House                      amendment, the plan may modify the rights                      of holders of secured claims other than a                      claim secured  by a security  interest in                      real  property  that   is  the   debtor's                      principal residence.  It is intended that                      a claim secured by the debtor's principal                      residence  may  be  treated   with  under                      section    1322(b)(5)   of    the   House                      amendment.            124 Cong. Rec. H11106 (daily ed. Sept. 28, 1978).                                         -14-                                          14                      Lomas  suggests  that there  is  no  need for  such            specific evidence  in the legislative history.   According to            Lomas, it  is enough that  Congress intended to  protect home            mortgage lenders.  Lomas  argues that a mortgage on  a three-            family house is  just as much a "home" mortgage as a mortgage            on a single-family house, and that any distinction  between a            three-family and one-family for  these purposes is arbitrary.            If one accepts this premise,6  Lomas's point has some  force.            If the antimodification provision  is meant to encourage home            lending,  then excluding  multi-family  houses would  tend to            harm (in  relative terms) those purchasing  property in urban            neighborhoods, where owner-occupied multi-unit  housing would            tend to be more common, and to favor those purchasing single-            family  homes, more common in  suburbia.  The  theory is that            lenders would  face relatively  more risk of  modification in            the case of  default in  urban areas, and  interest rates  on            loans in those areas would rise accordingly.  The legislative            history   certainly  does  not  show  Congress  intended  the                                       ___            antimodification  provision  of      1322(b)(2)  to   benefit            suburbanites to a greater degree than city dwellers.                      Still,  the legislative  history is  silent on  the            scope of the incentive Congress wished to give home  lenders.            Congress  certainly could have  viewed single-family homes as                                            ____________________            6.  The Louises dispute this assertion.  They claim  that the            underwriting  practices for  two-  to four-family  houses are            different from those for single-family houses.                                          -15-                                          15            less likely to be secured by other collateral, such as rents,            than  multi-family  properties.    Further,  condominiums are            common  in  cities and  a  condominium  in which  the  debtor            resides is  covered by the antimodification provision.    See                                                                      ___            Nobelman, 508  U.S. at 332.  This blunts some of the force of            ________            Lomas's claim that the Louises' interpretation would create a            disparate   and   perhaps    unfair   application   of    the            antimodification provision.                       Additionally,   extending    the   antimodification            provision  to   multi-family  houses  would   also  create  a            difficult  line-drawing  problem.   It  is unlikely  Congress            intended the antimodification provision  to reach a  100-unit            apartment complex  simply because the debtor lives  in one of            the  units.    Limiting  the  antimodification  provision  to            single-family  dwellings creates  a more  easily administered            test.                      We  are left  then  without clear  guidance on  the            question here  from either  the  language or  contemporaneous            legislative history  of   1322(b)(2).  But  there is guidance            from  another source:  the amendments to Chapter 11 contained            in  the Bankruptcy Reform Act  of 1994, Pub.  L. No. 103-394,            108 Stat.  4106 (1994) (codified in scattered  sections of 11            U.S.C.).  In those  amendments Congress referred favorably to            case law  under Chapter 13 holding  that the antimodification            provision  did  not   apply  to  multi-family   housing,  and                                         -16-                                          16            established  that it  wished petitions  under Chapter  11 and            Chapter 13 to treat the matter in the same way.                      As part of the 1994 Act and post-Nobelman, Congress                                                       ________            added for  the first  time a home  mortgagee antimodification            provision to Chapter  11.  See Pub. L. No. 103-394, Title II,                                       ___              206,  Oct. 22 1994, 108  Stat. 4123 (codified  at 11 U.S.C.              1123(b)(5)) (a Chapter  11 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  antimodification  language  of              1123(b)(5)  is  identical to  that  of    1322(b)(2).   The            legislative  history of    1123(b)(5)  reveals that  Congress            deliberately   tracked   the  antimodification   language  of              1322(b)(2) and  intended  conformity of  treatment  between            Chapter 13 and Chapter 11:                      This amendment conforms the  treatment of                      residential  mortgages  in chapter  11 to                      that  in  chapter   13,  preventing   the                      modification of the rights of a holder of                      a  claim  secured   only  by  a  security                      interest   in   the  debtor's   principal                      residence.            H.R.  Rep. No. 835, 103d Cong., 2d Sess. 46 (1994), reprinted                                                                _________            in 1994 U.S.C.C.A.N. 3340, 3354.            __                      More  importantly,  the   legislative  history   of              1123(b)(5) specifies  the  limits of  its  antimodification            provision.  That history specifies that the  antimodification            provision of   1123(b)(5)                                         -17-                                          17                      does  not apply to a commercial property,                      or  to  any   transaction  in  which  the                      creditor  acquired  a  lien  on  property                      other  than real  property  used  as  the                      debtor's residence.            Id.  (footnote omitted).    This passage  from the  Judiciary            ___            Committee Report refers to In re Ramirez, 62 B.R. 668 (Bankr.                                       _____________            S.D.  Cal.  1986), as  an  example  of a  case  in  which the            antimodification  provision of  Chapter 11  would not  apply.            See H.R.  Report  No.  835  at  46 n.13.    Ramirez,  a  case            ___                                         _______            construing  the  antimodification provision  of   1322(b)(2),            squarely  holds  that   the  antimodification  provision   of              1322(b)(2) does  not apply  to multi-unit houses  where the            security interest extends  to the rental units.7   Given this            clear  expression  of  congressional  intent,  the  inference            becomes    quite   strong   that    Congress   believes   the            antimodification provision in Chapter  13 does not reach such            multi-unit properties.  Cf. 5 Collier on Bankruptcy, supra,                                      ___   _____________________  _____            1322.06[1][a], 1322-23  n.13 (stating that  Ramirez was cited                                                        _______            by Congress in the Bankruptcy Reform Act of 1994 as a correct            statement of the current law of   1322(b)(2)).                        That this evidence  from the 1994 Act is  a species            of subsequent, not contemporaneous, legislative history gives            us little pause.  "Although subsequent legislative history is                                            ____________________            7.  In  Ramirez  the  lender  held  a  security  interest  in                    _______            property  that consisted of  the debtor's principal residence            and two rental units.   See 62 B.R. at 668-69.  The  facts of                                    ___            Ramirez do not  appear to be distinguishable in  any relevant            _______            way from the facts here.                                         -18-                                          18            less   authoritative    than   contemporaneous   explanation,            subsequent  Congressional declaration of  an act's  intent is            entitled   to  great   weight  in   statutory  construction."            Roosevelt Campobello  Int'l Park  Comm'n v. E.P.A.,  711 F.2d            ________________________________________    ______            431,  436-37 (1st  Cir. 1983)  (citing  Seatrain Shipbuilding                                                    _____________________            Corp. v. Shell Oil Co., 444  U.S. 572, 596 (1980)).  The 1994            _____    _____________            Act evidences  a deliberate  choice on  the part of  Congress            under Chapter 11 to  exclude security interests in multi-unit            properties   like   that  here   from   the   reach  of   the            antimodification  provision based  on its  understanding that            Chapter  13's antimodification  provision did not  reach such            security  interests.     To  disregard  such  evidence  would            frustrate the  uniform treatment under Chapters 11  and 13 of            secured interests  in debtors' principal residences  that was            so clearly Congress's aim in amending   1123(b)(5).                      We  hold that  the  antimodification  provision  of              1322(b)(2) does not bar modification of a  secured claim on            a  multi-unit property  in  which one  of  the units  is  the            debtor's   principal  residence  and  the  security  interest            extends to the other income-producing units.  Because Lomas's            security interest  extends to the additional  rental units of            221   Spring  Street,   the  antimodification   provision  of                                         -19-                                          19              1322(b)(2) does not apply to that interest, and bifurcation            pursuant to   506(a) is appropriate.8                      If  we  are wrong  as  to  what Congress  intended,            legislation can provide a correction.  Affirmed.  Parties  to                                                   ________   ___________            bear their own costs.             ____________________                                            ____________________            8.  The  Louises  have presented  an  alternative theory  for            holding  the  antimodification   provision  of     1322(b)(2)            inapplicable  to Lomas's  security  interest  in  221  Spring            Street.  The Louises point out  that Lomas is entitled to the            rents from  221 Spring  Street under  an assignment of  rents            provision.   The Louises  argue that under  Massachusetts law            the assignment  of rents provision is  additional security in            other,  non-real  property,   and  that,  consequently,   the            antimodification provision would not  apply.  See Hammond, 27                                                          ___ _______            F.3d at  57.  Lomas  disputes the Louises'  interpretation of            Massachusetts law, however, arguing that in  Massachusetts an            assignment  of  rents  is  not separate  from  a  mortgagee's            interest in the real  property.  In light of  our disposition            of the case, we need not resolve this question.                                             -20-                                          20
