     07-3962-bk(L)
     In Re: Faith Ann Peaslee


 1                               UNITED STATES COURT OF APPEALS
 2
 3                                     FOR THE SECOND CIRCUIT
 4
 5                              ____________________________________
 6
 7                                         August Term, 2008
 8
 9   (Argued:     September 25, 2008                                    Decided: October 9, 2009)
10
11      Docket Nos. 07-3962-bk(L); 07-3952-bk(CON); 07-3964-bk(CON); 07-3986-bk(CON); 07-
12                                         3990-bk(CON)
13                           ____________________________________
14
15      IN RE: FAITH ANN PEASLEE, JONATHAN T. VANMANEN, MICHAEL COLOMBAI,
16                    SHANNON A. COLOMBAI, PAMELA D. JACKSON
17
18                                         ________________
19
20                                       GEORGE M. REIBER,
21
22                                        Defendant-Appellant,
23
24                                               – v. –
25
26    GMAC, LLC, FORD MOTOR CREDIT COMPANY, GENERAL MOTORS ACCEPTANCE
27             CORPORATION, SOVEREIGN BANK, HSBC AUTO FINANCE,
28
29                                        Plaintiffs-Appellees.
30
31                              ____________________________________
32
33                       Before: CALABRESI, STRAUB, and RAGGI, Circuit Judges.
34
35                              ____________________________________
36
37           Appeal from a judgment of the United States District Court for the Western District of
38   New York reversing a decision of the Bankruptcy Court and holding that negative equity on a
39   trade-in vehicle is included in the purchase money security interest accompanying a new car’s
40   purchase and is therefore protected from cramdown by the Hanging Paragraph of Section 1325 of
41   the Bankruptcy Code. Because we found that this case raised an important and recurring

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 1   question of New York state law—whether negative equity is included in a purchase money
 2   security interest under New York’s interpretation of the Uniform Commercial Code
 3   (“U.C.C.”)—we certified that question to the New York Court of Appeals. The Court of Appeals
 4   answered the question in the affirmative. Accordingly, we now AFFIRM.
 5
 6           .                      _________________________
 7
 8                                  GEORGE M. REIBER, Rochester, N.Y., Pro se.
 9
10                                  BARKLEY CLARK (Katherine M. Sutcliffe Becker, on the brief),
11                                  Stinson Morrison Hecker, LLP, Washington, D.C., for Plaintiffs-
12                                  Appellees GMAC, LLC and Ford Motor Credit Company.
13
14                                  Matthew J. McGowan, Salter McGowan Sylvia & Leonard, Inc.,
15                                  Providence, R.I., for Plaintiff-Appellee Sovereign Bank.
16
17                                  Martin A. Mooney, Mark D. Glastetter, Bonnie S. Baker, Deily
18                                  Mooney & Glastetter, LLP, Albany, N.Y., for Plaintiff-Appellee
19                                  HSBC Auto Finance.
20
21                                  Richard Lieb, St. John’s University School of Law, Jamaica, N.Y.
22                                  (Ingrid M. Hillinger, of counsel), for Amici Curiae Ingrid M.
23                                  Hillinger, Michael Hillinger, Adam J. Levitin, Michael M. White,
24                                  and Jean Braucher in Support of Defendant-Appellant.
25
26                                  Lewis W. Siegel (Tara Twomey, of counsel), New York, N.Y., for
27                                  Amicus Curiae National Association of Consumer Bankruptcy
28                                  Attorneys in Support of Defendant-Appellant.
29
30                                  James J. White, Ann Arbor, MI, for Amici Curiae American
31                                  Financial Services Association and National Automobile Dealers
32                                  Association in Support of Plaintiffs-Appellees.
33                                  _____________________________________
34

1    Per Curiam:

2            This consolidated appeal raises the question of whether the portion of an automobile

3    retail instalment sale obligation attributable to a trade-in vehicle’s “negative equity” (i.e., debt

4    owed above and beyond the current collateral value of the traded-in vehicle) should be



                                                       -2-
 1   considered part of the purchase-money security interest arising from the sale of a vehicle, and

 2   therefore protected from cramdown by the “hanging paragraph” of Section 1325 of the

 3   Bankruptcy Code. We assume familiarity with the facts and the procedural history of this case as

 4   outlined in our prior opinion, see In re Peaslee, 547 F.3d 177 (2d Cir. 2008),

 5   which in turn drew from the Bankruptcy Court and District Court opinions in this case, see Gen.

 6   Motors Acceptance Corp. v. Peaslee, 373 B.R. 252 (W.D.N.Y. 2007); In re Peaslee, 358 B.R.

 7   545 (Bankr. W.D.N.Y. 2006).

 8   I. Background

 9          As we explained previously, car buyers purchasing new cars often engage in what are

10   called purchase-money transactions in which a seller retains an interest in the good sold (i.e., the

11   car) to secure payment of all or part of its price. This interest is known as a “purchase-money

12   security interest,” or PMSI. See In re Peaslee, 547 F.3d at 180. Not infrequently, when car

13   buyers trade in old cars, the value of the debt the buyer owes on the old car exceeds the car’s

14   street value. “Adjusting the sales contract for a new vehicle to account for this deficiency is

15   known as ‘rolling in’ the negative equity.” Id. Whether this negative equity is part of the PMSI

16   becomes a matter of significance because of 11 U.S.C. § 1325(a)(*), the so-called “hanging

17   paragraph.” While a Chapter 13 debtor may generally establish a plan that allows her to retain a

18   vehicle and bifurcate a creditor’s claims into secured and unsecured portions based on the value

19   of that vehicle in what is called a cramdown, see 11 U.S.C. § 1325(a)(5)(B), the hanging

20   paragraph establishes an exception. This provision prohibits the cramdown of PMSIs secured by

21   an automobile purchased within 910 days of the debtor’s bankruptcy filing. See 11 U.S.C. §




                                                      -3-
1    1325(a)(*).1

2           A PMSI is not defined in the hanging paragraph or elsewhere in the federal Bankruptcy

3    Code, and we have previously held that state law governs its definition. See In re Peaslee, 547

4    F.3d at 184. Specifically, we found that the definition of PMSI was controlled by the proper

5    construction of “purchase-money obligation,” which Section 9-103(a)(2) of the U.C.C. describes

6    as an obligation “incurred as all or part of the price of the collateral or for value given to enable

7    the debtor to acquire rights in or the use of the collateral if the value is in fact so used.” N.Y.

8    U.C.C. § 9-103(a)(2).2 Recognizing both that this issue had not been addressed by any court of

9    the State of New York and that it was certain to recur, see In re Peaslee, 547 F.3d at 183–84, we

10   certified the following question to the New York Court of Appeals:

11          Is the portion of an automobile retail instalment sale attributable to a trade-in
12          vehicle’s “negative equity” a part of the “purchase-money obligation” arising from


            1
               The hanging paragraph was added to the Bankruptcy Code by the Bankruptcy Abuse
     Prevention and Consumer Protection Act of 2005 (“BAPCPA”), Pub. L. No. 109-8, 119 Stat. 23.
     It provides in full:
             For purposes of paragraph (5), section 506 shall not apply to a claim described in
             that paragraph if the creditor has a purchase money security interest securing the
             debt that is the subject of the claim, the debt was incurred within the 910-day [sic]
             preceding the date of the filing of the petition, and the collateral for that debt
             consists of a motor vehicle (as defined in section 30102 of title 49) acquired for
             the personal use of the debtor, or if collateral for that debt consists of any other
             thing of value, if the debt was incurred during the 1-year period preceding that
             filing.
     Id. (emphasis added).
            2
               As the New York Court of Appeals explained, the relevant provisions of the U.C.C.
     interrelate. Under N.Y. U.C.C. § 9-103(b), a security interest in a good “is a purchase-money
     security interest . . . to the extent that the goods are purchase-money collateral with respect to that
     security interest.” See In re Peaslee, 13 N.Y.3d 75, 80 (2009) (quoting U.C.C.). “[P]urchase-
     money collateral” is in turn defined as “goods or software that secures a purchase-money
     obligation incurred with respect to that collateral.” N.Y. U.C.C. § 9-103(a)(1). This makes
     “purchase-money obligation,” defined in § 9-103(a)(2), the key term for interpreting PMSI.

                                                       -4-
 1          the purchase of a new car, as defined under New York’s U.C.C.?

 2          The New York Court of Appeals accepted certification and, in a divided opinion issued

 3   on June 24, 2009, answered the question in the affirmative. On July 16, 2009, we invited the

 4   parties to submit letter briefs on the effect of the Court of Appeals’ decision. We now resolve

 5   the case before us by AFFIRMING the judgment of the District Court.

 6   II. Discussion

 7           In its interpretation of N.Y. U.C.C. § 9-103(a)(2), the New York Court of Appeals

 8   explained that there are two ways that a purchase-money obligation may arise: “(1) where the

 9   obligor-the debtor-incurs an obligation as all or part of the ‘price’ of the collateral, or (2) where

10   ‘value’ is given to enable the debtor to acquire the collateral.” In re Peaslee, 13 N.Y.3d at 80.

11   The court concluded that negative equity fits within either definition, id., and found further, as

12   Comment 3 to § 9-103 of the U.C.C. requires, that there was a “close nexus between the

13   acquisition of collateral and the secured obligation” because the financing of negative equity is

14   integral to the completion of the sale of a new car, id. at 82. As a result, the Court of Appeals

15   concluded that the portion of an automobile retail instalment sale attributable to a trade-in

16   vehicle’s negative equity does constitute a purchase-money obligation under New York’s U.C.C.

17   Id.

18          The New York Court of Appeals’ answer to our certified question is determinative of the

19   case before us. We now know that, under New York law, negative equity is considered a

20   purchase-money obligation and therefore included in a PMSI. Accordingly, because the other

21   conditions for avoiding cramdown under the hanging paragraph were not contested by the




                                                       -5-
1   parties,3 debtor-appellants’ entire claims, including those portions attributable to the payoff of

2   negative equity on their trade-in vehicles, must be treated as secured claims. As a result,

3   creditor-appellees are immune from cramdown and bifurcation of their full security interest in

4   debtor-appellants’ cars, including that portion deriving from the negative trade-in value of their

5   prior cars.4

6           The judgment of the District Court, which reversed the Decisions and Orders of the

    Bankruptcy Court for the Western District of New York, is AFFIRMED.




            3
              In deciding the appeals from the bankruptcy court, the District Court indicated that
    “there is no dispute that three of the four conditions in § 1325 for avoiding cramdown have been
    met: each of the debtors incurred debt by purchasing a motor vehicle for the debtor’s personal
    use within 910 days prior to filing the bankruptcy petition.” Peaslee, 373 B.R. at 257. In its
    initial briefing before this Court, appellants vigorously contested the fourth condition: whether
    debt from previously purchased cars, including those purchased more than 910 days before the
    bankruptcy filing, should be treated as PMSI when it is “rolled in” to the debt for a new purchase.
    They made no argument that the facts of this case might cast doubt on the existence of any other
    requirement of the hanging paragraph. Accordingly, we treat such questions as waived.
            4
              After our decision to certify, several other circuit courts addressed the question at issue
    here and, applying the laws of various states, held, like the New York Court of Appeals, that the
    amount financed under a motor vehicle retail instalment sale contract for negative equity is part
    of a PMSI. See In re Dale, — F.3d —, 2009 WL 2857998, at *6 (5th Cir. Sept. 8, 2009); In re
    Mierkowski, — F.3d —, 2009 WL 2853586, at *2 (8th Cir. Sept. 8, 2009); In re Ford, 574 F.3d
    1279, 1285 (10th Cir. 2009); In re Price, 562 F.3d 618, 625–28 (4th Cir. 2009). The Eleventh
    Circuit also reached this conclusion in a case decided before our certification opinion. See In re
    Graupner, 537 F.3d 1295, 1302 (11th Cir. 2008).

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