                                    United States Court of Appeals,

                                              Fifth Circuit.

                                              No. 91–4686.

                   In the Matter of Alvin and Eddie Mae WASHINGTON, Debtors.

 RTC, as Conservator for Oak Tree Federal, substituted in place and stead of Oak Tree Savings
Bank, S.S.B., Appellant,

                                                    v.

                           Alvin and Eddie Mae WASHINGTON, Appellees.

                                              Aug. 4, 1992.

Appeal from the United States District Court for the Western District of Louisiana.

Before SMITH and EMILIO M. GARZA, Circuit Judges, and KENT, District Judge.**

          ELIO M. GARZA, Circuit Judge:

          Using their Louisiana residence as security, Alvin and Eddie Mae Washington (the

Washingtons) obtained a loan from Oak Tree Savings Bank, S.S.B. (Oak Tree), on June 29, 1989.

When effecting this loan, the Washingtons elected to take out credit life1 and disability insurance

through Oak Tree; this insurance was not a requirement for making the loan. On September 5, 1990,

faced with a threatened suit and foreclosure against their residential property, the Washingtons filed

a joint Chapter 13 petition in bankruptcy court and submitted a plan for paying the debt due Oak

Tree.2 Oak Tree objected to this plan on the grounds that its claim against the Washingtons is

secured "only by a security interest in real property that is the debtor's principal residence[,]" and that




   *
       District Judge of the Southern District of Texas, sitting by designation.
   1
     The term "credit life" commonly refers to "insurance sold to debtors for the purpose of
satisfying any unpaid balance of the debt existing upon death of the debtor during the intended
term of a loan." In re Stiles, 74 B.R. 708, 710 (Bankr.N.D.Ala.1987).
   2
    The promissory note executed by the Washingtons on June 29, 1989 made $16,102.90 in
principal payable to Oak Tree at a 12.5 percent interest rate. The note was to be paid in thirty six
equal monthly installments of $538.70. The proposed plan submitted by the Washingtons on
September 5, 1990 modifies the payment schedule to 36 payments of $444.44.
modification of the original mortgage contract constitutes a vi olation of 11 U.S.C. § 1322(b)(2).3

The bankruptcy court found that the insurance the Washingtons elected to take out through Oak Tree

constitutes additional security for section 1322(b)(2) purposes and held that the proposed

modification should be allowed. The district court affirmed. Finding that section 1322(b)(2) bars

modification of the Washingtons' mortgage contract, we reverse.



                                                      I

          This case involves a single issue: whether credit life and disability insurance is security within

the meaning of 11 U.S.C. § 1322(b)(2), thus allowing the modification of a secured creditor's claim.4

Although other courts have considered this very issue, they are divided, and our analysis moves along

the jagged fault line running between their decisions.5

   3
       Section 1322(b)(2) provides that:

                          (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.A. § 1322(b)(2) (emphasis added).
   4
     Stressing that their proposed plan would satisfy their debt obligation to Oak Tree, the
Washingtons assert that there is a threshold issue we must decide before reaching this primary
issue—whether a claim is modified when all defaults are cured and the creditor is paid the full
value of its claim. The Washingtons did not properly raise this issue below and, therefore, we will
not address it now. See Fransaw v. Lynaugh, 810 F.2d 518, 523 (5th Cir.) ("[W]e will not
consider [this issue] because of our well-established practice of refusing to address issues raised
for the first time on appeal."), cert. denied, 483 U.S. 1008, 107 S.Ct. 3237, 97 L.Ed.2d 742
(1987).
   5
    See, e.g., In re Ireland, 137 B.R. 65, 70–71 (Bankr.M.D.Fla.1992) (credit life and disability
policies do not constitute "additional security" for section 1322(b)(2) purposes); In re Jackson,
136 B.R. 797, 800–801 (Bankr.N.D.Ill.1992) (boilerplate language securing mortgage by
insurance proceeds and fixtures in addition to residence does not constitute additional security);
In re Wright, 128 B.R. 838, 844 (Bankr.N.D.Ga.1991) (creditor's rights under security deed to
returned, unearned, and payable insurance premiums upon foreclosure do not constitute additional
security to modify debt); In re Selman, 120 B.R. 576, 579 (Bankr.D.N.M.1990) (credit life and
hazard insurance policies constitute additional security); In re Braylock, 120 B.R. 61, 64
(Bankr.N.D.Miss.1990) (where policy was obtained optionally, unearned premium is refundable
to debtor, and proceeds become available only upon debtor's death, policy is not additional
security interest permitting modification of secured claim); In re Diquinzio, 110 B.R. 628, 629
       Our review of these decisions indicates that courts have begun to step over this fissure and

toward a consensus that credit life and disability insurance does not constitute additional security.

See Ireland, 137 B.R. at 70–71; Jackson, 136 B.R. at 800–801; Wright, 128 B.R. at 844; Braylock,

120 B.R. at 64; Diquinzio, 110 B.R. at 629. Strictly interpreting section 1322(b)(2)'s statutory

language,6 these courts have reasoned that credit life and disability insurance policies are merely

contingent interests—interests that are illusory until the occurrence of some triggering event and not

security interests for section 1322(b)(2) purposes. See Jackson, 136 B.R. at 802 ("[T]he boilerplate

language granting the mortgagee the right to receive and use property insurance proceeds in the event

of some destruction of the property does not create an additional type of collateral securing the

mortgage obligation."); Braylock, 120 B.R. at 63 ("Credit life insurance only becomes available when

an unfortunate event occurs, i.e., the death of the debtor.").7


(Bankr.D.R.I.1990) ("[W]e reject (this time without difficulty) the debtors' contention that ITT's
contingent interest in a credit life insurance policy represents additional security which would
entitle the debtor to modify ITT's mortgage payments in its Chapter 13 plan. This argument is
totally without merit."); In re Ross, 107 B.R. 759, 762 (Bankr.W.D.Okla.1989) ("the common,
"boilerplate' language in mortgage instruments, referring to insurance, rents and profits, buildings,
improvements, machinery, equipment and the like, did not constitute additional security")
(emphasis added); Transouth Fin. Corp. v. Hill, 106 B.R. 145, 146–47 (W.D.Tenn., E.D.1989)
(optional credit life and disability insurance written in connection with loan constitutes additional
security for modification); In re Wilson, 91 B.R. 74, 76 (Bankr.W.D.Mo.1988) (where creditor
took security interest in three insurance policies, not only in proceeds but in the return premiums,
insurance constitutes additional security); In re Stiles, 74 B.R. 708, 710 (N.D.Ala.1987) (interest
in policy of insurance on lives of debtors constitutes additional security).
   6
    Courts must rely upon the plain meaning of the statutory language, especially since the
legislative history of the Bankruptcy Code does not offer explicit guidance as to what constitutes
"other security" under 11 U.S.C. § 1322(b)(2). See In re Harris, 94 B.R. 832, 835 (D.N.J.1989)
("The "plain meaning' of the language is the "primary and ordinarily the most reliable, source of
interpreting the meaning of a statute.' ") (citation omitted); see also Ireland, 137 B.R. at 70,
quoting Diquinzio, 110 B.R. at 629.
   7
    Looking to other sections of the Bankruptcy Code for guidance, the Wright court found
"other security" to be an item of collateral upon which a lien or security interest has been
perfected within the purview of applicable state law. Wright, 128 B.R. at 843 (stating that, to
secure a debt, a security interest must arise under the security deed and "only properly perfected
secured claims will be considered relevant in determining whether the § 1322(b)(2) exception
applies"). Accordingly, the court concluded that, in the absence of foreclosure where the creditor
held rights to insurance premiums upon foreclosure, "the rights ... to returned, unearned and
payable insurance premiums do not constitute additional security for debt in the common sense
usage of the term in § 1322(b)(2)." Id. at 844.

               Refusing to even discuss the point, the Diquinzio court held: "[W]e reject (this
          The plain meaning of section 1322(b)(2)'s language establishes that its purpose is to protect

creditors.8 As recognized by the Braylock court, interpreting "additional security" to include optional

credit life and disability insurance would defeat this purpose for such insurance has become a standard

accompaniment for mortgage loans.9 Oak Tree, like thousands of other lenders, routinely offers

optional credit life and disability policies to its borrowers.10 Beyond being wholly optional, the


          time without difficulty) the debtors' contention that ITT's contingent interest in a credit life
          insurance policy represents additional security which would entitle the debtor to modify
          ITT's mortgage payments in its Chapter 13 plan. This argument is totally without merit."
          Diquinzio, 110 B.R. at 629. Relying upon Diquinzio, the Ireland court also summarily
          dismissed this point. See Ireland, 137 B.R. at 70–71.
   8
    See supra note 6 (establishing that we must rely upon the plain meaning of the statutory
language); see also supra note 3 (quoting section 1322(b)(2)). Specifically, the primary purpose
of section 1322(b)(2) is to provide stability in the residential home financing industry and markets,
as was recognized in In re Hall, 117 B.R. 425, 428 (Bankr.S.D.Ind.1990):

                  [S]ection 1322(b)(2) protects the rights of home mortgage lenders from such
                  contract modifications as lowering the amount of monthly payments or the
                  contractual interest rate, which would otherwise be permissible, see In re Ramirez,
                  62 B.R. 668 (Bankr.S.D.Cal.1986). Interpreting this section to deprive home
                  mortgage lenders of present value interest to which they would otherwise be
                  entitled under section 1325(a)(5) would harm rather than protect these lenders,
                  and thus [would] be contrary to the purpose of section 1322(b)(2). The Court will
                  not interpret a code provision in a way that is contrary to its purpose when there is
                  an equally, indeed more, supportable interpretation that furthers its purpose.
   9
       Braylock, 120 B.R. at 63–4:

                  Practically every deed of trust which encumbers improved real property contains a
                  provision requiring the borrower to acquire and maintain insurance coverage to
                  protect against fire and other casualty losses. To hold that this type [of] insurance
                  coverage constitutes an additional security interest would completely eviscerate
                  the protective exception for residential lenders found in Section 1322(b)(2).
                  Congress would not have enacted a meaningless statute.... [Similarly, c]redit life
                  insurance only becomes available when an unfortunate event occurs, i.e., the death
                  of the debtor.

                  Because this Court is of the opinion that the drafters of § 1322(b)(2) did not
                  contemplate that a credit life insurance policy, naming the creditor as the
                  beneficiary, would be considered an additional security interest, this Court ... is not
                  persuaded that one optional credit life insurance policy, where the unearned
                  premium is refundable to the debtor and where the proceeds of which would only
                  become available on the debtor's death, is an additional security interest which
                  negated the protective exception found in § 1322(b)(2).
   10
     The Stiles court implicitly rejected the assertion that such insurance is essentially
"boilerplate" in nature and incidental to the underlying obligation by holding that a lender's
assertion that such life insurance is merely a contingent interest was "defeated by its own conduct
decision to obtain this coverage is revocable: The Washingtons can terminate their policy at any time

during the term of their mortgage without seeking Oak Tree's permission.



        Although it is conceivable that a credit life and disability insurance policy that (1) is a

prerequisite for obtaining a loan,11 (2) was separately pledged as additional security,12 and (3) contains




in accepting it as collateral." Stiles, 74 B.R. at 710. Similarly, relying upon Stiles, the Selman
court questioned "Why would [the creditor] be named as payee/beneficiary of the two policies if
not to further secure its position?" In re Selman, 120 B.R. 576, 578 (Bankr.D.N.M.1990).

                We disagree. Although it may be in the creditor's interest for its borrower to
        purchase such insurance to assure that the borrower's obligation will be satisfied in the
        event of misfortune (creditors, therefore, often go so far as to arrange and encourage such
        insurance), we do not find that this constitutes "accepting it as collateral." Even when
        their creditors are the beneficiaries, such insurance policies assure borrowers that—as is
        generally true with life insurance—should misfortune occur, their estates will be free from
        the burden of their debt obligation.
   11
     The significance of this variable was recognized in Braylock, 120 B.R. at 63. Noting that
"[t]he promissory note clearly indicates that credit life insurance was not required to obtain the
loan", the Braylock court held "[this court] seriously doubts that the voluntary election by a
debtor to obtain a credit life insurance policy, even though the lender is designated the policy
beneficiary, creates a "security interest.' " Id.
   12
     The Ireland court, in reviewing the relevant case law on this point, acknowledged the
significance of this variable:

                As stated by the district court in In re Diquinzio, 110 B.R. 628
                (Bankr.D.R.I.1990), a credit life policy was not additional security, and its
                existence did not permit modification of the debtors' mortgage. Id. at 629.
                Additionally, the Diquinzio court distinguished cases such as United Companies
                Fin. Corp. v. Brantley, 6 B.R. 178 (Bankr.N.D.Fla.1980), where a life insurance
                policy was separately pledged as additional security. In United Companies Fin.
                Corp., the court noted the rationale behind its ruling was specific to the
                circumstances of that case. The court noted that the life insurance policy pledge
                document was entitled "Assignment of Life Insurance Policy as Collateral."

        Ireland, 137 B.R. at 70–71.
an assignment of interest13 or (4) contains other language perfecting a security interest in the policy14

might serve as "additional security" for section 1322(b)(2) purposes, this is not the case before us.

The Washingtons' credit life and disability policy satisfies none of these conditions. Therefore, we

find that, in the absence of misfortune, the Washingtons' insurance policy is at best illusory

security—security contingent upon events that may never occur, and we conclude that such illusory

security is simply not enough to divest Oak Tree of its section 1322(b)(2) protection.



                                                   II

        For the foregoing reasons, we REVERSE.



                                               ******




   13
     The significance of this variable is acknowledged in the cases the Washingtons rely upon for
the proposition that a creditor's interest in an insurance policy constitutes additional security. See
In re Transouth Fin. Corp. v. Hill, 106 B.R. 145, 146 (W.D.Tenn.1989); In re Wilson, 91 B.R.
74, 76 (Bankr.W.D.Mo.1988); In re Stiles, 74 B.R. 708, 710 (Bankr.N.D.Ala.1987). These
courts acknowledged that the underlying mortgage documents contained an express written
clause specifically assigning creditors any proceeds—including unearned, returned, or premium
refunds—which might become payable. See Transouth, 106 B.R. at 146; Wilson, 91 B.R. at 76;
Stiles, 74 B.R. at 710.
   14
     The Braylock court acknowledged the significance of such language when, in distinguishing
the case before it from Wilson, 91 B.R. at 74, the court noted that the loan documentation in
Wilson contained specific language perfecting a security interest in the policies at issue. See
Braylock, 120 B.R. at 63–64; see also Wilson, 91 B.R. at 76.
