Bank of America v. Alexis Lopez, No. 14-10518 (11th Cir. 2014)
Annotate this Case
Download PDF
Case: 14-10518 Date Filed: 09/03/2014 Page: 1 of 4 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 14-10518 Non-Argument Calendar ________________________ D.C. Docket No. 6:13-cv-01933-JA, Bkcy No. 6:13-bk-07503-KSJ In re ALEXIS LOPEZ Debtor. ________________________________________________ BANK OF AMERICA, Plaintiff-Appellant, versus ALEXIS LOPEZ, Defendant-Appellee. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (September 3, 2014) Case: 14-10518 Date Filed: 09/03/2014 Page: 2 of 4 Before WILSON, ROSENBAUM, and FAY, Circuit Judges. PER CURIAM: Bank of America appeals the bankruptcy judge s order in a Chapter 7 bankruptcy proceeding that allowed Alexis Lopez to strip off Bank of America s second-priority lien. We affirm. Lopez has two mortgage liens on his house. The first has an outstanding balance that exceeds the current value of the house. The second mortgage lien at issue in this case is held by Bank of America and is junior to the first lien. Bank of America s lien is considered to be wholly underwater, because the debt secured by the first lien exceeds the current value of the house. ROA at 67. Lopez moved to have Bank of America s junior lien extinguished under § 506(d) of the Bankruptcy Code. See 11 U.S.C. § 506(d).1 The bankruptcy judge granted Lopez s motion and concluded binding circuit precedent holds § 506(d) authorizes a Chapter 7 debtor to strip off (remove in its entirety) a junior lien, where the amount of debt securing the senior lien exceeds the value of the house. McNeal v. GMAC Mortgage, LLC (In re McNeal), 735 F.3d 1263, 1264-66 (11th 1 Section 506(d) provides: To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void, unless (1) such claim was disallowed only under section 502(b)(5) or 502(e) of this title; or (2) such claim is not an allowed secured claim due only to the failure of any entity to file a proof of such claim under section 501 of this title. 11 U.S.C. § 506(d). 2 Case: 14-10518 Date Filed: 09/03/2014 Page: 3 of 4 Cir. 2012) (per curiam) (holding a wholly unsecured junior lien may be stripped off or voided under 11 U.S.C. § 502(d)); Folendore v. SBA (In re Folendore), 862 F.2d 1537, 1539 (11th Cir. 1989) (interpreting 11 U.S.C. § 506(a) and (d) and concluding that an allowed claim that was wholly unsecured was voidable under the plain language of 11 U.S.C. § 506(d)). Bank of America appealed to the district court. It subsequently moved for summary affirmance in view of our binding precedent and noted a challenge to McNeal s reasoning would more appropriately be heard by this court or the Supreme Court. The district judge granted the motion. Bank of America now seeks the appellate review that its motion for summary affirmance was intended to expedite. Bank of America argues the decision of the Supreme Court in Dewsnup v. Timm, 502 U.S. 410, 112 S. Ct. 773 (1992), abrogated our construction of § 506(d) in Folendore. As Bank of America acknowledges, however, we rejected that argument in McNeal and concluded Dewsnup was not clearly on point, because it disallowed only a strip down of a partially unsecured mortgage lien, rather than a strip off of a wholly unsecured mortgage lien.2 McNeal, 735 F.3d at 1265-66. 2 A strip down of an unsecured lien reduces the lien to the value of the collateral to which it attaches, while a strip off removes a wholly unsecured lien in its entirety. McNeal, 735 F.3d at 1264 n.1. 3 Case: 14-10518 Date Filed: 09/03/2014 Page: 4 of 4 Because we are bound to follow our prior published decisions in Folendore and McNeal, we affirm the bankruptcy judge s decision voiding Bank of America s lien on Lopez s house. See World Holdings, LLC v. Fed. Republic of Germany, 701 F.3d 641, 650 (11th Cir. 2012) ( [T]he holding of the first panel to address an issue is the law of this Circuit, thereby binding all subsequent panels unless and until the first panel s holding is overruled by the Court sitting en banc or by the Supreme Court. ) (citation and internal quotation marks omitted)). AFFIRMED. 4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
