Bank of New York Mellon v. Phally Lang, No. 14-11373 (11th Cir. 2015)
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Case: 14-11373 Date Filed: 10/15/2015 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 14-11373 Non-Argument Calendar ________________________ D.C. Docket Nos. 3:14-cv-00200-BJD; 3:13-bkc-00346-PMG In re: PHALLY LANG, Debtor. ___________________________________________________ BANK OF NEW YORK MELLON, f.k.a. Bank of New York, Plaintiff - Appellant, versus PHALLY LANG, Defendant - Appellee. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (October 15, 2015) Case: 14-11373 Date Filed: 10/15/2015 Page: 2 of 3 Before TJOFLAT, JORDAN, and EDMONDSON, Circuit Judges. PER CURIAM: ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES In Bank of N.Y. Mellon v. Lang (In re Lang), 580 F. App’x 890 (11th Cir. 2014), this Court affirmed the district court’s affirmance of the bankruptcy court’s order voiding a wholly unsecured second priority lien on residential property owned by a Chapter 7 debtor. In doing so, the panel relied on existing precedent in McNeal v. GMAC Morg., LLC (In re McNeal), 735 F.3d 1263 (11th Cir. 2012), and in Folendore v. United States Small Bus. Admin., 862 F.2d 1537 (11th Cir. 1989), in which this Court concluded that an allowed claim that was wholly unsecured was voidable under section 506(d). The Supreme Court has now granted certiorari, vacated our judgment, and remanded the case to us for further consideration in the light of its decision in Bank of America, N.A. v. Caulkett, 135 S.Ct. 1995 (2015). In Caulkett, the Supreme Court concluded expressly that “a debtor in a Chapter 7 bankruptcy proceeding may not void a junior mortgage lien under § 506(d) when the debt owed on a senior mortgage lien exceeds the current value of 2 Case: 14-11373 Date Filed: 10/15/2015 Page: 3 of 3 the collateral.” Id. (emphasis added). As a result, this Court’s decisions in McNeal and in Folendore are no longer good law. See Waits v. Bank of Am., N.A. (In re Waits), No. 14-11408, 2015 U.S. App. LEXIS 12311, at *3 (11th Cir. July 16, 2015). Accordingly, we deny Appellant’s motion for summary reversal, vacate the district court’s judgment, and remand the case for further proceedings consistent with Caulkett and with this opinion. VACATED AND REMANDED. 3
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