In re: Michael Bowers v. ( 2013 )

ELECTRONIC CITATION: 2013 FED App.0007P (6th Cir.)
File Name: 13b0007p.06
BANKRUPTCY APPELLATE PANEL OF THE SIXTH CIRCUIT
In re: MICHAEL ALLEN BOWERS and )
MARGARITA VILLE BOWERS, )
) No. 13-8014
Debtors. )
______________________________________
Appeal from the United States Bankruptcy Court
for the Northern District of Ohio
Case No. 12-51549
Argued: August 20, 2013
Decided and Filed: November 22, 2013
Before: EMERSON, LLOYD, and PRESTON, Bankruptcy Appellate Panel Judges.
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COUNSEL
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ARGUED: Scott W. Paris, KEITH D. WEINER & ASSOCIATES CO., LPA, Cleveland, Ohio, for
Appellant. Robert M. Whittington, Jr., Akron, Ohio, for Appellees. ON BRIEF: Scott W. Paris,
KEITH D. WEINER & ASSOCIATES CO., LPA, Cleveland, Ohio, for Appellant. Robert M.
Whittington, Jr., Akron, Ohio, for Appellees.
1
___________________
OPINION
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JOAN A. LLOYD, Bankruptcy Appellate Panel Judge. Plymouth Park Tax Services, LLC
(“Plymouth Park”) appeals the order of the United States Bankruptcy Court for the Northern District
of Ohio (the “Bankruptcy Court”) sustaining in part debtors Michael Allen Bowers and Margarita
Ville Bowers’s (the “Debtors”) objection to Plymouth Park’s claim and overruling in part Plymouth
Park’s objection to confirmation of the Debtors’ chapter 13 plan. The Bankruptcy Court’s order held
that under Ohio law the appropriate interest rate for Plymouth Park’s tax claim against the Debtors
was 0.25%. Plymouth Park argues that Ohio’s tax lien statutes mandate a higher interest rate of
18%. For the reasons set forth below, the Panel affirms the Bankruptcy Court’s decision.
STATEMENT OF ISSUES
The issue presented in this appeal is as follows: whether the Bankruptcy Court erred in
determining that Ohio law set the Debtors’ chapter 13 plan interest rate on Plymouth Park’s tax lien
certificate at 0.25%.
JURISDICTION AND STANDARD OF REVIEW
The Bankruptcy Appellate Panel of the Sixth Circuit (“BAP”) has jurisdiction to decide
Plymouth Park’s appeal of the Bankruptcy Court’s order sustaining the Debtors’ objection to
Plymouth Park’s claim. The United States District Court for the Northern District of Ohio has
authorized appeals to the BAP, and no party has timely elected to have this appeal heard by the
district court. 28 U.S.C. § 158(b)(6), (c)(1). A “final” order of a bankruptcy court may be appealed
by right under 28 U.S.C. § 158(a)(1). For purposes of appeal, an order is final if it “ends the
litigation on the merits and leaves nothing for the court to do but execute the judgment.” Midland
2
Asphalt Corp. v. United States, 489 U.S. 794, 797, 109 S. Ct. 1494, 1497 (1989) (internal quotations
and citations omitted). An order sustaining an objection to a creditor’s claim is a final order.
Maldeni Mills Industries, Inc. v. Maroun (In re Malden Mills, Inc.), 303 B.R. 688, 696 (B.A.P. 1st
Cir. 2004). On the other hand, an order overruling an objection to confirmation without confirming
a plan is not a final order. State Bank of Florence v. Miller (In re Miller), 459 B.R. 657, 662 (B.A.P.
6th Cir. 2011). Consequently, this opinion will only review the Bankruptcy Court’s order insofar
as it sustained the Debtors’ objection to Plymouth Park’s claim.
The Panel reviews conclusions of law, such as a bankruptcy court’s interpretation of state
law, de novo. Dickson v. Countrywide Home Loans (In re Dickson), 655 F.3d 585, 590 (6th Cir.
2011). Under a de novo standard of review, the appellate court determines the law at issue
“independently of, and without deference to, the trial court’s determination.” Palmer v. Washington
Mut. Bank (In re Ritchie), 416 B.R. 638, 641 (B.A.P. 6th Cir. 2009) (citing Gen. Elec. Credit
Equities, Inc. v. Brice Rd. Devs., LLC (In re Brice Rd. Devs., LLC), 392 B.R. 274, 278 (B.A.P. 6th
Cir. 2008).
FACTS
The Debtors owed delinquent real estate taxes to Summit County, Ohio. Summit County and
several other Ohio counties sell outstanding tax obligations to investors in the form of tax lien
certificates. By selling these tax lien certificates, Summit County obtains much-needed revenue.
The investor purchasing a tax lien certificate obtains a lien against the taxpayer’s property and the
right to pursue the taxpayer for the unpaid taxes. See Ohio Rev. Code Ann. (“O.R.C.”) §§ 5721.30-
43.
On November 5, 2010, Plymouth Park filed a tax lien certificate with the Summit County,
Ohio, Fiscal Officer showing its purchase of the Debtors’ tax obligation for the price of $4,083.73
with a negotiated interest rate of 0.25%. This certificate states that it was offered, sold, and delivered
on November 3, 2010. On October 3, 2011, Plymouth Park filed a second tax lien certificate with
3
the Fiscal Officer showing its purchase of a second certificate for the price of $2,045.44 with a
negotiated interest rate of 18.00%. Both of these certificates are titled “Tax Certificate (Negotiated
Sale).” (Stipulation as to Undisputed Facts (“Stipulation”) Exs. B and C, Bankr. Case No. 12-51549,
ECF No. 32). The certificates are signed by the “Treasurer/Fiscal Officer or Designee,” Shelly
Davis, who states in the first paragraph: “I do hereby certify that at a negotiated sale pursuant to
O.R.C. § 5721.33 this tax certificate for the parcel listed below was offered and sold . . . .” (Id.).
Both certificates also state that “[t]his certificate will be canceled six years after the date of
delivery pursuant to Ohio Revised Code 5721.27, unless the date is extended because of bankruptcy
pursuant to O.R.C. 5721.37(A)(3)(b),” and that “[t]he purchaser of this Tax Certificate or any
transferee is entitled to file a notice of intent to foreclose on this parcel within six years after the
purchase of the Tax Certificate, or by the date negotiated with the county treasurer.” (Id.).
On April 17, 2012, the Summit County Fiscal Officer filed a tax lien foreclosure complaint
against the Debtors. The Summit County Fiscal Officer filed this complaint “pursuant to a request
for foreclosure form sent to the Fiscal Officer by Plymouth [Park].” (Stipulation, at ¶6). The
foreclosure complaint stated that “as provided by Section 5721.38 (B) of the Ohio Revised Code”
the “redemption price” calculated by the Fiscal Officer was $10,585.82. (Stipulation Ex. D, at ¶6).
On May 10, 2012, the Debtors filed their chapter 13 plan and petition. The Debtors’ chapter
13 plan proposed to pay interest on Plymouth Park’s tax certificates at the interest rates listed on
those certificates: 0.25% on the first tax certificate and 18% on the second. On May 23, 2012,
Plymouth Park filed a proof of claim based on both certificates in the amount of $10,521.46, an
amount that included $2,120.00 in fees and the principal balance of $7,781.19 plus 18% interest
from June 1, 2012. The Debtors’ plan and Plymouth Park’s claim thus put the parties at odds: While
the Debtors sought an interest rate of 0.25% on the first tax certificate and 18% on the second,
Plymouth Park demanded that the Debtors pay 18% on both.
4
On May 23, 2012, Plymouth Park filed an objection to confirmation of the Debtors’ plan.
Plymouth Park claimed that O.R.C. § 5721.38(B) entitled it to an 18% interest rate on its claim for
the first tax certificate (the “Tax Certificate”). That same day, the Debtors filed an objection to
Plymouth Park’s claim, demanding the 0.25% interest rate listed on the Tax Certificate and disputing
the propriety of Plymouth Park’s $2,120 fee charge.1 On August 18, 2012, the Bankruptcy Court
held an evidentiary hearing at which testimony was taken regarding the procedures and fees involved
in Summit County’s tax lien foreclosure process. On December 5, 2012, the Bankruptcy Court
entered an order directing the parties to file additional briefs “regarding the applicability and/or
inapplicability of Ohio Revised Code § 5721.38 to the issues before the Court, specifically to what
extent, if any, a debtor’s chapter 13 plan treatment of the tax certificate holder’s claim should be
equated with the process of redemption contemplated in § 5721.38.” (Order Directing Parties to File
Briefs, at 1, Bankr. Case No. 12-51549, ECF No. 44).
In its brief on O.R.C. § 5721.38, Plymouth Park argued that Ohio law controlled the
appropriate interest rate payable on its claim because the claim constituted a “tax claim” under
11 U.S.C. § 511. Plymouth Park then turned to O.R.C. § 5721.38(B), a statute that allows taxpayers
to redeem their property by paying a lump sum with an 18% interest rate applicable from the date
that foreclosure proceedings commence. Ohio Rev. Code Ann.§ 5721.38(B). According to
Plymouth Park, O.R.C. § 5721.38(B) guaranteed it an 18% interest rate on its claim.
The Debtors made two arguments against this high rate. First, they argued that Plymouth
Park’s claim was not a “tax claim” under § 511 of the Bankruptcy Code and that therefore the state
statute did not govern the interest rate payable on Plymouth Park’s claim. According to this
argument, the interest rate had to be determined by using the “prime plus” formula set forth in Till
v. SCS Credit Corp., 541 U.S. 465, 124 S. Ct. 1951 (2004). Second, the Debtors argued that the
lump sum redemption described in O.R.C. § 5721.38(B) could not be equated with a redemption via
1
In its Order and Memorandum Opinion entered on March 22, 2013, the Bankruptcy Court
upheld Plymouth Park’s claim to $2,000 of these fees. (Mem. Op., at 5, Bankr. Case. No. 12-
51549, ECF No. 51). The fees are not an issue in this appeal.
5
chapter 13 plan payments. The Debtors proposed that O.R.C. § 5721.38(C)(2) which provides for
a redemption payment plan, not a lump sum payment should guide the selection of an interest rate
for Plymouth Park’s claim. Subsection (C)(2) makes no reference to the 18% interest rate that is
required in subsection (B) and instead provides for redemption via a payment plan calculated to
include a tax certificate’s “certificate rate of interest.” Ohio Rev. Code Ann. § 5721.38(C)(2).
In an Order and Memorandum Opinion entered on March 22, 2013, the Bankruptcy Court
agreed with Plymouth Park that Plymouth Park’s claim was a tax claim under 11 U.S.C. § 511 and
that state law governed the interest rate issue. But the Bankruptcy Court rejected the proposition that
the 18% rate in O.R.C. § 5721.38(B) should apply to the Debtors’ plan. The Bankruptcy Court
stated as follows:
According to Ohio Revised Code § 5721.38(B)(2), the owner of the property “may
redeem the parcel by paying . . . interest on the certificate purchase price for each tax
certificate sold respecting the parcel at the rate of eighteen per cent per year.” The
debtors allege that Ohio Revised Code § 5721.38(B) is limited to those instances
where “a party redeems real estate from a certificate sale by paying cash to the county
treasurer.” The debtors further allege that this redemption does not contemplate
“redemption by way of periodic payments as in a chapter 13 plan.” The Court agrees.
Creditor has not established, and the Court finds no support for, the contention that
the negotiated interest rate does not apply. Here, the debtors are not redeeming their
property as contemplated by Ohio Revised Code § 5721.38(B); therefore the statute
does not apply.
(Mem. Op., at 4, Case. No. 12-51549, ECF No. 51 (internal citations removed)). The Bankruptcy
Court went on: “Moreover, ‘Ohio law establishes that the Creditor is entitled to the interest rate
established by the tax certificate auction on the Debtor’s delinquent real estate taxes.’ ” (Id. at 4
(quoting In re Cortner, 400 B.R. 608, 612 (Bankr. S.D. Ohio 2009))). The Court thus held the
appropriate interest rate for Plymouth Park’s disputed Tax Certificate to be 0.25%. Though the
Debtors’ brief had pointed the Bankruptcy Court toward the payment plan redemption provided for
in O.R.C. § 5721.38(C)(2), the Bankruptcy Court did not mention O.R.C. § 5721.38(C)(2) in its
opinion.
6
Plymouth Park now appeals. Plymouth Park argues that O.R.C. § 5721.38(B) guarantees it
an 18% interest rate on its claim. The Debtors contend that O.R.C. § 5721.38(B) only applies to
lump sum redemptions, not to payment plan redemptions like those carried out in a chapter 13 plan,
and that they therefore need only pay the 0.25% interest rate stated on the Tax Certificate.
DISCUSSION
Neither party to this appeal disputes the Bankruptcy Court’s conclusion that Plymouth Park’s
claim is a tax claim under 11 U.S.C. § 511(a) and that Ohio law should govern the interest rate
payable to Plymouth Park in the Debtor’s chapter 13 plan. 2
This appeal requires that the Panel analyze the provisions of the Ohio Revised Code
governing tax certificates. See generally Ohio Rev. Code Ann. §§ 5721.30-43. The version of the
O.R.C. applicable to this case is the version effective on November 3, 2010, the date the Tax
Certificate was purchased. See CapitalSource Bank FBO Aeon Fin., L.L.C. v. Donshirs Dev. Corp.,
No. 99032, 2013 WL 1697492, at *5 (Ohio Ct. App. April 18, 2013)(stating, in dicta, that the trial
court “erred” when it applied the version of the O.R.C. effective at the time of foreclosure instead
of the version effective at the time tax certificate was purchased). Cf. Ransier v. Standard Fed. Bank
(In re Collins), 292 B.R. 842, 847 (Bankr. S.D. Ohio 2003) (“The Court concludes that the date of
the signing of the mortgage determines the law of the contract.”); Suhar v. Land (In re Land),
289 B.R. 71, 75 (Bankr. N.D. Ohio 2003) (same); Eastwood Local School Dist. v. Eastwood Educ.
Ass’n, 875 N.E.2d 139, 143 (Ohio Ct. App. 2007) (“Except where a contrary intent is evident, the
parties to a contract are deemed to have contracted with reference to existing law.”).
2
11 U.S.C. § 511(a) reads as follows: “If any provision of this title requires the payment of interest
on a tax claim or on an administrative expense tax, or the payment of interest to enable a creditor to
receive the present value of the allowed amount of a tax claim, the rate of interest shall be the rate
determined under applicable nonbankruptcy law.” 11 U.S.C. § 511(a).
7
The Ohio Revised Code’s tax certificate provisions specifically address situations where
delinquent taxpayers file for bankruptcy protection. O.R.C. § 5721.37(A)(3)(b), effective when the
tax certificate was purchased on November 3, 2010, stated as follows:
If, before six years after the date a tax certificate was sold or before the date
negotiated by the county treasurer, the owner of the property files a petition in
bankruptcy, the county treasurer, upon being notified of the filing of the petition,
shall notify the certificate holder by ordinary first-class or certified mail or by binary
means of the filing of the petition. It is the obligation of the certificate holder to file
a proof of claim with the bankruptcy court to protect the holder's interest in the
certificate parcel. The last day on which the certificate holder may file a notice of
intent to foreclose is the later of six years after the date the tax certificate was sold
or the date negotiated by the county treasurer, or one hundred eighty days after the
certificate parcel is no longer property of the bankruptcy estate; however, the six-year
or negotiated period being measured after the date the certificate was sold is tolled
while the property owner’s bankruptcy case remains open.
Ohio Rev. Code Ann. § 5721.37(A)(3)(b) (current version at Ohio Rev. Code Ann. § 5721.37(A)(2)
(2011)). In sum then, O.R.C. § 5721.37(A)(3)(b) placed a six year limit on a certificate holder’s
ability to file a notice of intent to foreclose. But if a taxpayer filed for bankruptcy at some point
within those six years and the certificate holder filed a claim with the bankruptcy court, then the six
year period would be tolled “while the property owner’s [the taxpayer’s] bankruptcy case remains
open.” Id.3
The very next division of the 2010 version of O.R.C § 5721.37, O.R.C. § 5721.37(A)(3)(c),
addressed the treatment of the certificate holder’s claim during the tolling period. According to
O.R.C. § 5721.37(A)(3)(c), “interest at the certificate rate of interest continues to accrue during any
extension of time required by division (A)(3)(a) or (b) of this section unless otherwise provided
under Title 11 of the United States Code.” Ohio Rev. Code Ann. § 5721.37(A)(3)(c) (current
version at Ohio Rev. Code Ann. § 5721.37(A)(2) (2011)). In other words, O.R.C.
3
The face of the Tax Certificate clearly contemplates the potential application of O.R.C.
§ 5721.37(A)(3)(b)’s tolling period, stating that the certificate “will be canceled six years after
the date of delivery . . . unless the date is extended because of bankruptcy pursuant to O.R.C.
§ 5721(A)(3)(b).” (Stipulation Ex. B, Bankr. Case No. 12-51549, ECF No. 32).
8
§ 5721.37(A)(3)(c) “specifically provides that the tax certificate interest rate continues to accrue
during a bankruptcy unless Title 11 provides otherwise.” In re Cortner, 400 B.R. 608, 614-15
(Bankr. S.D. Ohio 2009).4
Applying 2010 O.R.C. § 5721.37(a)(3)(b) and (c) to this case, the Panel concludes that the
interest rate on Plymouth Park’s Tax Certificate claim should be set at 0.25% while the Debtor’s
bankruptcy case remains open. Here, the Debtor filed for bankruptcy within six years from the sale
of the Tax Certificate to Plymouth Park.5 Tolling of that six year period began with the filing of the
bankruptcy and will continue “while the [Debtors’] bankruptcy case remains open.” Ohio Rev. Code
Ann. § 5721.37(A)(3)(b). The 0.25% interest rate on the face of the tax certificate is the “certificate
rate of interest”6 and continues to accrue during this extension of time. Ohio Rev. Code Ann.
§ 5721.37(A)(3)(c). Title 11 does not provide otherwise: Section 511 of the Bankruptcy Code
4
The term “certificate rate of interest” is defined by the O.R.C. as “the rate of simple interest per
year not to exceed eighteen per cent per year fixed . . . by the county treasurer with respect to any
tax certificate sold or transferred pursuant to a negotiated sale.” Ohio Rev. Code Ann.
§ 5721.30(G).
5
The Panel notes that the 2010 O.R.C. contains no indication that the six year period for
certificate holders to initiate the foreclosure process against taxpayers somehow expires early
when a notice of intent to foreclose is filed. In fact, it appears that the six year period survives
the filing of a notice of intent to foreclose and the initiation of foreclosure proceedings and
continues to provide important limitations on the rights of both tax certificate holders and
taxpayers. For example, if a tax certificate holder files a notice of intent to foreclose but has its
foreclosure action dismissed without prejudice, it can file another notice of intent to foreclose,
but must do so before the six year period ends. See Lakeview Holding, L.L.C. v. DeBerry, No.
99033, 2013 WL 1501640, at *1 (Ohio Ct. App. April 11, 2013) (“[T]he certificate has not
expired and the six year statute of limitations has not yet expired . . . [the tax certificate holder]
may therefore simply refile its notice of intent . . . .”). In an important limitation on taxpayers,
the six year period also provides the amount of time in which a taxpayer must complete payments
in order to redeem his or her property under the “redemption payment plan” provided for in the
2010 version of O.R.C. § 5721.38(C)(2). Ohio Rev. Code Ann.§ 5721.38(C)(2) (amended 2011)
(“The plan shall require the owner or other person to pay the certificate redemption price for the
tax certificate, an administrative fee . . . and the actual fees and costs incurred, in installments,
with the final installment due no later than six years after the date the tax certificate is sold.”).
6
Ohio Rev. Code § 5721.30(G).
9
provides that the rate of interest on Plymouth Park’s claim “shall be determined under applicable
non-bankruptcy law” here, the Ohio Revised Code. 11 U.S.C. § 511(a). Applicable Ohio law thus
imposes an interest rate of 0.25% on Plymouth Park’s claim while the Debtors’ bankruptcy case
remains open.7
Plymouth Park argues here, just as it did before the Bankruptcy Court, that O.R.C.
§ 5721.38(B) guarantees it an 18% interest rate on its claim. O.R.C. § 5721.38(B)(2) allows a
taxpayer to redeem a parcel after the filing of a notice of intent to foreclose by paying the county
treasurer an amount equal to the total of the “certificate redemption prices”8 of all tax certificates
7
The result would be no different under current law. The Ohio Legislature’s 2011 amendments
to O.R.C. § 5721.37 replaced O.R.C. § 5721.37(A)(3)(b) and O.R.C. § 5721.37(A)(3)(c) with
current O.R.C. § 5721.37(A)(2), a division identical to the divisions it replaced except that the
six year period in the 2010 O.R.C. has been replaced by the term “certificate period.” Ohio Rev.
Code Ann. § 5721.37(A)(2). That term is defined in current O.R.C. § 5721.30(Q) as “the period
of time after the sale or delivery of tax certificate within which a certificate holder must initiate
an action to foreclose the tax lien represented by the certificate . . . .” Ohio Rev. Code Ann.
§ 5721.30(Q). Under both the 2010 and current statute a certificate holder has a certain period of
time in which to foreclose, that period of time is tolled during a taxpayer’s bankruptcy case, and
interest accrues during the tolling period at the certificate rate of interest. Were the current
version of O.R.C. § 5721.37 to apply to this case, the “certificate period” would be the six year
limit provided for on the face of the Tax Certificate. That “certificate period” would be tolled
while the Debtors’ bankruptcy case remains open, and during that time interest would accrue at
the “certificate rate of interest,” or 0.25%.
8
O.R.C. § 5721.30(F) defines the “certificate redemption price” “with respect to a sale of tax
certificates under section 5721.33” as follows:
[C]ertificate redemption price means the amount equal to the sum of the following:
(1) The certificate purchase price;
(2) Interest accrued on the certificate purchase price at the certificate rate of interest from the
date on which a tax certificate is delivered through and including the day immediately
preceding the day on which the certificate redemption price is paid;
(3) The fee, if any, charged by the county treasurer to the purchaser of the certificate under
division (J) of section 5721.33 of the Revised Code;
(4) Any other fees charged by any county office in connection with the recording of tax
certificates
O.R.C. § 5721.30(F)
10
respecting the parcel, certain fees and costs, and “interest on the certificates at the rate of eighteen
per cent per year for the period beginning on the date on which the payment was submitted by the
certificate holder [to initiate foreclosure proceedings] and ending on the day the parcel is redeemed
under this division.” Ohio Rev. Code Ann. § 5721.38(B)(2). According to Plymouth Park, because
the Debtors seek to redeem their property via their proposed chapter 13 plan, they must pay the 18%
interest rate required under O.R.C. § 5721.38(B)(2).
Plymouth Park’s reliance on O.R.C. § 5721.38(B) might make sense outside of the
bankruptcy context. Unfortunately for Plymouth Park, the 2010 O.R.C. provisions discussed above
specifically require that the interest rate on the Tax Certificate accrue at 0.25% while the Debtors’
bankruptcy case remains open. A well established tenet of statutory construction mandates that
specific statutory provisions prevail over more general provisions. See RadLAX Gateway Hotel, LLC
v. Amalgamated Bank, 132 S. Ct. 2065, 2070 (2012) (citations omitted); Hartman v. Duffey, 95 Ohio
St. 3d 456, 461 (Ohio 2002). Moreover, adoption of Plymouth Park’s theory would render O.R.C.
§ 5721.37(A)(3)(c) mere surplusage, in violation of another basic tenet of statutory construction that
statutes are to be interpreted in a manner that gives effect to each. See Morton v. Mancari, 417 U.S.
535, 551 (1974) (“The courts are not at liberty to pick and choose among congressional enactments,
and when two statutes are capable of co-existence, it is the duty of the courts . . . to regard each as
effective. When there are two acts upon the same subject, the rule is to give effect to both if possible
. . . .” (Citations and internal quotation marks omitted.)); Perrysburg Twp. v. Rossford, 103 Ohio
St. 3d 79, 81, 814 N.E.2d 44 (Ohio 2004) (“In interpreting statutes, it is the duty of this court to give
effect to the words used, not to delete words used or to insert words not used.” (Citations and
internal quotation marks omitted.)). Therefore, the Panel concludes that O.R.C. § 5721.38(B) does
not provide the interest rate applicable to this case.
CONCLUSION
For the foregoing reasons, the Panel AFFIRMS the Bankruptcy Court’s order sustaining
the Debtors’ objection to Plymouth Park’s claim.
11