Antoinette Dumont v. Ford Motor Credit Company , 581 F.3d 1104 ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In the Matter of: ANTOINETTE 
DUMONT,
Debtor,
No. 08-60002
ANTOINETTE DUMONT,  BAP No.
SC-07-1155-BaMoD
Appellant,
OPINION
v.
FORD MOTOR CREDIT COMPANY,
Appellee.

Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Baum, Montali, and Dunn, Bankruptcy Judges
Argued and Submitted
May 5, 2009—Pasadena, California
Filed September 15, 2009
Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain, and
Susan P. Graber, Circuit Judges.
Opinion by Judge O’Scannlain;
Dissent by Judge Graber
13405
13408 DUMONT v. FORD MOTOR CREDIT
COUNSEL
Michael G. Doan, Doan Law Firm, Carlsbad, California,
argued the cause for appellant-debtor and filed briefs.
DUMONT v. FORD MOTOR CREDIT 13409
Randall P. Mrocynski, Cooksey Toolen Gage Duffy & Woog,
Costa Mesa, California, argued the cause for the appellee and
submitted a brief.
Tara Twomey, National Association of Consumer Bankruptcy
Attorneys, San Jose, California, submitted a brief on behalf of
amicus curiae National Association of Consumer Bankruptcy
Attorneys. With her on the brief was Cynthia Feathers.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether the Bankruptcy Abuse Prevention
and Consumer Protection Act of 2005 allows a consumer in
bankruptcy to retain personal property subject to a security
interest by continuing to make payments under his contract.
I
Antoinette Dumont purchased a car in 2003 from Ford
Motor Credit Company (“Ford”). The loan agreement con-
tained a clause stating that Dumont would be in default if she
was involved in a bankruptcy proceeding, also known as an
“ipso facto” clause.1 Dumont filed for Chapter 7 bankruptcy
protection in 2006, subsequent to the effective date of the
Bankruptcy Abuse Prevention and Consumer Protection Act
of 2005 (“BAPCPA”), Pub. L. No. 109-8, 119 Stat. 23. The
vehicle was listed on the bankruptcy petition as having a
value of $5,800. At the time, she owed $8,288 on it and was
making payments of $335.78 per month. In her Bankruptcy
1
The contract read: “Default means . . . [y]ou start a proceeding in bank-
ruptcy or one is started against you or your property.” It further states that
“[i]f you default, we may take (repossess) the vehicle from you if we do
so peacefully.”
13410 DUMONT v. FORD MOTOR CREDIT
Statement of Intentions, Dumont stated that she would retain
the car and continue to make monthly payments.
Ford’s attorney e-mailed Dumont’s attorney, asking that
Dumont reaffirm the debt. Her attorney declined the offer. It
is not clear from the record what the terms of the proposed
reaffirmation were.
Ford filed a proof of claim, to which there was no objec-
tion; thus Ford’s claim was allowed. See 11 U.S.C. § 502(a).
Dumont received a discharge on August 15, 2006. After the
discharge, she continued making payments on the car loan.
Without advance notice, Ford repossessed her car on Novem-
ber 14, 2006.
Dumont successfully moved to reopen her bankruptcy case
and claimed that Ford had violated the discharge injunction
by repossessing her car. The bankruptcy court denied the
motion to find Ford in violation of the discharge injunction,
and the Bankruptcy Appellate Panel (BAP) unanimously
affirmed.
II
A
[1] When a debtor files for Chapter 7 bankruptcy, she is
required to state her intentions with regard to any property2
2
In this case, the property was owned by an individual debtor and was
used for personal rather than business purposes. The bankruptcy laws
often treat individuals differently from other entities which may file for
bankruptcy. See, e.g., 11 U.S.C. § 521(a)(2) (applying only to “individual
debtor[s]”). We also note that the property in dispute here was personal
property, not real property. We accordingly have no need to determine
whether debtors may retain their real property via ride-through. See id.
§ 362(h)(1) (referring to “personal property of the estate”); In re Cara-
ballo, 386 B.R. 398, 402 (Bankr. D. Conn. 2008) (“Code § § 521(a)(6) and
362(h) abrogated the ride through option as it pertains to personal prop-
erty. However, courts have concluded that the ability of a debtor to choose
the ride though option as it relates to real property was not abrogated by
BAPCPA.”). Our analysis may not necessarily hold where the debtor is
not an individual or where real property is involved.
DUMONT v. FORD MOTOR CREDIT 13411
which is subject to a security interest. 11 U.S.C. § 521(a)(2).
Prior to BAPCPA, our circuit law allowed the debtor to
choose among four options. First, she could merely surrender
the collateral. Second, she could redeem such collateral—that
is, pay the creditor its present fair market value. See id. § 722.
The debtor could also reaffirm the debt on terms she and the
creditor agreed on. Reaffirmation allowed the debtor to keep
her collateral, but re-exposed her to personal liability should
she fail to make payments as promised. See id. § 524(c) (set-
ting conditions for reaffirmations and exempting them from
the discharge injunction). The final option—recognized in
only some circuits—was the so-called “ride-through” or “pay
and drive.” Under this plan, the debtor continued to make
payments as if the bankruptcy had never occurred. The credi-
tor was forbidden by the automatic stay (and later, by the dis-
charge injunction) from repossessing the collateral unless the
buyer defaulted. If the buyer stopped making payments or
otherwise defaulted, then the creditor could reclaim its collat-
eral but could not pursue a deficiency judgment against the
debtor.
Unsurprisingly, the ride-through system proved popular for
debtors. Debtors usually need a car3 to travel to and from
work, school, medical appointments, and other important
activities. Having just filed for bankruptcy, they understand-
ably expect to experience difficulty securing financing for
another vehicle. Accordingly, they were often willing to con-
tinue payments on loans that were “underwater” (i.e., loans
for which the amount due exceeded the value of the collat-
eral).
Some creditors embraced ride-through, even allowing the
debtor to keep making payments in circuits which did not rec-
ognize the option. See, e.g., Jean Braucher, Rash and Ride-
3
Ride-through was not limited to automobile loans. However, as the
name implies, ride-through was used most frequently to allow debtors to
hold on to an automobile.
13412 DUMONT v. FORD MOTOR CREDIT
Through Redux, 13 AM. BANKR. INST. L. REV. 457, 474-81
(2005). On the other hand, creditors might believe that the
buyer was unlikely to follow through with the plan or that the
collateral might decrease in value faster than payments were
coming in. See Till v. SCS Credit Corp., 541 U.S. 465, 479
(2004) (plurality opinion) (acknowledging the increased risk
of non-payment by bankrupt debtors in the Chapter 13 “cram-
down” context); id. at 502 (Scalia, J., dissenting) (noting the
risk due to depreciation).4
B
[2] Prior to BAPCPA, we had held that ride-through was
available to debtors. McClellan Fed. Credit Union v. Parker
(In re Parker), 139 F.3d 668 (9th Cir. 1998). The Second,
Third, Fourth, and Tenth Circuits held likewise.5 Other cir-
cuits rejected ride-through.6
In Parker, we relied on the clear language of the statute,7
4
The BAP expressed some confusion about Ford’s decision to repossess
given that Dumont was making payments. In re Dumont, 383 B.R. 481,
489 n.17 (BAP 9th Cir. 2008). We decline to speculate as to Ford’s moti-
vations in this case; we only note that a decision to repossess might make
financial sense under certain sets of assumptions.
5
See Price v. Del. State Police Fed. Credit Union (In re Price), 370 F.3d
362 (3d Cir. 2004); Capital Commc’ns Fed. Credit Union v. Boodrow (In
re Boodrow), 126 F.3d 43 (2d Cir. 1997); Home Owners Funding Corp.
of Am. v. Belanger, 962 F.2d 345 (4th Cir. 1992); Lowry Fed. Credit
Union v. West, 882 F.2d 1543 (10th Cir. 1989).
6
See Bank of Boston v. Burr (In re Burr), 160 F.3d 843 (1st Cir. 1998);
Johnson v. Sun Fin. Co. (In re Johnson), 89 F.3d 249, 252 (5th Cir. 1996);
Taylor v. Age Fed. Credit Union (In re Taylor), 3 F.3d 1512 (11th Cir.
1993); In re Edwards, 901 F.2d 1383 (7th Cir. 1990). The Sixth Circuit
rejected a proposal similar to ride-through in General Motors Acceptance
Corp. v. Bell (In re Bell), 700 F.2d 1053, 1056-58 (6th Cir. 1983). How-
ever, that decision predated the 1984 amendments to the Bankruptcy
Code, which “include[d] the language that gave rise to the ride-through
dispute.” Coastal Fed. Credit Union v. Hardiman, 398 B.R. 161, 171 n.8
(E.D.N.C. 2008).
7
At the time Parker was decided, the relevant statute, 11 U.S.C.
§ 521(2) read:
DUMONT v. FORD MOTOR CREDIT 13413
holding that the debtor was required only to file a statement
of intention under then-current section 521(2)(A). We read
the statute to require the debtor to declare an intent to redeem,
reaffirm, or surrender only “ ‘if applicable,’—that is, if the
debtor plan[ned] to choose any of the three options listed . . .
in the statute.” Parker, 139 F.3d at 673 (quoting then-current
11 U.S.C. § 521(2)(A)). “The debtor’s other options
remain[ed] available, as unambiguously stated in [then-
current] § 521(2)(C): “[N]othing in subparagraph[ ](A) . . .
shall alter the debtor’s or the trustee’s rights with regard to
such property under this title.” Id. (final two alterations in origi-
nal).8
C
[3] BAPCPA wrought several changes in the Code which
[I]f an individual debtor’s schedule of assets and liabilities
includes consumer debts which are secured by property of the
estate[, the debtor shall] —
(A) within thirty days after the date of the filing of a petition
under chapter 7 of this title or on or before the date of the meet-
ing of creditors, whichever is earlier, or within such additional
time as the court, for cause, within such period fixes, the debtor
shall file with the clerk a statement of his intention with respect
to the retention or surrender of such property and, if applicable,
specifying that such property is claimed as exempt, that the
debtor intends to redeem such property, or that the debtor intends
to reaffirm debts secured by such property;
(B) within forty-five days after the filing of a notice of intent
under this section, or within such additional time as the court, for
cause, within such forty-five day period fixes, the debtor shall
perform his intention with respect to such property, as specified
by subparagraph (A) of this paragraph; and
(C) nothing in subparagraphs (A) and (B) of this paragraph
shall alter the debtor’s or the trustee’s rights with regard to such
property under this title[.]
8
Subparagraph (C) became known as the savings clause.
13414 DUMONT v. FORD MOTOR CREDIT
may be applicable to ride-through. First, it amended section
521(2), which is now section 521(a)(2). Most relevant for our
purposes, the savings clause in subparagraph (C) now reads:
“[N]othing in subparagraphs (A) and (B) of this paragraph
shall alter the debtor’s or the trustee’s rights with regard to
such property under this title, except as provided in section
362(h).” (emphasis added). 11 U.S.C. § 362(h), added by
BAPCPA, states that the automatic stay is terminated and the
“property shall no longer be property of the estate if the
debtor fails”
(A) to file timely any statement of intention required
. . . or to indicate in such statement that the debtor
will either surrender such personal property or retain
it and, if retaining such personal property, either
redeem [,reaffirm,] or assume such unexpired lease
pursuant to section 365(p)9 if the trustee does not do
so, as applicable; and
(B) to take timely the action specified in such state-
ment, . . . unless such statement specifies the debt-
or’s intention to reaffirm such debt on the original
contract terms and the creditor refuses to agree . . . .
A new section 521(a)(6) was added as well.10
A new section 521(d) provides that
9
Section 365(p) addresses the assumption of unexpired leases. Added by
BAPCPA, it appears to have no relevance to this case.
10
It read, in part: “[The debtor shall] not retain possession of personal
property as to which a creditor has an allowed claim for the purchase price
secured in whole or in part by an interest in such personal property unless
the debtor [timely] either . . . [reaffirms] or . . . redeems such property
. . . .” Later, it continues: “If the debtor fails to so act . . ., the stay under
section 362(a) is terminated with respect to the . . . affected [property],
such property shall no longer be property of the estate, and the creditor
may take whatever action as to such property as is permitted by applicable
nonbankruptcy law.” Id. at § 521(a).
DUMONT v. FORD MOTOR CREDIT 13415
[i]f the debtor fails timely to take the action speci-
fied in [§ 521(a)(6) or § 362(h)(A) or (B)], with
respect to property . . . as to which a creditor holds
a security interest not otherwise voidable . . ., noth-
ing in this title shall prevent or limit the operation of
a provision in the underlying lease or agreement that
has the effect of placing the debtor in default under
such lease or agreement by reason of the occurrence,
pendency, or existence of a proceeding under this
title or the insolvency of the debtor. Nothing in this
subsection shall be deemed to justify limiting such a
provision in any other circumstance.
D
BAPCPA has been criticized for its lack of clarity.11 We
agree that BAPCPA is hardly the very model of a well-drafted
statute. However, it is our task to interpret the laws as passed
by Congress without attempting to force them to cohere more
than their words allow. See Miller v. DaimlerChrysler Fin.
Servs. Ams., LLC (In re Miller), 570 F.3d 633, 639 (5th Cir.
2009) (“[P]erceived poor drafting [in BAPCPA] should not be
11
See, e.g., In re Donald, 343 B.R. 524, 529 (Bankr. E.D.N.C. 2006)
(stating with respect to ride-through: “Unfortunately, the BAPCPA
amendments do not provide a clear answer. The amendments are confus-
ing, overlapping, and sometimes self-contradictory. They introduce new
and undefined terms that resemble, but are different from, established
terms that are well understood. Furthermore, the new provisions address
some situations that are unlikely to arise. Deciphering this puzzle is like
trying to solve a Rubik’s Cube that arrived with a manufacturer’s
defect.”); In re Steinhaus, 349 B.R. 694, 706 (Bankr. D. Idaho 2006) (“[I]t
appears unmistakable that Congress drafted, or allowed to be drafted by
others and then enacted, provisions with ‘loose’ and imprecise lan-
guage.”); Keith Lundin, Ten Principles of BAPCPA, Am. Bankr. Inst. J.,
Sept. 2005, at 1, 1 (“The list of drafting errors and incomprehensible pro-
visions grows every day as bankruptcy professionals digest BAPCPA.
Especially the consumer parts, this legislation was not written or vetted by
the practitioners and scholars usually involved in bankruptcy legislative
efforts.”).
13416 DUMONT v. FORD MOTOR CREDIT
regarded as a license to invalidate plain-text readings in the
name of fixing a statute that some believe is broken.”).
In doing so, we are guided by traditional canons of statu-
tory interpretation. We first note the principle “that a statute
ought, upon the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superfluous,
void, or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31
(2001) (internal quotation marks omitted). Courts should
decline to render any “express exception . . . insignificant, if
not wholly superfluous.” Id. (internal quotation marks omit-
ted). However, according to the plain meaning rule, “where
the language of an enactment is clear [or, in modern parlance,
plain], and construction according to its terms does not lead
to absurd or impracticable consequences, the words employed
are to be taken as the final expression of the meaning intend-
ed.” United States v. Mo. Pac. R.R. Co., 278 U.S. 269, 278
(1929). The scope and applicability of the absurdity exception
to the plain meaning rule is a subject of vigorous debate.12
We further note that, in general, legislative history is not an
able guide here. See, e.g., Parker, 139 F.3d at 673 (noting
that, in the ride-through context, “[t]he legislative history is of
little assistance”); Donald, 343 B.R. at 532-33 (noting the
sparse legislative history available for BAPCPA section 305).
Nor do the purposes of the bankruptcy code provide much
aid. Bankruptcy law serves two central but often conflicting
interests. As Dumont rightly notes, bankruptcy law aims to
protect the “honest but unfortunate debtor.” Local Loan Co v.
Hunt, 292 U.S. 234, 244 (1934). On the other hand, since
ancient times, bankruptcy has also been seen as promoting
12
See, e.g., John F. Manning, The Absurdity Doctrine, 116 HARV. L.
REV. 2387, 2486 (2003) (criticizing the absurdity doctrine as “entail[ing]
the exercise of judicial authority to displace the outcomes of the legislative
process”); Cass R. Sunstein, Interpreting Statutes in the Regulatory State,
103 HARV. L. REV. 405, 440-41 (1989) (defending the use of “more
aggressive” means “when conventional interpretation would produce
absurdity or gross injustice”).
DUMONT v. FORD MOTOR CREDIT 13417
creditor interests as well. See United States v. Kras, 409 U.S.
434, 447 (1973) (noting that discharge provisions developed
in England as a reward for a cooperating debtors); Thomas H.
Jackson, The Fresh-Start Policy in Bankruptcy Law, 98 HARV.
L. REV. 1393, 1395 n.5 (1985) (recognizing “[t]he compara-
tive newness of the fresh-start policy in bankruptcy law”).
Because of the importance of secured lending to the nation’s
economy, secured creditors have been the subject of particular
congressional solicitude. This policy can be seen in other pro-
visions of BAPCPA, including one change which clearly
reflects congressional concern for auto lenders.13
[4] Finally, we observe that congressional power over
bankruptcy affairs is limited by the constitutional requirement
that the bankruptcy laws be “uniform.” U.S. CONST. art. I, § 8,
cl. 4. This principle was explained in Hanover National Bank
v. Moyses, 186 U.S. 181 (1902), which found constitutional
a provision of the Bankruptcy Code which set exemptions by
looking to state law. There, it held that “the system [was], in
the constitutional sense, uniform throughout the United
States, when the trustee takes in each state whatever would
have been available to the creditor if the bankrupt law had not
been passed. The general operation of the law [was] uniform
although it [might] result in certain particulars differently in
different states.” Id. at 190. This is but an example of the prin-
ciple that federal bankruptcy law generally leaves “the deter-
13
Prior to BAPCPA, Chapter 13 debtors could “cramdown” car loans,
bifurcating them into a secured portion equal to the present value of the
automobile and an unsecured portion containing the remaining debt. “It
seems to be undisputed that Congress viewed this use of ‘cramdown’ as
abusive and unfair to car lenders and other lienholders, so it sought to”
give extra protection to these secured lenders. In re Dean, 537 F.3d 1315,
1318 (11th Cir. 2008). BAPCPA did not alter Chapter 13 debtors’ ability
to surrender the collateral or renegotiate a deal with the creditor, but
required them to make payments based on the full amount of the creditor’s
claim where the automobile had been purchased within 910 days of the
bankruptcy and met certain other requirements. See In re Jones, 530 F.3d
1284, 1289 (10th Cir. 2008).
13418 DUMONT v. FORD MOTOR CREDIT
mination of property rights in the assets of a bankrupt’s estate
to state law.” Butner v. United States, 440 U.S. 48, 54 (1979).
It would raise serious constitutional questions for us to con-
clude that Congress affirmatively intended to promote the
non-uniform system caused by the circuit split over ride-
through. The Supreme Court has counseled us to avoid such
conclusions “unless [the alternate] construction is plainly con-
trary to the intent of Congress.” Edward J. DeBartolo Corp.
v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S.
568, 575 (1988). Given the amendment of section 521(a)(2)
and the enactment of section 362(h), it is unlikely that Con-
gress failed to foresee that BAPCPA would have a major
impact on ride-through. Accordingly, we assume that Con-
gress intended to make ride-through available in all circuits,
or none. The direction and tenor of the changes, which place
new duties on debtors and create new sanctions for failure to
comply, suggest that Congress did not intend to increase
access to ride-through by passing BAPCPA.
III
A
We must therefore decide whether our decision in Parker
survived BAPCPA. The bankruptcy court held that it did not,
and that accordingly Dumont had no right to ride-through.
The Ninth Circuit Bankruptcy Appellate Panel unanimously
agreed, following the lead of every bankruptcy court to have
considered whether ride-through is still available to debtors,
at least those who did not seek reaffirmation. In re Dumont,
383 B.R. 481 (BAP 9th Cir. 2008).14
(Text continued on page 13420)
14
The BAP cited the following bankruptcy court decisions as supporting
its conclusion: In re Bower, No. 07-60126-FRA7, 2007 WL 2163472
(Bankr. D. Or. July 26, 2007); In re Moustafi, 371 B.R. 434 (Bankr. D.
Ariz. 2007); In re Openshaw, No. 06C-24120, 2007 WL 2916294 (Bankr.
D. Utah Mar. 12, 2007); In re Ertha Rice, No. 06-10975, 2007 WL
781893 (Bankr. E.D. Pa. Mar.12, 2007); In re Husain, 364 B.R. 211
 DUMONT v. FORD MOTOR CREDIT 13419
(Bankr. E.D. Va. 2007); In re Blakeley, 363 B.R. 225 (Bankr. D. Utah
2007); In re McFall, 356 B.R. 674 (Bankr. N.D. Ohio 2006); In re Ruona,
353 B.R. 688 (Bankr. D.N.M. 2006); In re Riggs, No. 06-60346, 2006 WL
2990218 (Bankr.W.D. Mo. Oct. 12, 2006); In re Steinhaus, 349 B.R. 694
(Bankr. D. Idaho 2006); In re Anderson, 348 B.R. 652 (Bankr. D. Del.
2006); In re Norton, 347 B.R. 291 (Bankr. E.D. Tenn. 2006); In re Don-
ald, 343 B.R. 524 (Bankr. E.D.N.C. 2006); In re Boring, 346 B.R. 178
(Bankr. N.D. W. Va. 2006); In re Rowe, 342 B.R. 341 (Bankr. D. Kan.
2006); In re Craker, 337 B.R. 549 (Bankr. M.D.N.C. 2006). Several cases
after the BAP’s decision also have concluded that ride-through has been
eliminated where there was no attempt at reaffirmation. Fees v. Ford
Motor Credit Co., No. CV07-389-S-EFL, 2008 WL 4630668 (D. Idaho
Oct 17, 2008); In re Baine, 393 B.R. 561 (Bankr. S.D. Ohio 2008); In re
Jones, 397 B.R. 775 (S.D. W. Va. 2008).
Dumont notes that some courts have allowed ride-through after BAP-
CPA. However, in each of these cases, there was “substantial compliance
with § 521(a)(2), § 521(a)(6), and § 362(h).” Jones, 397 B.R. at 788 (cit-
ing In re Baker, 390 B.R. 524 (Bankr. D. Del. 2008); In re Chim, 381 B.R.
191 (Bankr. D. Md. 2008); Moustafi, 371 B.R. at 434; Husain, 364 B.R.
at 211; Blakeley, 363 B.R. at 225); see also Hardiman, 398 B.R. at 161.
In each of these cases, the debtor submitted a reaffirmation agreement to
the bankruptcy court, which rejected the agreement as not in compliance
with 11 U.S.C. § 524(c) for reasons beyond the debtor’s control. See id.
§ 524(c)(6)(A)(ii) (requiring the court to declare the reaffirmation agree-
ment in the best interests of the debtor before approving it if the debtor
is unrepresented); id. § 524(c)(3)(B) (requiring the attorney of a repre-
sented debtor to certify that the agreement “does not impose an undue
hardship on the debtor or a dependent of the debtor” before it can be
approved).
Here, it is undisputed that Dumont rejected an offer of reaffirmation.
We need not address what might have been had Dumont attempted to reaf-
firm only to be rebuffed by either Ford or the bankruptcy court. We are
aware that not addressing this scenario leaves the law of ride-through
unclear, creating uncertainty for many Chapter 7 debtors and creditors
alike. See Am. Bankr. Inst., Annual Non-Business Filings by
Chapter (2007-08), http://www.abiworld.org/AM/TemplateRedirect.cfm?
template=/CM/ContentDisplay.cfm&ContentID=56830 (last visited Aug.
25, 2009) (indicating that 96,678 Chapter 7 cases were filed in California
alone). However, it is a rule of long standing that federal courts may not
issue advisory opinions. See Muskrat v. United States, 219 U.S. 346, 352-
13420 DUMONT v. FORD MOTOR CREDIT
B
We start with section 521(a)(2). Dumont asserts that the
retention of “if applicable” in that section demonstrates the
continuing existence of ride-through. Because Congress
would have known that this court (and the Fourth Circuit)
relied on this phrase to establish ride-through, Dumont argues,
it would have eliminated the phrase had it intended to elimi-
nate ride-through. This argument is not without some force.
Yet, were we to accept Dumont’s view, the amendments to
the savings clause and its reference to section 362(h)15 simply
have no effect. We cannot rely solely on Parker and write the
2005 amendments out of the Bankruptcy Code.
[5] A core underpinning of Parker—“that the only manda-
tory act is the filing of the statement of intention,” 139 F.3d
at 673—is inconsistent with the amendments, which clearly
provide that the debtor shall not only file a statement of inten-
tion but also follow through with his expressed intent. 11
U.S.C. § 362(h). Another pillar of its holding was that the
savings clause indicated “unambiguously” that section
521(a)(2) did not alter the debtor’s rights with regard to the
collateral. 139 F.3d at 673. With the addition of an exception
for section 362(h), this conclusion is not only obsolete but
actively contradicted. The inclusion of the exception strongly
implies that section 362(h) can, in fact, alter the debtor’s
rights with regard to the collateral.
60 (1911) (recounting the origins of the rule, which date back to 1792).
We note that, in an appropriate case dealing with this issue, scheduling
priority may be appropriate because of the significant impact of ride-
through on Chapter 7 bankruptcy practice. See 9th Cir. R. 27-12; 9th Cir.
Gen. Order 3.3(g).
15
“[N]othing in subparagraphs (A) and (B) of this [§ 521(a)(2)] shall
alter the debtor’s or the trustee’s rights with regard to such property under
this title, except as provided in section 362(h)[.]” 11 U.S.C. § 521(a)(2)(C)
(emphasis added).
DUMONT v. FORD MOTOR CREDIT 13421
[6] We now turn to that section to see if Dumont’s rights
were altered. As earlier noted, in this circuit the only duty
imposed by pre-BAPCPA law was to file the notice of inten-
tion. A specification of intent to redeem or reaffirm need only
have been communicated “if applicable”—that is, if the
debtor chose one of those options. Parker, 139 F.3d at 673.
Section 362(h)(1)(A) makes clear that the debtor now has two
duties with respect to the statement of intention. As before,
the debtor must “file timely any statement of intention
required under section 521(a)(2).” Id. But now, he must “indi-
cate in such statement that” he will do one of four things: sur-
render, redeem, reaffirm, or assume an unexpired lease. Id. To
be specific, he must indicate “either” surrender “or” retention;
if he chooses the latter, he must indicate “either” redemption,
reaffirmation, “or” assumption. Id. “Either” means “[t]he one
or the other.” AMERICAN HERITAGE DICTIONARY OF THE ENGLISH
LANGUAGE 572 (4th ed. 2000). Although traditionally it has
referred to only two items, the standards of the English lan-
guage have degenerated such that either is now acceptable
with more than two clauses. See id. at 572-73 (usage note).
However, the “either . . . or” disjunction has always meant
that one of the listed alternatives must be satisfied.16
[7] Thus, while Dumont filed a statement of intention, and
properly stated that she intended to retain the property, she
failed to indicate one of the three permissible means of doing
so. Accordingly, the automatic stay was terminated with
respect to her automobile. Furthermore, the automobile was
no longer the property of the estate.
We pause to note an exception to section 362(h). A debtor
who files an intent to reaffirm on the original contract terms
but is unable to complete such a reaffirmation due to the cred-
itor’s refusal is not subject to the section.17 Ride-through is
16
For instance, if a person states he will do either A or B, he has not
complied with his statement if he instead does C (even if A, B, and C are
in the same class of actions).
17
See 11 U.S.C. § 362(h)(B) (requiring the debtor “to take timely the
action specified in such statement, . . . unless such statement specifies the
13422 DUMONT v. FORD MOTOR CREDIT
functionally indistinguishable from reaffirmation on the origi-
nal terms except for the lack of personal liability in the for-
mer. The careful carve-out of reaffirmation on the contract
terms—a return to the status quo ante bankruptcy—implies
that debtors who attempt to ride-through are subject to section
362(h). If ride-through existed, any lawyer who advised his
client to make a reaffirmation offer on the original contract
terms would be guilty of malpractice, and any bankruptcy
judge who approved such a reaffirmation from a pro se liti-
gant would be seriously derelict in his duties. For why would
one ever choose reaffirmation on such terms and thus incur
the risk of personal liability when one could safely achieve
the same ends by ride-through? Yet Congress clearly contem-
plated that offers of reaffirmation on the original terms would
be made. If the debtor qualifies for the exception, then it
seems that the result would be the same as pre-BAPCPA ride-
through. Congress presumably would not have created an “ex-
ception” to provide access to an option all debtors had in the
first place. If all debtors had the right to elect ride-through in
the first instance, the exception would be wholly devoid of
content. The traditional rules of statutory construction counsel
against that result. This supports a conclusion that ride-
through is not available to all.
C
[8] The mere termination of the automatic stay, however,
was not enough to authorize Ford’s repossession. As Butner
teaches, the disposition of the debtor’s assets is generally left
to state law. 440 U.S. at 54-57. Nothing in the Code itself
authorized Ford to repossess Dumont’s automobile. The
removal of the automatic stay merely lifted one obstacle to its
doing so.
debtor’s intention to reaffirm such debt on the original contract terms and
the creditor refuses to agree.” (emphasis added)).
DUMONT v. FORD MOTOR CREDIT 13423
The parties’ contract, in conjunction with state law, deter-
mines when a debtor has defaulted on an automobile loan.
There is an important caveat, however: 11 U.S.C.
§ 365(e)(i)(B) generally renders unenforceable any contrac-
tual term which purports to create a default solely based on
the commencement of a bankruptcy case. Dumont’s loan con-
tained an ipso facto clause, but unless section 365(e) is
trumped Ford cannot rely on the clause to justify its actions.
The bankruptcy court and the BAP found that section
521(d) provided just the trump Ford needed. Because Dumont
failed to take action required by section 362(h), “nothing in
[the Code] prevent[ed] or limit[ed] the operation of a provi-
sion in the underlying lease or agreement that has the effect
of placing the debtor in default under such lease or agreement
by reason of the occurrence, pendency, or existence of a pro-
ceeding under this title or the insolvency of the debtor.” Id.
§ 521(d).
Section 521(d) gives Ford no substantive right to take
action against the collateral. Where there is no ispo facto
clause in the contract, it does not allow Ford to pencil one in.
Steinhaus, 349 B.R. at 710. Rather it removes the last remain-
ing impediment under federal bankruptcy law to enforcement
of an ipso facto clause that already exists.18
[9] Dumont asserts that while section 521(d) may place the
debtor in default, it “does not provide any recourse or other
action against the Debtor or Debtor’s property.” It “has the
effect of placing the debtor in default, nothing more. A debtor
is simply deemed to be in default.” Unfortunately for
18
Although neither party discusses it in any detail, 11 U.S.C.
§ 541(c)(i)(B) also restricts ipso facto clauses, declaring that at the time
of filing the debtor’s property becomes property of the estate notwith-
standing a contract provision “that effects or gives an option to effect a
forfeiture, modification, or termination of the debtor’s interest in proper-
ty.” But section 362(h) had already divested Dumont’s automobile of its
previous status as property of the estate.
13424 DUMONT v. FORD MOTOR CREDIT
Dumont, the consequences of default are determined by the
contract and state law.19 Dumont’s default did not give Ford
a right to repossess her vehicle by itself, but section 521(d)
did give Ford the rights it possessed under the contract in the
event of default because of Dumont’s filing for bankruptcy.
Ford reserved the right to take the collateral back in case of
a default. Once Dumont failed to take the action required by
section 362(h), federal bankruptcy law no longer prevented
Ford from repossessing her car.
D
Dumont next claims that section 521(d) is inapplicable
because she was never engaged in a bankruptcy “proceeding”20
but only a bankruptcy “case.”21 This argument was not pres-
19
Dumont argues that had Congress intended for a default to mean any-
thing, it would have provided (as it did in section 521(a)(6)) that “the cred-
itor may take whatever action as is permitted by applicable nonbankruptcy
law.” We reject this argument. When Congress has said something clearly
once in a statute, it need not do so again. Congress well knew what placing
a debtor in default meant and what actions it might authorize the creditor
to take (depending on the contract terms and state law). Furthermore, Con-
gress also indicated its understanding of what would happen to debtors in
Dumont’s shoes when it passed the provision of section 362(h) which
divests the property from the estate.
As an alternative, Dumont mentions the possibility of “recourse outside
the Debtor or her property.” As an example of such “recourse,” she asserts
that a default may lead to changes in the creditor’s financial statements or
might trigger a default swap agreement. But the clear purpose of the BAP-
CPA amendments is to compel certain action from the debtor, and sections
362(h) and 521(d) are spurs to compliance.
20
See 11 U.S.C. § 521(d) (providing that “nothing in [the Bankruptcy
Code] shall prevent or limit the operation of a provision [creating a default
under the contract] . . . by reason of the occurrence, pendency, or existence
of a proceeding under this title or the insolvency of the debtor” (emphasis
added)).
21
“In basic bankruptcy terminology, a bankruptcy proceeding is not the
same as a bankruptcy case. A proceeding is something that occurs within
an already existing bankruptcy case.” Donald, 343 B.R. at 538.
DUMONT v. FORD MOTOR CREDIT 13425
ented to the bankruptcy court. The BAP did not consider it,
although she did address it in the opening brief before the
BAP. We conclude, however, that Dumont’s argument falls
within one of the exceptions to the waiver doctrine. “When
the issue conceded or neglected in the trial court is purely one
of law and either does not affect or rely upon the factual
record developed by the parties . . . the court of appeals may
consent to consider it.” United States v. Patrin, 575 F.2d 708,
712 (9th Cir. 1978) (internal citations omitted). The opposing
party must not be prejudiced before the court may consent. Id.
Satisfied that the question is purely one of law and that Ford
was not prejudiced by its absence below, we exercise our dis-
cretion to consider the question.22 In the years since BAPCPA
came into force, no court of appeals has had the opportunity
to pass on the viability of ride-through, and because of the
low amounts of money at stake it may be some time before
the issue here presents itself again to this court. Because the
parties have a strong interest in the resolution of this question
and because it was adequately briefed by both sides, we
decide it now.
[10] We agree with the Donald court that “the language of
§ 521(d) is broad enough to encompass the filing of a bank-
ruptcy case.” Donald, 343 B.R. at 538. We acknowledge that
Congress has referred to “case[s] or proceeding[s]” elsewhere
in the Code. See, e.g., 11 U.S.C. 101(4)(A) (defining “bank-
ruptcy assistance” subject to regulation elsewhere in the
Code). We also agree that the specialized meaning of the term
“proceeding” supports Dumont’s assertion. However, “pro-
ceeding” also has a more general definition which easily
encompasses the filing of a bankruptcy case. See AMERICAN
HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1398 (4th ed.
2000) (defining proceeding as a “course of action” or “a pro-
22
We decline, however, Dumont’s invitation to interpret the term “pro-
ceeding” in her contract with Ford. The interpretation of ambiguous con-
tracts may involve questions of fact as well as law. Fact-finding is not a
proper task for Dumont to ask of us.
13426 DUMONT v. FORD MOTOR CREDIT
cedure” or (in a legal context) “legal action” or “litigation”).
While Black’s Law Dictionary acknowledges the bankruptcy-
specific meaning, the lead definition is “[t]he regular and
orderly progression of a lawsuit, including all acts and events
between the time of commencement and the entry of judg-
ment.” BLACK’S LAW DICTIONARY 1241 (8th ed. 1999).
Accordingly, the reference to a “proceeding” is ambiguous.
We turn to the traditional sources to clarify ambiguous legis-
lative text. The familiar canon of construction, noscitur a
sociis, counsels us to determine the meaning of the term “pro-
ceeding” by reference to the alternate condition for default,
“insolvency.” Insolvency (i.e., in the sense of inability to pay
“debts as such debts become due,”) is generally required for
the initiation of a bankruptcy case. See 11 U.S.C. § 303(h)(1).
And likewise debtors do not generally file for bankruptcy
unless they are insolvent. On the other hand, the filing of a
bankruptcy proceeding (say, seeking discharge of student loan
debt) has nothing to do with insolvency. It merely marks a
changed procedural posture in a case involving an already
insolvent debtor.23
[11] Reading “proceeding” as encompassing the filing of a
case makes sense of the statute. It would be bizarre if the right
to declare someone in default on her car loan depended on the
happenstance of a proceeding (in the technical sense) being
initiated for whatever reason in her case. Because there is no
plain meaning, we need not decide whether the absurdity
exception would apply here.24
23
The relevant committee report also militates against Dumont’s posi-
tion. It states: “If the debtor fails to timely undertake certain specified
actions . . . then nothing in the Bankruptcy Code shall prevent or limit the
operation of a provision in a lease or agreement that places the debtor in
default by reason of the debtor’s bankruptcy or insolvency.” H.R. Rep.
No. 109-31(I), pt. 2, at 71 (2005) (emphasis added).
24
We do note that Dumont’s preferred reading would have mischievous
results for other parts of the Code. For instance, she cites 11 U.S.C.
DUMONT v. FORD MOTOR CREDIT 13427
[12] Finally, we consider how section 521(d) works
together with other sections of the Code. The section is
invoked by the debtor’s failure to do certain things he is
required to do, either under section 521(a)(6) or under section
362(h). Neither those sections of the Code nor the apparent
purpose of section 521(d) bear any relationship to the organi-
zation of litigation in a bankruptcy case. Accordingly, we
hold that the debtor’s filing of a Chapter 7 petition initiates a
“proceeding” for the purposes of section 521(d).
E
Dumont argues that a disclosure required to be made to
consumers who are contemplating reaffirmation demonstrates
that ride-through lives on. The relevant paragraph of the dis-
closure reads:
What if your creditor has a security interest or
lien? Your bankruptcy discharge does not eliminate
any lien on your property. A ‘lien’ is often referred
to as a security interest, deed of trust, mortgage or
security deed. Even if you do not reaffirm and your
personal liability on the debt is discharged, because
of the lien your creditor may still have the right to
take the security property if you do not pay the debt
or default on it. If the lien is on an item of personal
property that is exempt under your State’s law or
that the trustee has abandoned, you may be able to
§ 541(c) for the proposition that Congress knows the technical meaning of
the word “case.” Yet if Congress intended for “proceeding” and “case” to
have only their technical meanings, section 541(c) would not prevent the
action of ipso facto clauses which hinge on the institution of a “proceed-
ing” rather than a “case.” Similar problems occur with section 365(e),
which is the source of the restriction on ipso facto clauses in executory
contracts. Although that section disables ipso facto clauses predicated on
the filing of a “case,” it does not bar the activation of clauses based on
“proceedings.”
13428 DUMONT v. FORD MOTOR CREDIT
redeem the item rather than reaffirm the debt. To
redeem, you make a single payment to the creditor
equal to the current value of the security property, as
agreed by the parties or determined by the court.
11 U.S.C. § 524(k)(3)(J)(i) (emphasis added).
[13] The language is certainly more opaque than one would
hope for a debtor disclosure. It is simply too vague to support
the weight Dumont would have us place upon it. Taken liter-
ally, the italicized sentence merely states the obvious: filing
for bankruptcy does not affect the creditor’s rights in the col-
lateral, and the creditor can exercise its power of repossession
under the contract in case of non-payment or default. Allow-
ing the creditor to exercise a clause placing the debtor in
default is not inconsistent with this truism. Furthermore, the
language “pay the debt” is ambiguous. It could, as Dumont
asserts, mean “continue to make monthly payments as under
the contract.”25 But it could also mean “pay off the debt” (i.e.,
redeem it). This latter reading is supported by the very next
sentence, which offers redemption as the alternative to reaffir-
mation if the collateral is exempt under state law or has been
abandoned by the trustee.
[14] Tellingly, nowhere in the disclosure is ride-through
presented as an option. Given that the disclosure describes
redemption as an alternative to reaffirmation, the absence of
a similar description of ride-through suggests that it is not
authorized in the presence of an ipso facto clause. Because the
intent of the disclosure is to force debtors to “[c]onsider the
decision to reaffirm carefully,” 11 U.S.C. § 524(k)(3)(J)(i),
we decline to read one ambiguous sentence as an endorsement
of ride-through where Congress provided explicit information
25
This reading is uncontroversial where there is no ipso facto clause in
the contract. Accordingly, even if Dumont is correct about the interpreta-
tion of the disclosure, it could refer only to the default rule that bankruptcy
cannot lead to repossession.
DUMONT v. FORD MOTOR CREDIT 13429
about the statutorily authorized alternative to reaffirmation,
redemption.
F
Having decided that section 521(a)(2)(C), in conjunction
with section 362(h), disallows ride-through, we need not con-
sider whether ride-through may also have been terminated
under the provisions of section 521(a)(6).26 We merely note
that the existence of section 521(a)(6) provides further evi-
dence of Congress’s intent to eliminate—or at least to restrict
—ride-through.27
IV
[15] Dumont makes one remaining argument. She asserts
that her claim that the repossession was unlawful under state
law is a matter to be determined by the bankruptcy court. As
26
We have chosen to resolve this case without resort to section
521(a)(6) because of the difficulties of construing the term “for the pur-
chase price.” We express no opinion on the BAP’s conclusion that section
521(a)(6) independently eliminates ride-through in this case. Compare
Dumont, 383 B.R. at 488 (construing “purchase price” to mean “purchase
money security interest” because “[o]therwise the section would probably
be meaningless and have virtually no application because few automobile
lenders finance cars without some form of down payment, and any amount
of down payment would reduce the creditor’s claim to an amount less than
the purchase price”); Steinhaus, 349 B.R. at 706-07 (same result), with
Donald, 343 B.R. at 536 (“A plain meaning construction of the term
‘claim for the purchase price’ indicates a claim for the full purchase
price.“); id. at n.9 (observing that the legislative history is not the final
arbiter of the text’s meaning, particularly where the legislative history for
the same subsection is clearly incorrect on another point).
27
This is clearer in the legislative history than in the text itself; the for-
mer states that the new language “provide[s] that an individual who is a
chapter 7 debtor may not retain possession of personal property securing,
in whole or in part, a purchase money security interest unless the debtor,
within 45 days after the first meeting of creditors, enters into a reaffirma-
tion agreement with the creditor, or redeems the property.” H.R. Rep. No.
109-31(I), pt. 2, at 70-71 (2005).
13430 DUMONT v. FORD MOTOR CREDIT
the BAP stated, “In the Ninth Circuit the test to determine
whether a civil proceeding is related to a bankruptcy case is
whether the outcome of the proceeding could conceivably
have any effect on the estate being administered in bankrupt-
cy.” Dumont, 383 B.R. at 490 (internal quotation marks omit-
ted). By the time of the repossession, the estate did not exist,
and there could have been no effects on the estate.
Dumont also argues that there was supplemental jurisdic-
tion over the state-law claim. However, she only asserted 28
U.S.C. §§ 1331 and 1334 as bases for jurisdiction before the
bankruptcy court. Her assertion of a different jurisdictional
theory here is barred by the doctrine of waiver.28
V
[16] At least where the debtor has not attempted to reaf-
firm, our decision in Parker has been superceded by BAP-
CPA. Accordingly, Ford did not violate the discharge
injunction in repossessing Dumont’s vehicle. The bankruptcy
court rightly held that the propriety of Ford’s actions under
state law was not before it.
AFFIRMED.
28
We hasten to note that Dumont and debtors in her position are not
necessarily bereft of a remedy. “Both Dumont’s and Ford’s rights and
remedies under the[ir] [c]ontract are defined and brought into existence by
their [c]ontract and are now governed by state law.” Dumont, 383 B.R. at
490. While we tend to view Ford’s actions here as sharp practice, we
express no opinion as to whether they also violated any state or non-
bankruptcy federal laws.
DUMONT v. FORD MOTOR CREDIT 13431
GRABER, Circuit Judge, dissenting:
I respectfully dissent.
May a bankruptcy debtor “ride through” bankruptcy—
retaining possession of her motor vehicle, so long as she con-
tinues to make regular loan payments; or must the debtor
instead invoke one of the three options described in 11 U.S.C.
§ 521(a)(2)(A)? Because of confusing and contradictory statu-
tory text, courts have struggled for decades to discern con-
gressional intent on the answer to that simple question.
Indeed, before the enactment of the Bankruptcy Abuse Pre-
vention and Consumer Protection Act of 2005 (“BAPCPA”),
the circuit courts were split five to four. Five circuits—
including ours—had held that the ride-through option was
available to debtors, while four circuits had held that it was
not. See maj. op. at 13412 & nn. 5-6 (collecting cases). The
disagreement at the circuit court level represented only the tip
of the iceberg. In scores of cases, district courts, bankruptcy
appellate panels, and bankruptcy courts had weighed in on the
debate,1 as had commentators.2
1
See, e.g., Mayton v. Sears, Roebuck & Co. (In re Mayton), 208 B.R.
61, 64 (B.A.P. 9th Cir. 1997) (resolving the ride-through issue while not-
ing the “marked disagreement among bankruptcy courts and district
courts”); Sears Roebuck & Co. v. Lamirande, 199 B.R. 221, 223 (Bankr.
D. Mass. 1996) (noting that “[c]ourts across the country have split” on the
ride-through issue and, in the absence of binding precedent, adopting the
more persuasive position); In re Kennedy, 137 B.R. 302, 303-04 (Bankr.
E.D. Ark. 1992) (noting that “[n]umerous bankruptcy courts . . . have
ruled on this issue[ ] with little consistency in results” and, because
“[t]here is no controlling authority in this district,” adopting the “more
persuasive” position).
2
See, e.g., 4 Collier on Bankruptcy ¶ 521.10 (Alan N. Resnick & Henry
J. Sommer eds., 15th ed. rev.) (advancing the Ninth Circuit’s view and
criticizing the opposing view’s reading of the statute); Scott B. Ehrlich,
The Fourth Option of Section 521(2)(A)—Reaffirmation Agreements and
the Chapter 7 Consumer Debtor, 53 Mercer L. Rev. 613, 700 (2002)
(asserting that the ride-through issue “affects billions of dollars in assets
and has great importance for both debtors and creditors”); Marianne B.
13432 DUMONT v. FORD MOTOR CREDIT
The dispute centered on the text of 11 U.S.C. § 521(2)
(2004), which BAPCPA redesignated as § 521(a)(2). Like
many courts and commentators, we held that the text of
§ 521(2) plainly authorized the ride-through option. McClel-
lan Fed. Credit Union v. Parker (In re Parker), 139 F.3d 668,
673 (9th Cir. 1998); see also Home Owners Funding Corp. of
Am. v. Belanger (In re Belanger), 962 F.2d 345 (4th Cir.
1992) (reaching the same conclusion); 4 Collier on Bank-
ruptcy ¶ 521.10 (Alan N. Resnick & Henry J. Sommer eds.,
15th ed. rev.) (same). Other courts held that the text of
§ 521(2) plainly directed the opposite conclusion: Debtors
must choose one of the three options listed in § 521(2)(A).3
See, e.g., Taylor v. AGE Fed. Credit Union (In re Taylor), 3
F.3d 1512, 1517 (11th Cir. 1993).
Our analysis in In re Parker, like the analysis provided by
other courts and commentators, concerned two aspects of the
text of § 521(2): the phrase “if applicable” in § 521(2)(A) and
the text of § 521(2)(C). We reasoned in In re Parker:
The statute states that the debtor
Culhane & Michaela M. White, But Can She Keep the Car? Some
Thoughts on Collateral Retention in Consumer Chapter 7 Cases, 7 Ford-
ham J. Corp. & Fin. L. 471, 498 (2002) (arguing that “[b]oth debtors and
creditors would be better served by recognizing a debtor’s right to ride-
through on some collateral”); Lawrence Ponoroff, Surf’s Up, Dude: Rid-
ing Through Bankruptcy, 7 J. Bankr. L. & Prac. 101, 101-02 (1997) (not-
ing the “decided and disturbing lack of consensus” among courts and
discussing the National Bankruptcy Review Commission’s review of the
ride-through issue); Ned W. Waxman, Redemption or Reaffirmation: The
Debtor’s Exclusive Means of Retaining Possession of Collateral in Chap-
ter 7, 56 U. Pitt. L. Rev. 187, 187 (1994) (stating that the ride-through
issue is “[t]he most controversial consumer credit issue arising in [bank-
ruptcy] cases”).
3
Other courts looked beyond the text, to policy considerations. See
Price v. Del. State Police Fed. Credit Union (In re Price), 370 F.3d 362,
367-68 (3d Cir. 2004) (summarizing cases).
DUMONT v. FORD MOTOR CREDIT 13433
shall file with the clerk a statement of his
intention with respect to the retention or
surrender of such property and, if applica-
ble, specifying that the property is claimed
as exempt, that the debtor intends to redeem
such property, or that the debtor intends to
reaffirm debts secured by such property.
11 U.S.C. § 521(2)(A). Our interpretation of that lan-
guage is that the only mandatory act is the filing of
the statement of intention, which the debtor “shall”
file. Then, “if applicable,”—that is, if the debtor
plans to choose any of the three options listed later
in the statute (claiming the property as exempt,
redeeming the property, or reaffirming the debt)—
the debtor must so specify in the statement of inten-
tion. The debtor’s other options remain available, as
unambiguously stated in § 521(2)(C): “[N]othing in
subparagraph[ ] (A) . . . shall alter the debtor’s or the
trustee’s rights with regard to such property under
this title.” We see no reason to reach beyond this
plain language.
139 F.3d at 673 (alterations in original) (paragraph break
omitted).
As explained by In re Belanger, “[t]he phrase ‘if applica-
ble’ is redundant if . . . the options given to the debtor are
considered to be exclusive.” 962 F.2d at 348. And, of course,
courts should give effect, if possible, to every word in a stat-
ute. Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979). The
Fourth Circuit suggested simple alternative text that Congress
could have used if the options were exclusive, In re Belanger,
962 F.2d at 348—a suggestion that was repeated 12 years
later by the Third Circuit in In re Price, 370 F.3d at 371.
Against this backdrop, Congress enacted BAPCPA in 2005.
The majority begins with the “assum[ption] that Congress
13434 DUMONT v. FORD MOTOR CREDIT
intended to make ride-through available in all circuits, or
none.” Maj. op. at 13418. I am not convinced. The legislative
history is completely silent on the issue, with nary a reference
to the vigorous public debate by the courts and commentators.
In my view, the changes to the text indicate an intent to per-
petuate the extant circuit split, not resolve it.
Most importantly, § 521(a)(2)(A) remains entirely
unchanged. The all-important “if applicable” phrase—the
very source of disagreement among circuit courts, district
courts, bankruptcy courts, and commentators—remains intact.
Congress not only declined to adopt the Fourth Circuit’s sug-
gested text, it declined to make any change whatsoever.
I acknowledge, of course, that Congress did modify
§ 521(a)(2)(C) to include an exception for new § 362(h). But
my examination of that section suggests that, if anything,
Congress intended no change to the existing circuit split. The
new section requires, in relevant part, that the debtor must
indicate in such statement [of intention] that the
debtor will either surrender such personal property
or retain it and, if retaining such personal property,
either redeem such personal property pursuant to
section 722, enter into an agreement of the kind
specified in section 524(c) applicable to the debt
secured by such personal property, or assume such
unexpired lease pursuant to section 365(p) if the
trustee does not do so, as applicable[.]
11 U.S.C. § 362(h)(1) (emphasis added). The text of § 362(h)
thus parallels the text of § 521(a)(2)(A) in that it requires the
debtor to follow one of three options “if applicable,”
§ 521(a)(2)(A), or “as applicable,” § 362(h)(1).4
4
I tend to agree with Ford that the phrase “as applicable”—if read in
isolation—more strongly suggests that one of the three options must be
selected. Given the context of the BAPCPA amendments, the long-
DUMONT v. FORD MOTOR CREDIT 13435
When faced with confusing and contradictory amendments
to already confusing and contradictory statutory text,5 what
should we do? The majority reasonably starts from a pre-
sumption that Congress must have intended to resolve the cir-
cuit split and the more general principle that Congress
intended uniformity in the bankruptcy laws. As explained
above, though, I am not convinced that those presumptions
apply here. In the context of this case, I would fall back on
two different—and equally relevant—presumptions guiding
statutory interpretation.
First, as a general matter, “ ‘Congress is presumed to be
aware of an administrative or judicial interpretation of a stat-
ute and to adopt that interpretation when it re-enacts a statute
without change.’ ” Forest Grove Sch. Dist. v. T.A., 129 S. Ct.
2484, 2492 (2009) (quoting Lorillard v. Pons, 434 U.S. 575,
580 (1978)). As noted above, the differing judicial interpreta-
tions were well known and were encapsulated in the five-four
circuit split. Yet Congress did not amend § 521(a)(2)(A) or
the critical phrase “if applicable,” even though courts and
commentators across the nation had provided different inter-
pretations of that section. Additionally, although Congress
amended § 521(a)(2)(C) to include the new § 362(h), it car-
ried forward the important qualifier “applicable.” “[A]bsent a
clear expression elsewhere in the Amendments of Congress’
intent to repeal some portion of that provision or to abrogate
[the circuit split],” Forest Grove, 129 S. Ct. at 2492 (emphasis
added), we should continue to read the statute as we did pre-
BAPCPA. As I read the BAPCPA amendments, no such
“clear expression” emerges.
standing jurisprudence and commentary on the ride-through option, and
the interplay between § 521 and § 362, however, I decline to assign much
weight to the potential distinction between “if applicable” and “as applica-
ble.” The phrase “as applicable” is not so rigid as to command that one
of the listed options must be followed.
5
The majority readily acknowledges the confusing nature of the amend-
ments. Maj. op. at 13415 & n.11.
13436 DUMONT v. FORD MOTOR CREDIT
I pause to note that I do not disagree with the majority that
the general “direction and tenor of the changes . . . suggest
that Congress did not intend to increase access to ride-through
by passing BAPCPA.” Maj. op. at 13418. But the general “di-
rection and tenor” of a statutory amendment is not the correct
inquiry. The correct inquiry is congressional intent with
respect to the specific issue. Furthermore, I readily agree that
“Congress did not intend to increase access to ride-through by
passing BAPCPA.” In my view, though, Congress decided to
do nothing—neither increasing nor decreasing access to ride-
through. Rather, Congress simply side-stepped the conten-
tious ride-through issue, thus perpetuating the circuit split.
Second, specific to the Bankruptcy Code, the overarching
guiding principle of statutory interpretation, “again and again
emphasized by the courts,” Local Loan Co. v. Hunt, 292 U.S.
234, 244 (1934), strongly supports my view: “The principal
purpose of the Bankruptcy Code is to grant a fresh start to the
honest but unfortunate debtor,” Marrama v. Citizens Bank of
Mass., 549 U.S. 365, 367 (2007) (internal quotation marks
omitted). Here, Dumont filed for bankruptcy, stated her intent
to retain the car as a ride-through, and declined Ford’s request
to reaffirm the debt. Ford filed a claim with the bankruptcy
court but, so far as the record reveals, never objected to
Dumont’s statement of intent or her rejection of the offer of
reaffirmation. The bankruptcy case proceeded in the normal
course, and the bankruptcy court issued an order of discharge.
At all times—both during the bankruptcy proceedings and
after the discharge order—Dumont continued to make her
regularly scheduled loan payments to Ford. Months after the
discharge and without any notice to Dumont, Ford repos-
sessed Dumont’s car. As can be imagined, Dumont claims
that the repossession of her only means of transportation,
without any notice whatsoever, caused her great difficulties.6
It is hard—if not impossible—to reconcile Ford’s actions with
6
As courts have noted, a debtor’s personal automobile is often “vital”
to the debtor (and the estate) because, for example, the “automobile [is]
DUMONT v. FORD MOTOR CREDIT 13437
the principal purpose of the Bankruptcy Code: to give
Dumont a “fresh start.” In the absence of a clear congressio-
nal intent approving Ford’s actions, I would not read such an
intent into the statute.
In conclusion, I borrow text, equally applicable here, from
my colleagues in a recent bankruptcy appeal concerning a dif-
ferent perplexing provision:
The “correct” answer to the question before us,
which the courts have been struggling with for years
—at the unnecessary cost of thousands of hours of
valuable judicial time—depends ultimately not upon
our interpretation of the statute, but upon what Con-
gress wants the answer to be. We would hope, in this
regard, that we the judiciary would be relieved of
this Sisyphean adventure by legislation clearly
answering a straightforward policy question: [May
debtors invoke the “ride-through” option?]
Ransom v. MBNA, Am. Bank, N.A. (In re Ransom), No. 08-
15066, 2009 WL 2477609, at *6 (9th Cir. Aug. 14, 2009). In
contrast to the situation in In re Ransom, we have already
answered the question at hand. In re Parker, 370 F.3d at 371.
Because the BAPCPA amendments add only confusion, I
would not overrule In re Parker.
used to commute to one’s workplace.” In re Price, 370 F.3d at 378 n.10.
Additionally, a debtor’s financial situation and access to financing for a
new vehicle during—or, as here, immediately following—bankruptcy is
generally limited, because she recently has filed for bankruptcy. Capital
Commc’ns Fed. Credit Union v. Boodrow (In re Boodrow), 126 F.3d 43,
52 (2d Cir. 1997).