11 U.S.C. § 506 — Determination of secured status

Page 116 TITLE 11—BANKRUPTCY § 506 Editorial Notes AMENDMENTS 2010—Subsec. (a)(2)(C). Pub. L. 111–327 substituted ‘‘applicable nonbankruptcy law’’ for ‘‘any law (other than a bankruptcy law)’’. 2005—Subsec. (a)(2)(C). Pub. L. 109–8, § 701(b), added subpar. (C). Subsec. (b). Pub. L. 109–8, § 703, added par. (1), redesig- nated existing provisions of subsec. (b) as par. (2) and inserted ‘‘at the address and in the manner designated in paragraph (1)’’ after ‘‘determination of such tax’’ in introductory provisions, redesignated former pars. (1) to (3) of subsec. (b) as subpars. (A) to (C), respectively, of par. (2), and redesignated former subpars (A) and (B) of par. (1) as cls. (i) and (ii), respectively, of subpar. (A). Subsec. (b)(2). Pub. L. 109–8, § 715, inserted ‘‘the es- tate,’’ after ‘‘misrepresentation,’’ in introductory pro- visions. 1984—Subsec. (a)(2)(B)(i). Pub. L. 98–353 substituted ‘‘or’’ for ‘‘and’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2005 AMENDMENT Amendment by Pub. L. 109–8 effective 180 days after Apr. 20, 2005, and not applicable with respect to cases commenced under this title before such effective date, except as otherwise provided, see section 1501 of Pub. L. 109–8, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–353 effective with respect to cases filed 90 days after July 10, 1984, see section 552(a) of Pub. L. 98–353, set out as a note under section 101 of this title. § 506. Determination of secured status (a)(1) An allowed claim of a creditor secured by a lien on property in which the estate has an interest, or that is subject to setoff under sec- tion 553 of this title, is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property, or to the extent of the amount subject to setoff, as the case may be, and is an unsecured claim to the extent that the value of such creditor’s interest or the amount so subject to setoff is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor’s interest. (2) If the debtor is an individual in a case under chapter 7 or 13, such value with respect to personal property securing an allowed claim shall be determined based on the replacement value of such property as of the date of the fil- ing of the petition without deduction for costs of sale or marketing. With respect to property acquired for personal, family, or household pur- poses, replacement value shall mean the price a retail merchant would charge for property of that kind considering the age and condition of the property at the time value is determined. (b) To the extent that an allowed secured claim is secured by property the value of which, after any recovery under subsection (c) of this section, is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any rea- sonable fees, costs, or charges provided for under the agreement or State statute under which such claim arose. (c) The trustee may recover from property se- curing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim, including the payment of all ad valorem property taxes with respect to the property. (d) To the extent that a lien secures a claim against the debtor that is not an allowed se- cured claim, such lien is void, unless— (1) such claim was disallowed only under sec- tion 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. (Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2583; Pub. L. 98–353, title III, § 448, July 10, 1984, 98 Stat. 374; Pub. L. 109–8, title III, § 327, title VII, § 712(d), Apr. 20, 2005, 119 Stat. 99, 128.) HISTORICAL AND REVISION NOTES LEGISLATIVE STATEMENTS Section 506(a) of the House amendment adopts the provision contained in the Senate amendment and re- jects a contrary provision as contained in H.R. 8200 as passed by the House. The provision contained in the Senate amendment and adopted by the House amend- ment recognizes that an amount subject to set-off is sufficient to recognize a secured status in the holder of such right. Additionally a determination of what por- tion of an allowed claim is secured and what portion is unsecured is binding only for the purpose for which the determination is made. Thus determinations for pur- poses of adequate protection is not binding for purposes of ‘‘cram down’’ on confirmation in a case under chap- ter 11. Section 506(b) of the House amendment adopts lan- guage contained in the Senate amendment and rejects language contained in H.R. 8200 as passed by the House. If the security agreement between the parties provides for attorneys’ fees, it will be enforceable under title 11, notwithstanding contrary law, and is recoverable from the collateral after any recovery under section 506(c). Section 506(c) of the House amendment was contained in H.R. 8200 as passed by the House and adopted, ver- batim, in the Senate amendment. Any time the trustee or debtor in possession expends money to provide for the reasonable and necessary cost and expenses of pre- serving or disposing of a secured creditor’s collateral, the trustee or debtor in possession is entitled to re- cover such expenses from the secured party or from the property securing an allowed secured claim held by such party. Section 506(d) of the House amendment is derived from H.R. 8200 as passed by the House and is adopted in lieu of the alternative test provided in section 506(d) of the Senate amendment. For purposes of section 506(d) of the House amendment, the debtor is a party in inter- est. Determination of Secured Status: The House amend- ment deletes section 506(d)(3) of the Senate amend- ment, which insures that a tax lien securing a non- dischargeable tax claim is not voided because a tax au- thority with notice or knowledge of the bankruptcy case fails to file a claim for the liability (as it may elect not to do, if it is clear there are insufficient as- sets to pay the liability). Since the House amendment retains section 506(d) of the House bill that a lien is not voided unless a party in interest has requested that the court determine and allow or disallow the claim, provi- sion of the Senate amendment is not necessary. SENATE REPORT NO. 95–989 Subsection (a) of this section separates an under- secured creditor’s claim into two parts: He has a se- Page 117 TITLE 11—BANKRUPTCY § 507 1 See References in Text note below. cured claim to the extent of the value of his collateral; and he has an unsecured claim for the balance of his claim. The subsection also provides for the valuation of claims which involve setoffs under section 553. While courts will have to determine value on a case-by-case basis, the subsection makes it clear that valuation is to be determined in light of the purpose of the valuation and the proposed disposition or use of the subject prop- erty. This determination shall be made in conjunction with any hearing on such disposition or use of property or on a plan affecting the creditor’s interest. To illus- trate, a valuation early in the case in a proceeding under sections 361–363 would not be binding upon the debtor or creditor at the time of confirmation of the plan. Throughout the bill, references to secured claims are only to the claim determined to be secured under this subsection, and not to the full amount of the credi- tor’s claim. This provision abolishes the use of the terms ‘‘secured creditor’’ and ‘‘unsecured creditor’’ and substitutes in their places the terms ‘‘secured claim’’ and ‘‘unsecured claim.’’ Subsection (b) codifies current law by entitling a creditor with an oversecured claim to any reasonable fees (including attorney’s fees), costs, or charges pro- vided under the agreement under which the claim arose. These fees, costs, and charges are secured claims to the extent that the value of the collateral exceeds the amount of the underlying claim. Subsection (c) also codifies current law by permitting the trustee to recover from property the value of which is greater than the sum of the claims secured by a lien on that property the reasonable, necessary costs and expenses of preserving, or disposing of, the property. The recovery is limited to the extent of any benefit to the holder of such claim. Subsection (d) provides that to the extent a secured claim is not allowed, its lien is void unless the holder had neither actual notice nor knowledge of the case, the lien was not listed by the debtor in a chapter 9 or 11 case or such claim was disallowed only under section 502(e). HOUSE REPORT NO. 95–595 Subsection (d) permits liens to pass through the bankruptcy case unaffected. However, if a party in in- terest requests the court to determine and allow or dis- allow the claim secured by the lien under section 502 and the claim is not allowed, then the lien is void to the extent that the claim is not allowed. The voiding provision does not apply to claims disallowed only under section 502(e), which requires disallowance of cer- tain claims against the debtor by a codebtor, surety, or guarantor for contribution or reimbursement. Editorial Notes AMENDMENTS 2005—Subsec. (a). Pub. L. 109–8, § 327, designated exist- ing provisions as par. (1) and added par. (2). Subsec. (b). Pub. L. 109–8, § 712(d)(1), inserted ‘‘or State statute’’ after ‘‘agreement’’. Subsec. (c). Pub. L. 109–8, § 712(d)(2), inserted ‘‘, including the payment of all ad valorem property taxes with respect to the property’’ before period at end. 1984—Subsec. (b). Pub. L. 98–353, § 448(a), inserted ‘‘for’’ after ‘‘provided’’. Subsec. (d)(1). Pub. L. 98–353, § 448(b), substituted ‘‘such claim was disallowed only under section 502(b)(5) or 502(e) of this title’’ for ‘‘a party in interest has not requested that the court determine and allow or dis- allow such claim under section 502 of this title’’. Subsec. (d)(2). Pub. L. 98–353, § 448(b), substituted ‘‘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’’ for ‘‘such claim was dis- allowed only under section 502(e) of this title’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2005 AMENDMENT Amendment by Pub. L. 109–8 effective 180 days after Apr. 20, 2005, and not applicable with respect to cases commenced under this title before such effective date, except as otherwise provided, see section 1501 of Pub. L. 109–8, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–353 effective with respect to cases filed 90 days after July 10, 1984, see section 552(a) of Pub. L. 98–353, set out as a note under section 101 of this title. § 507. Priorities (a) The following expenses and claims have priority in the following order: (1) First: (A) Allowed unsecured claims for domestic support obligations that, as of the date of the filing of the petition in a case under this title, are owed to or recoverable by a spouse, former spouse, or child of the debtor, or such child’s parent, legal guardian, or responsible relative, without regard to whether the claim is filed by such person or is filed by a governmental unit on behalf of such person, on the condition that funds received under this paragraph by a governmental unit under this title after the date of the filing of the petition shall be applied and distributed in accordance with applicable nonbankruptcy law. (B) Subject to claims under subparagraph (A), allowed unsecured claims for domestic support obligations that, as of the date of the filing of the petition, are assigned by a spouse, former spouse, child of the debtor, or such child’s parent, legal guardian, or re- sponsible relative to a governmental unit (unless such obligation is assigned volun- tarily by the spouse, former spouse, child, parent, legal guardian, or responsible rel- ative of the child for the purpose of col- lecting the debt) or are owed directly to or recoverable by a governmental unit under applicable nonbankruptcy law, on the condi- tion that funds received under this para- graph by a governmental unit under this title after the date of the filing of the peti- tion be applied and distributed in accordance with applicable nonbankruptcy law. (C) If a trustee is appointed or elected under section 701, 702, 703, 1104, 1202, or 1302, the administrative expenses of the trustee allowed under paragraphs (1)(A), (2), and (6) of section 503(b) shall be paid before pay- ment of claims under subparagraphs (A) and (B), to the extent that the trustee admin- isters assets that are otherwise available for the payment of such claims. (2) Second, administrative expenses allowed under section 503(b) of this title, unsecured claims of any Federal reserve bank related to loans made through programs or facilities au- thorized under section 13(3) of the Federal Re- serve Act (12 U.S.C. 343),1 and any fees and