Dewsnup v. Timm/Dissent Scalia
Justice SCALIA, with whom Justice SOUTER joins, dissenting.
With exceptions not pertinent here, § 506(d) of the Bankruptcy Code provides: "To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void. . . ." Read naturally and in accordance with other provisions of the statute, this automatically voids a lien to the extent the claim it secures is not both an "allowed claim" and a "secured claim" under the Code. In holding otherwise, the Court replaces what Congress said with what it thinks Congress ought to have said-and in the process disregards, and hence impairs for future use, well-established principles of statutory construction. I respectfully dissent.
* This case turns solely on the meaning of a single phrase found throughout the Bankruptcy Code: "allowed secured claim." Section 506(d) unambiguously provides that to the extent a lien does not secure such a claim it is (with certain exceptions) rendered void. See 11 U.S.C. § 506(d) (emphasis added). Congress did not leave the meaning of "allowed secured claim" to speculation. Section 506(a) says that an "allowed claim" (the meaning of which is obvious) is also a "secured claim" "to the extent of the value of [the] creditor's interest in the estate's interest in [the securing] property." (This means, generally speaking, that an allowed claim "is secured only to the extent of the value of the property on which the lien is fixed; the remainder of that claim is considered unsecured." United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 239, 109 S.Ct. 1026, 1029, 103 L.Ed.2d 290 (1989).) When § 506(d) refers to an "allowed secured claim," it can only be referring to that allowed "secured claim" so carefully described two brief subsections earlier.
The phrase obviously bears the meaning set forth in § 506(a) when it is used in the subsections of § 506 other than § 506(d) for example, in § 506(b), which addresses "allowed secured claim[s]" that are oversecured. Indeed, as respondents apparently concede, see Brief for Respondents 40; Tr. of Oral Arg. 29-30, even when the phrase appears outside of § 506, it invariably means what § 506(a) describes: the portion of a creditor's allowed claim that is secured after the calculations required by that provision have been performed. See, e.g., 11 U.S.C. § 722 (permitting a Chapter 7 debtor to redeem certain tangible personal property from certain liens "by paying the holder of such lien the amount of the allowed secured claim of such holder that is secured by such lien"); § 1225(a)(5) (prescribing treatment of "allowed secured claim[s] " in family farmer's reorganization plan); § 1325(a)(5) (same with respect to "allowed secured claim[s] " in individual reorganizations) (emphases added). The statute is similarly consistent in its use of the companion phrase "allowed unsecured claim" to describe (with respect to a claim supported by a lien) that portion of the claim that is treated as "unsecured" under § 506(a). See, e.g., 11 U.S.C. § 507(a)(7) (fixing priority of "allowed unsecured claims of governmental units"); § 726(a)(2) (providing for payment of "allowed unsecured claim[s] " in Chapter 7 liquidation); § 1225(a)(4) (setting standard for treatment of "allowed unsecured claim[s] " in Chapter 12 plan); § 1325(a)(4) (setting standard for treatment of "allowed unsecured claim[s] " in Chapter 13 plan) (emphases added). When, on the other hand, the Bankruptcy Code means to refer to a secured party's entire allowed claim, i.e., to both the "secured" and "unsecured" portions under § 506(a), it uses the term "allowed claim "-as in 11 U.S.C. § 363(k), which refers to "a lien that secures an allowed claim." Given this clear and unmistakable pattern of usage, it seems to me impossible to hold, as the Court does, that "the words 'allowed secured claim' in § 506(d) need not be read as an indivisible term of art defined by reference to § 506(a)." Ante, at 415; see ante, at 416-417. We have often invoked the " 'normal rule of statutory construction that " 'identical words used in different parts of the same act are intended to have the same meaning.' " ' " Sullivan v. Stroop, 496 U.S. ----, ----, 110 S.Ct. 2499, 2504, 110 L.Ed.2d 438 (1990) (quoting Sorenson v. Secretary of Treasury, 475 U.S. 851, 860, 106 S.Ct. 1600, 1606-1607, 89 L.Ed.2d 855 (1986) (quoting Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 87, 55 S.Ct. 50, 51-52, 79 L.Ed. 211 (1934) (quoting Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433, 52 S.Ct. 607, 608-609, 76 L.Ed. 1204 (1932)). That rule must surely apply, a fortiori, to use of identical words in the same section of the same enactment.
The Court makes no attempt to establish a textual or structural basis for overriding the plain meaning of § 506(d), but rests its decision upon policy intuitions of a legislative character,  and upon the principle that a text which is "ambiguous" (a status apparently achieved by being the subject of disagreement between self-interested litigants) cannot change pre-Code law without the imprimatur of "legislative history." Thus abandoning the normal and sensible principle that a term (and especially an artfully defined term such as "allowed secured claim") bears the same meaning throughout the statute, the Court adopts instead what might be called the one-subsection-at-a-time approach to statutory exegesis. "[W]e express no opinion," the Court amazingly says, "as to whether the words 'allowed secured claim' have different meaning in other provisions of the Bankruptcy Code." Ante, at 417, n. 3. "We . . . focus upon the case before us and allow other facts to await their legal resolution on another day." Ante, at 416-417.
As to the meaning of this single subsection (considered, of course, in a vacuum), the Court claims to be embracing "respondents' alternative position," ante, at 417, which is "that the words 'allowed secured claim' in § 506(d) need not be read as an indivisible term of art defined by reference to § 506(a)," ante, at 415; and that "secured claim" (for purposes of § 506(d) alone) simply connotes an allowed claim that is "secured" in the ordinary sense, i.e., that is backed up by a security interest in property, whether or not the value of the property suffices to cover the claim. The Court attributes this position to the United States as well, ante, at 415-416, and n. 2, but the Government's position is in fact different-and significantly so, since it does (as proper statutory interpretation ought to do) give the phrase "allowed secured claim" a uniform meaning. I must describe the Government's theory, and explain why it does not work.
The distinctive feature of the United States' approach is that it seeks to avoid invalidation of the so-called "underwater" portion of the lien by focusing, not upon the phrase "allowed secured claim" in § 506(d), but upon the prior phrase "secures a claim." ("To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void" (Emphasis added.)) Under the Government's textual theory, this phrase can be read to refer not merely to the object of the security, but to its adequacy. That is to say, a lien only "secures" the claim in question up to the value of the security that is the object of the lien-and only up to that value is the lien subject to avoidance under § 506(d).  This interpretation succeeds in giving the phrase "allowed secured claim," which appears later in § 506(d), a meaning compatible with that compelled by § 506(a). But that is its only virtue.
To begin with, the interpretation renders some of the language in § 506(d) surplusage. If the phrase "[t]o the extent that a lien secures a claim" describes only that portion of a claim that is secured by actual economic value, then the later phrase "is not an allowed secured claim" should instead have read simply "is not allowed." For the phrase "allowed secured claim" itself describes a claim that is actually secured in light of § 506(a)'s calculations. Another reading of § 506(d)'s opening passage is available, one that does not assume such clumsy draftsmanship-and that employs, to boot, a much more natural reading of the phrase "lien secures a claim." The latter ordinarily describes the relationship between a lien and a claim, not the relationship between the value of the property subject to the lien and the amount of the claim. One would say that a "mortgage secures the claim" for the purchase price of a house, even if the value of the house was inadequate to satisfy the full amount of the claim. In other words, "[t]o the extent that a lien secures a claim" means in § 506(d) what it ordinarily means: "to the extent a lien provides its holder with a right to retain property in full or partial satisfaction of a claim." It means that in § 506(d) just as it means that in § 506(a), see 11 U.S.C. § 506(a) ("An allowed claim of a creditor secured by a lien . . . is a secured claim to the extent . . .") (emphasis added), and just as it means that elsewhere in the Bankruptcy Code, see, e.g., § 362(a)(5) ("to the extent that such lien secures a claim"); 11 U.S.C. § 363(k) ("lien that secures an allowed claim"). An unnatural meaning should be disfavored at any time, but particularly when it produces a redundancy. See Montclair v. Ramsdell, 107 U.S. 147, 152, 27 L.Ed. 431 (1883).
Of course respondents' interpretation also creates a redundancy in § 506(d). If a "secured claim" means only a claim for which a lien has been given as security (whether or not the security is adequate), then the prologue of § 506(d) can be reformulated as follows: "To the extent that a lien secures a claim against the debtor that is not an allowed claim secured by a lien, such lien is void. . . ." Quite obviously, the phrase "secured by a lien" in that reformulation is utterly redundant and absurd-as is (on respondents' interpretation) the word "secured," which bears the same meaning. In other words, both the United States' interpretation and respondents' interpretation create a redundancy: the former by making both parts of the § 506(d) prologue refer to adequate security, and the latter by making both parts refer to security plain-and-simple. Only when one gives the words in the first part of the prologue ("[t]o the extent that a lien secures a claim") their natural meaning (as the Government does not) and gives the words in the second part of the prologue ("allowed secured claim") their previously established statutory meaning (as the respondents do not) does the provision make a point instead of a redundancy.
Moreover, the practical consequences of the United States' interpretation would be absurd. A secured creditor holding a lien on property that is completely worthless would not face lien avoidance under § 506(d), even if the claim secured by that lien were disallowed entirely. The same would be true of a lien on property that has some value but is obviously inadequate to cover all of the disallowed claim: the lien would be voided only to the extent of the property's value at the time of the bankruptcy court's evaluation, and could be asserted against any increase in the value of the property that might later occur, in order to satisfy the disallowed claim. Unavoided liens (or more accurately, potentials of unavoided liens, since no one knows whether or when future evaluations of the relevant property will exceed that of the bankruptcy court) would impede the trustee's management and settlement of the estate. It would be difficult, for example, to sell overencumbered property subject to outstanding liens pursuant to 11 U.S.C. § 363(b) or (c), since any post-sale appreciation in the property could be levied upon by holders of disallowed secured claims. And in a sale of debtor property "free and clear" of the liens attached to it, see 11 U.S.C. § 363(f)(3), the undisturbed portion of the disallowed claimant's lien might attach to the proceeds of that sale to the extent of the collateral's post-petition appreciation, preventing the trustee from distributing some or all of the sale proceeds to creditors holding allowed claims. If possible, we should avoid construing the statute in a way that produces such absurd results.
Although the Court makes no effort to explain why petitioner's straightforward reading of § 506(d) is textually or structurally incompatible with other portions of the statute, respondents and the United States do so. They point out, to begin with, that the two exceptions to § 506(d)'s nullifying effect both pertain to the disallowance of claims, and not to the inadequacy of security, see 11 U.S.C. §§ 506(d)(1) and (2)-from which they conclude that the applicability of § 506(d) turns only on the allowability of the underlying claim, and not on the extent to which the claim is a "secured claim" within the meaning of § 506(a). But the fact that the statute makes no exceptions to invalidation by reason of inadequate security in no way establishes that such (plainly expressed) invalidation does not exist. The premise of the argument-that if a statute qualifies a noun with two adjectives ("allowed" and "secured"), and provides exceptions with respect to only one of the adjectives, then the other can be disregarded-is simply false. The most that can be said is that the two exceptions in § 506(d) do not contradict the United States' and respondents' interpretation; but they in no way suggest or support it.
Respondents and the United States also identify supposed inconsistencies between petitioner's construction of § 506(d) and other sections of the Bankruptcy Code; they are largely illusory. The principal source of concern is § 722, which enables a Chapter 7 debtor to "redeem" narrow classes of exempt or abandoned personal property from "a lien securing a dischargeable consumer debt." The price of redemption is fixed as "the amount of the allowed secured claim of [the lienholder] that is secured by such lien" (emphasis added). This provision, we are told, would be largely superfluous if § 506(d) automatically stripped liens securing undersecured claims to the value of the collateral, i.e., to the value of the allowed secured claims.
This argument is greatly overstated. Section 722 is necessary, and not superfluous, because § 506(d) is not a redemption provision. It reduces the value of a lienholder's equitable interest in a debtor's property to the property's liquidation value, but it does not insure the debtor an opportunity to "redeem" the property at that price, i.e., to "free [the] property . . . from [the] mortgage or pledge by paying the debt for which it stood as security." Black's Law Dictionary 1278 (6th ed. 1990). Congress had good reason to be solicitous of the debtor's right to redeem personal property (the exclusive subject of § 722), since state redemption laws are typically less generous for personalty than for real property. Compare, e.g., Utah Code Ann. § 57-1-31 (1990) with Uniform Commercial Code § 9-506, 3A U.L.A. 370 (1981). The most that can be said regarding § 722 is that petitioner's construction of § 506(d) would permit a more concise formulation: Instead of describing the redemption price as "the amount of the allowed secured claim . . . that is secured by such lien" it would have been possible to say simply "the amount of the claim . . . that is secured by such lien"-since § 506(d) would automatically have cut back the lien to the amount of the allowed secured claim. I would hardly call the more expansive formulation a redundancy not when it is so far removed from the section that did the "cutting back" that the reader has likely forgotten it.
Respondents and their amicus also make much of the need to avoid giving Chapter 7 debtors a better deal than they can receive under the other Chapters of the Bankruptcy Code. They assert that, by enabling a Chapter 7 debtor to strip down a secured creditor's liens and pocket any post-petition appreciation in the property, petitioner's construction of § 506(d) will discourage debtors from using the preferred mechanisms of reorganization under Chapters 11, 12, and 13. This evaluation of the "finely reticulated" incentives affecting a debtor's behavior rests upon critical-and perhaps erroneous-assumptions about the meaning of provisions in the reorganization chapters. Respondents assume, for example, that a debtor in Chapter 13 cannot strip down a mortgage placed on the debtor's home; but that assumption may beg the very question the Court answers today. True, § 1322(b)(2) provides that Chapter 13 filers may not "modify the rights of holders of secured claims" that are "secured only by a security interest in real property that is the debtor's principal residence," 11 U.S.C. § 1322(b)(2) (emphasis added). But this can be (and has been) read, in light of § 506(a), to prohibit modification of the mortgagee's rights only with respect to the portion of his claim that is deemed secured under the Code, see, e.g., In re Hart, 923 F.2d 1410, 1415 (CA10 1991); Wilson v. Commonwealth Mortgage Corp., 895 F.2d 123, 127 (CA3 1990). If petitioner's construction of § 506(d) were applied consistently in this fashion to the Code's various chapters, see 11 U.S.C. § 103(a) (providing that "chapters 1, 3, and 5 . . . [shall] apply in a case under chapter 7, 11, 12, or 13"), Chapter 7 would not appear unduly attractive. In any event, reorganization contains other enticements to lure a debtor away from Chapter 7. It not only permits him to maintain control over his personal and business assets, but affords a broader discharge from prepetition in personam liabilities. Compare, e.g., 11 U.S.C. § 523 (listing numerous exceptions to Chapter 7 discharge) with 11 U.S.C. § 1328(a) (listing two exceptions to Chapter 13 discharge). Compare, e.g., Kelly v. Robinson, 479 U.S. 36, 50, 107 S.Ct. 353, 361, 93 L.Ed.2d 216 (1986) (restitution obligations imposed in criminal judgments nondischargeable in Chapter 7) with Pennsylvania Dept. of Public Welfare v. Davenport, 495 U.S. 552, 563-564, 110 S.Ct. 2126, ---- - ----, 109 L.Ed.2d 588 (1990) (such restitution obligations dischargeable in Chapter 13).
Finally, respondents and the United States find it incongruous that Congress would so carefully protect secured creditors in the context of reorganization while allowing them to be fleeced in a Chapter 7 liquidation by operation of § 506(d). This view mistakes the generosity of treatment that creditors can count upon in reorganization. There, no more than under Chapter 7, can they demand the benefit of postevaluation increases in the value of property given as security. See 11 U.S.C. §§ 1129(b)(2)(A) and 1325(a)(5) (permitting "cram-down" of reorganization plan over objections of secured creditors if creditors are to receive payments equal in present value to the cash value of the collateral, and if creditors retain liens securing such payments). 
I must also address the Tenth Circuit's basis for the decision affirmed today (alluded to by the Court, ante, at 414, but not discussed), that § 506 does not apply to property abandoned by the bankruptcy trustee under § 554, see 11 U.S.C. § 554. Respondents' principal argument before us was a modified (and less logical) version of the same basic point-viz., that although § 506(a) applies to abandoned property, § 506(d) does not. I can address the point briefly, since the plain-language obstacles to its validity are even more pronounced than those raised by the Court's approach.
The Court of Appeals' reasoning was as follows: § 506(d) effects lien-stripping only with respect to property subject to § 506(a); but by its terms § 506(a) applies only to property "in which the estate has an interest"; since "[t]he estate has no interest in, and does not administer, abandoned property," § 506(a), and hence § 506(d), does not apply to it. In re Dewsnup, 908 F.2d 588, 590-591 (CA10 1990). The fallacy in this is the assumption that the application of § 506(a) (and hence § 506(d)) can be undone if and when the estate ceases to "have an interest" in property in which it "had an interest" at the outset of the bankruptcy proceeding. The text does not read that way. Section 506 automatically operates upon all property in which the estate has an interest at the time the bankruptcy petition is filed.  Once § 506(a)'s grant of secured-creditor rights, and § 506(d)'s elimination of the right to "underwater" liens and liens securing unallowed claims have occurred, they cannot be undone by later abandonment of the property. Nothing in the statute expressly permits such an unraveling, and it would be absurd to imagine it. If, upon the collateral's abandonment, the claim bifurcation accomplished by § 506(a) were nullified, the status of the creditor's allowed claim-i.e., whether (and to what extent) it is "secured" or "unsecured" for purposes of the bankruptcy distribution-would be impossible to determine. Instead, the claim would have to be treated as either completely "secured" or completely "unsecured," neither of which disposition would accord with the Code's distribution principles. The former would deprive the secured claimant of a share in the distribution to general creditors altogether. See 11 U.S.C. § 726 (providing for distribution of property of the estate to unsecured claimants). The latter (treating the claim as completely unsecured) would permit the lienholder to share in the pro rata distribution to general creditors to the full amount of his allowed claim (rather than simply to the amount of § 506(a)-defined "unsecured claim") while reserving his in rem claim against the security. Respondents' variation on the Tenth Circuit's holding avoids these alternative absurdities only by embracing yet another textual irrationality-asserting that, even though the language that is the basis for the "abandonment" theory (the phrase "in which the estate has an interest") is contained in § 506(a), and only applies to § 506(d) through § 506(a), nonetheless only the effects of § 506(d) and not the effects of § 506(a) are undone by abandonment. This hardly deserves the name of a theory.
As I have said, the Court does not trouble to make or evaluate the foregoing arguments. Rather, in Part II of its opinion it merely describes (uncritically) "the contrasting positions of the respective parties and their amici " concerning the meaning of § 506(d), ante, at 416, and concludes, because the positions are contrasting, that there is "ambiguity in the text," ante, at 417. (This mode of analysis makes every litigated statute ambiguous.) Having thus established "ambiguity," the Court is able to summon down its deus ex machina: "the pre-Code rule that liens pass through bankruptcy unaffected"-which cannot be eliminated by an ambiguous provision, at least where the "legislative history" does not mention its demise. Ante, at 417, 418.
We have, of course, often consulted pre-Code behavior in the course of interpreting gaps in the express coverage of the Code, or genuinely ambiguous provisions. And we have often said in such cases that, absent a textual footing, we will not presume a departure from longstanding pre-Code practice. See, e.g., Midlantic Natl. Bank v. New Jersey Dept. of Environmental Protection, 474 U.S. 494, 501, 106 S.Ct. 755, 759-760, 88 L.Ed.2d 859 (1986); Kelly v. Robinson, 479 U.S. 36, 46-47, 107 S.Ct. 353, 359-360, 93 L.Ed.2d 216 (1986). But we have never held pre-Code practice to be determinative in the face of what we have here: contradictory statutory text. To the contrary, where "the statutory language plainly reveals Congress' intent" to alter pre-Code regimes, Pennsylvania Dept. of Public Welfare v. Davenport, supra, 495 U.S., at 563, 110 S.Ct., at ----, we have simply enforced the new Code according to its terms, without insisting upon "at least some discussion [of the change from prior law] in the legislative history," ante, at 419.
For an illustration of just how plainly today's opinion is at odds with our jurisprudence, one need only examine our most recent bankruptcy decision, Union Bank v. Wolas, 502 U.S. ----, 112 S.Ct. 527, --- L.Ed.2d ---- (1991). There also the parties took "contrasting positions" as to the meaning of the statutory text, but we did not shrink from finding, on the basis of our own analysis, that no ambiguity existed. There also it was urged upon us that the interpretation we adopted would overturn pre-Code practice with "no evidence in the legislative history that Congress intended to make" such a change, Wolas, supra, 502 U.S., at ----, 112 S.Ct., at 531. We found it unnecessary to "dispute the accuracy of [that] description of the legislative history . . . in order to reject [the] conclusion" that no change had been effected. "The fact," we said, "that Congress may not have foreseen all of the consequences of a statutory enactment is not a sufficient reason for refusing to give effect to its plain meaning." Id., --- U.S., at ---- - ----, 112 S.Ct., at 530, 531. And "the fact that Congress carefully reexamined and entirely rewrote the preference provision in 1978 supports the conclusion that the text of § 547(c)(2) as enacted reflects the deliberate choice of Congress." Id., --- U.S., at ----, 112 S.Ct., at 532. What was true of the preference provision in Wolas is also true of the secured claims provisions at issue in the present case: Congress's careful reexamination and entire rewriting of those provisions supports the conclusion that, regardless of whether pre-Code practice is retained or abandoned, the text means precisely what it says. Indeed, the rewriting here is so complete that, no matter how deeply one admires and venerates "pre-Code law," it is impossible to interpret § 506(d) in a manner that entirely preserves it-and the Court itself, for all its protestation of fealty, does not do so. No provision of the former Bankruptcy Act, nor any pre-Code doctrine, purported to invalidate-across the board-liens securing claims disallowed in bankruptcy, see 11 U.S.C. § 107 (1976 ed.); see also 4 Collier on Bankruptcy § 67 (14th ed. 1978), yet that is precisely what § 506(d), as interpreted by the Court today, accomplishes.
It is even more instructive to compare today's opinion with our decision a few years ago in United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989), which involved another subsection of § 506 itself. The issue was whether § 506(b) made post-petition interest available even to those oversecured creditors whose liens were nonconsensual. The Court of Appeals had held that it did not, because such a disposition would alter the pre-Code rule and there was no "legislative history" to support the change. We disagreed. The opinion for the Court began "where all such inquiries must begin: with the language of the statute itself." Id., at 241, 109 S.Ct., at 1030. We did not recite the contentions of the parties and declare "ambiguity," but entered into our own careful consideration of "[t]he natural reading of the [relevant] phrase," the "grammatical structure of the statute," and the "terminology used throughout the Code." Id., at 241 and 242, n. 5, 109 S.Ct., at 1030 and 1031, n. 5. Having found a "natural interpretation of the statutory language [that] does not conflict with any significant state or federal interest, nor with any other aspect of the Code," id., at 245, 109 S.Ct., at 1033, we deemed the pre-Code practice to be irrelevant. And whereas today's opinion announces the policy judgment that "[a]ny increase over the judicially determined valuation during bankruptcy rightly accrues to the benefit of the creditor," ante, at 417, in Ron Pair we were undeterred by the fact that our result was "arguably somewhat in tension with the desirability of paying all creditors as uniformly as practicable," 489 U.S., at 245-246, 109 S.Ct., at 1033. "Congress," we said, "expressly chose to create that alleged tension." Id., at 246, 109 S.Ct., at 1033. Almost point for point, today's opinion is the methodological antithesis of Ron Pair-and I have the greatest sympathy for the Courts of Appeals who must predict which manner of statutory construction we shall use for the next Bankruptcy Code case.
* * * * * *
The principal harm caused by today's decision is not the misinterpretation of § 506(d) of the Bankruptcy Code. The disposition that misinterpretation produces brings the Code closer to prior practice and is, as the Court irrelevantly observes, probably fairer from the standpoint of natural justice. (I say irrelevantly, because a bankruptcy law has little to do with natural justice.) The greater and more enduring damage of today's opinion consists in its destruction of predictability, in the Bankruptcy Code and elsewhere. By disregarding well-established and oft-repeated principles of statutory construction, it renders those principles less secure and the certainty they are designed to achieve less attainable. When a seemingly clear provision can be pronounced "ambiguous" sans textual and structural analysis, and when the assumption of uniform meaning is replaced by "one-subsection-at-a-time" interpretation, innumerable statutory texts become worth litigating. In the bankruptcy field alone, for example, unfortunate future litigants will have to pay the price for our expressed neutrality "as to whether the words 'allowed secured claim' have different meaning in other provisions of the Bankruptcy Code." Ante, at 417, n. 3. Having taken this case to resolve uncertainty regarding one provision, we end by spawning confusion regarding scores of others. I respectfully dissent.
^1 For example: "That is what was bargained for by the mortgagor and the mortgagee. . . . Any increase over the judicially determined valuation during bankruptcy rightly accrues to the benefit of the creditor. . . . [W]e see no reason why [the lienholder's] acquiescence in [the bankruptcy] proceeding should cause him to experience a forfeiture of the kind the debtor proposes. . . . [T]he benefit of an allowed unsecured claim] does not strike us as proper recompense for what petitioner proposes by way of the elimination of the remainder of the lien." Ante, at 778.
Apart from the fact that these policy judgments are inappropriate, it is not at all clear that evisceration of § 506(d) is even necessary to effectuate them. The feared "windfall" to the debtor may be prevented by 11 U.S.C. § 551, which preserves liens avoided under § 506(d) and other provisions of the Code "for the benefit of the estate," i.e., for the benefit of the general unsecured creditors. See Note, An Individual Debtor's Right to Avoid Liens Under Section 506(d) of the Bankruptcy Code, 12 Cardozo L.Rev. 263, 280-281 (1990). See also In re Ward, 42 B.R. 946, 952-953 (Bankr.Ct. MD Tenn.1984). And the creditor whose lien has been stripped may even prevail over the other unsecured creditors by reason of 11 U.S.C. § 363(k), which permits such an undersecured creditor to apply the entire amount of his allowed claim (secured and unsecured) against the purchase price of the collateral at the trustee's foreclosure sale. This appears to enable the lien-stripped creditor (at least in the context of a trustee-managed foreclosure sale) to use his "unsecured claim" to capture any post-evaluation appreciation in the collateral. See Carlson, Undersecured Claims Under Bankruptcy Code Sections 506(a) and 1111(b): Second Looks at Judicial Valuations of Collateral, 6 Bankr.Devs.J. 253, 272-279 (1989). I would leave these questions for resolution on remand.
^2 The Court's insistence that the positions put forward by respondents and the United States are one and the same, see ante, at 417, n. 3, is simply mistaken. The following excerpts from the Government's brief, among others, are compatible only with the theory (which is not respondents') that the phrase "lien secures a claim" in § 506(d) means "lien is adequate security for a claim":
"On its face, [§ 506(d) ] appears to take one set of circumstances-where 'a lien secures a claim'-and carve out of it a lesser and included set of circumstances-where that secured claim 'is not an allowed secured claim.' Liens in the carved-out set are void. . . .
"According to petitioner, what the provision means is that a lien securing an unsecured claim is void. But the provision is triggered only '[t]o the extent that a lien secures a claim,' and if a lien secures a claim the claim is not, at least in common parlance, unsecured. . . . [I]t is inconsistent to say-as petitioner urges-that the prime situation at which the provision is directed is one where, because the collateral is worth less than the amount of the claim, the lien in fact fails to secure the claim. Under petitioner's reading, a provision that applies '[t]o the extent that a lien secures a claim' actually applies only to the extent that the lien does not secure the claim." Brief for United States as Amicus Curiae 9 (emphasis in original) (footnote omitted).
It is of little consequence, however, whether the Government espoused this position or not. In either event, it is a possible interpretation (more plausible, I think, than the one the Court adopts) that merits consideration by those concerned with text.
^3 The election available to a secured creditor under § 1111(b)(2) to treat his undersecured claims as fully secured in a Chapter 11 reorganization notwithstanding § 506(a) does not affect this analysis, for an electing creditor is guaranteed under the reorganization plan only "property of a value, as of the effective date of the plan, that is not less than the value of such holder's interest in the estate's interest in the property that secures such claims." 11 U.S.C. § 1129(a)(7)(B). In other words, "the present value of such payments [to the § 1111(b)(2) elector] need only equal the value of the secured creditor's interest in its collateral." 5 Collier on Bankruptcy ¶ 1111.02, pp. 1111-25 1111-26, n. 23 (15th ed. 1990).
^4 The estate "has an interest," of course, even in its overencumbered property. See 11 U.S.C. § 541(d) (providing that property for which the debtor holds legal title alone is "property of the estate" to the extent of that legal title). See also § 541(a)(1) (defining the bankruptcy estate to include "all legal or equitable interests of the debtor in property as of the commencement of the [bankruptcy] case").