morning or morning for morning please the court will count or counsel i represent my name is michael brigham and i represent a minnesota housing finance agency who like to reserve three minutes of time for rebuttal in recognition of the neighborhoods through long term below market fixed interest rate loans and such loans at issue in this case the apple lisa obtained a loan for thirty four thousand dollars in two thousand and five and in two thousand and ten after housing objects to this in its impermissible under section thirteen twenty two b two of the bankruptcy code thirteen twenty two the bankruptcy code provides a plan in modify the rights of holders of secure claims other than a claim secured only by security interest in real property that is the debtors principal residence or of holders of unsecured claims or leave unaffected the rights of holders of any class of claims the court's majority of courts including the district court which have interpreted clause thirteen twenty two to the term claim is defined term under the bankruptcy code under section one five one zero one five of the bankruptcy code the claim is a right to payment whether or not such right is reduced to judgment liquidated on the credit fixed contingent maturity a mature disputed undisputed legal equitable secured or unsecured a claim is agnostic as to the security whether it's secured and secured by definition of five or six thirteen point two b structure of a statute which discusses holders of secured claims and holders of unsecured one of the most under cited passages of noblemen occurs right before the court's discussion of section five zero six  and in that section which section are you in part which part of the opinions i am in new york two of the opinion which paragraph i am in the third paragraph had no three this claim secured by a lien on petitioners so notwithstanding the parties identified specifically in thirteen twenty two holders of secure claims in holders of unsecured claims noble man recognizes the holder of a third category a coin holder of a claim secured by no woman further then goes on to recognize the code definition of claim as broad meaning both secured and unsecured  goes on to identify that a claim secured by is not defined by terms of five or six does not mean the same thing as secured claim this is this is one of the passages that the  claim that we are we are only a holder of an unsecured claim no woman by its very tax gives us the third option in that we are the holder of the claim and this interpretation indorsed by nor woman is more consistent with remaining elements of textual interpretation that you would engage in the legislative history which aim to broadly protect mortgagees from the modification processes of chapter thirteen as well as other principles that the supreme court has endorsed in interpretating lean stripping in valuation provisions why do you think the second clause of thirteen twenty two b two is not a subset of the first clause a lien it says petitioners were correct in looking to section five zero six a for judicial valuation of collateral to determine the status of the bank's secured claim it was permissible for petitioners to seek a valuation proposing their chapter thirteen plan retains twenty three thousand five hundred value the portion the banks claim that exceeds twenty three five hundred is an unsecured claim component and then he goes on to refer after acknowledging and walking through that premise by premise the argument that the petitioners noble presented the court the court goes on to say however that determination the determination under five or six a does not necessarily mean the rights the bank enjoys as a mortgage which are protected by section thirteen twenty two b scope of the rights the creditor had in that case and the issue going forward past no woman has been well how does how do courts then in turn limit other mortgages who are who are holders of claim secured by who have that lays out a condition precedent to defining the protections of section thirteen twenty two to b it's also consistent with the legislative history which is going through liens going forward be defined by valid collateral however it is clear that the home mortgage industry inserted successfully lobbied for protection as part of that process and the legislative history acknowledges that protection broadly as it does in no it in knowledge is that a claim secured by a mortgage and otherwise qualified mortgage shall be treated under section thirteen twenty two b five which is the certain principles that interpreter principles that we follow for instance bankruptcy code provision should not be right in isolation from one another they should not be right in isolation from pre code practices as a general principle valid means past the bankruptcy on  and congress must not have been intended to not have intended to legislate contrary to this general principle without at least some explanation of such intent in the legislative history the courts have looked at taken like the district court here and argue that while the legislative history can be right in both ways and therefore it's an adverse inference against the creditor that's that's reversed it should be work in the other direction you agree that  every circuit that's looked at this issue has held contrary to your argument the seven circuits which have looked at this issue have ruled contrary subject to the one qualification that the eleventh circuit had two cases going on at the same time and one ruled in favor of the apple as argument one signify that it would have ruled differently but out it would rule in favor out of deference to the first decision  different and i read and least somewhere it was perhaps the happily as noted or read it somewhere else that the supreme court has had an opportunity to correct mr tyson will hear from you please this honorable court this is not a complicated case in alice's comes down to two statute one sentence each and one supreme court case rights of the holder of a secured claim in turn to section five zero six but the claimant there was secured albeit partially secured minnesota housing finance agency is arguing that no woman does not require a five o six analysis as a condition precedent secured it can be unsecured or it can be both a nobleman it was both and that's the particular fact pattern in that case which is why the supreme court did not feel obligated to apply the so called rule of last antecedent nobleman states the more reasonable interpretation is to read a claim secured only by a homestead lien as referring to the lien holders entire claim including both that secured and unsecured components this would be impossible to cram down without modifying the current mortgages contractual rights as to interest rates monthly payment terms cetera in nobleman the debtors could not modify the contract terms of the unsecured component without also modifying the section thirteen twenty two b to the chase last supporting lien stripping goes back almost fifteen years palance arguments are not novel they've been tried unsuccessfully for fifteen years and there's no reason to now create a split and well settled authority congress certainly could've rectify the situation as it has been going on across the country and even here in minnesota for a decade well minnesota course there were similar cases and with the economy it got bigger here in minnesota in the last five years or so but there's been a lot of cases in the pipeline that have gone through and now there's a new rule that's been promulgated in minnesota as well the minnesota housing finance agency took a third mortgage does that really make them secured the engage in risky lending and it's still subject to the title level of the united states coat does taking a second or third lien in a car really give a lender a secured position security there is a loser it's there designed to give the collateral owner the fear that if they don't make the payments are going to lose the collateral when in fact the lender has no intention of pursuing the collateral that's a common sense interpretation it's a literal interpretation before you even look at section five zero six and five zero six is also consistent with common sense now granted if the property appreciates or the first lien is paid down then there becomes value in security and in this case that may happen many years down the road but we can't determine what may happen in the future because valuation is based on the petition date my clients are not getting any sort of a windfall they're getting a one hundred forty thousand dollars house that is subject to a one hundred fifty four thousand dollars first mortgage and the appellant's do retain their contingent lien rights for the duration of the lien plan because my clients do need to continue and make  their plan and not get dismissed or converted in order to enjoy the full benefits of the lien strip now sometimes when there's only one strip and under secured creditors such as this can actually get one hundred percent if the debtor has sufficient cash flow so it becomes a function of what the debtor can afford to pay in this case it just so happens that the third mortgagee is being paid a two percent dividend consistent with all other unsecured creditors in light of the debtors low income permitting lien stripping accomplishes a noble goal of keeping people in their house because without it these homeowners like many others would likely just be another foreclosure in chapter seven statistic now understand the competing goal of encouraging the flow of capital into the home prove market of the second mortgages that we're seeing were taken out when people were using their houses as piggy banks and if junior mortgagee is partially security even to the extent of a dollar regardless of why the people took the money out of their house whether  or for a fix up or whatever then that goal of encouraging the flow of money into the homeownership market is accomplished because where there's partial security people don't have a remedy in chapter thirteen but where it turns out that the lender took risks and it's risky lending and there's no equity to support that and chapter thirteen gives these types of remedy and permits them to keep their house in conclusion unless there's any other questions i would urge this court to affirm judge mark armour's decision and follow all of the other circuit court cases on this matter ok very well thank you for your argument mr tyson  the day of the final payment the plan may modify claim under section thirteen twenty five a five there's two significant points to that first of all textually section thirteen twenty two c two defined standing by the person with the cli by the party with a claim secured only by security interest in the real property it goes to the claim secured language it doesn't talk about the holder of a secured claim and it therefore conforms with our point with our argument that standing under thirteen wanting to be to alter merely originates from the holder of a claim not the holder of a secure claim secondly thirteen twenty two see to an act of right after no woman and acted when there were no circuit value for restricting thirteen twenty two congress opted to go with the ration and to keep those short term or near maturity long out of the entire modification why do you say that the addition of the claim secure language in c to necessarily means that what you call standing is available enderby to why couldn't congress have used a different  marker and see to that it used in b to i think it use the same marker because that's the starting point for assessing who qualifies for protection under b to a party who is the holder of a claim secured by its repeating that language because that