United States Court of Appeals,

Fifth Circuit.

No. 92-9025

Summary Calendar.

In the Matter of LINDSEY, STEPHENSON & LINDSEY, Debtor.

LINDSEY, STEPHENSON & LINDSEY, d/b/a Great Plains Land & Cattle, Appellant,

v.

FEDERAL DEPOSIT INSURANCE CORPORATION, Appellee.

July 21, 1993.

Appeal from the United States District Court for the Northern District of Texas.

Before KING, DAVIS and WIENER, Circuit Judges.

PER CURIAM:

Lindsey, Stephenson & Lindsey (Lindsey), a partnership, filed a petition in bankruptcy court

seeking protection under Chapter 12 of the Bankruptcy Code as a family farmer. Contending that

Lindsey did not meet Chapter 12's eligibilit y requirements, the Federal Deposit Insurance Corporati on

(FDIC) moved for relief from the automatic stay against property of the estate and for dismissal of

the case. The bankruptcy court grant ed FDIC's motions. Lindsey appealed to the district court,

which affirmed. Lindsey now appeals the district court's judgment to this court. We affirm.

I. Factual and Procedural Background

Since 1982 Lindsey has been a family partnership whose principal business consists of grain

farm ing and leasing. On September 16, 1985, Lindsey's partners executed a nonrecourse note to

Panhandle Bank & Trust Company for the principal amount of $1,069,612. 17. As with any

nonrecourse obligation, the note limited possible remedies:

The undersigned shall not be personally liable for the payment

... it being understood that the

payee shall look only to the collateral as and to the extent provided by those certain Deeds

of Trust and Security Agreements entered into by the undersigned and PANHANDLE BANK

& TRUST COMPANY....

The collateral on

t he note included partnership property located in Hutchinson, Randall and Deaf

Smith Counties, Texas. When Panhandle failed in December, 1986, FDIC was appointed as its1 FDIC also argued that more than twenty percent of Lindsey's obligations beyond the note in

question arose from non-farming operations. Because both the bankruptcy court and the district

court held that Lindsey's aggregate debt included the FDIC note, neither addressed the issue of

whether the remaining debt (taxes amounting to substantially less than $1,500,000) derived from

non-farming operations. In view of our discussion here, we too find no need for further

examination of the issue. receiver and subsequently purchased the note in its corporate capacity.

In February, 1988, Lindsey made its last payment on the note. FDIC commenced a judicial

foreclosure action in September, 1990. Three months later Lindsey filed for Chapter 12 protection.

Its creditors at the time included only FDIC and taxin g ent it ies. This appeal focuses entirely on

Lindsey's obligation to FDIC.

In bankruptcy court, FDIC contended that Lindsey does not qualify for Chapter 12 protecti on.

Under 11 U.S.C. § 101(18)(B)(ii), in order to qualify for Chapter 12 protecti on, a partnership must

have no more than $1,500,000 of aggregate debt. Moreover, at least eighty percent of the debt must

arise from farming ope rat ions. 11 U.S.C. § 101(18)(B)(ii). At trial the parties stipulated that the

remaining balance on the FDIC note exceeded $1,500,000. The parties also stipulated that more than

twenty percent of the balance due on the note arose from nonfarming operations. The proceedings

then focused on whether a nonrecourse note should be included in the calculation of aggregate debt. 1

The bankruptcy court held that Lindsey's total debt did include the F DIC note and accordi ngl y

granted relief from the stay and dismissed the case. Lindsey appealed to the district court, which

affirmed. Lindsey now appeals the district court's decision to this court.

II. Discussion

Lindsey contends that principles of statutory interpretation co mpel the conclusion that

nonrecourse obligations should b e excluded from the calculation of the aggregate debt of parties

seeking Chapter 12 protecti on. The argument hinges on the Bankruptcy Code's definition of "debt"

as "liabilit y on a claim." 11 U.S.C. § 101(12). Because the FDIC note stipulates no "personal

liabilit y," Lindsey argues that there is no "liabilit y on [th e] claim" and therefore no "debt." If the

FDIC note does not qualify as "debt" under the Bankruptcy Code, then it should not be calculated

in Lindsey's aggregate debt. Lindsey would then qualify for Chapter 12 protection, as long as at leasteighty percent of its remaining debt arose from farming operations.

This appeal raises a question of law. The parties have stipulated the amount of the note and

the percentage arising from farm operations. We must determine only the legal issue o f whether

nonrecourse notes qualify as "debt" under the Bankruptcy Code. We accordingly review the case d e

novo. In re Missionary Baptist Foundation of America, 712 F.2d 206, 209 (5th Cir.1983).

A. The FDIC note as a "claim" under the Bankruptcy Code

It is undeniable, as Lindsey "readily agrees," that the FDIC note constitutes a "claim" for the

purposes of the Bankruptcy Code. Under the Code, "claim" means:

(A) right to payment, whether or not such right is reduced to judgment, liquidated,

unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,

secured, or unsecured; or

(B) right to an equitable remedy for breach of performance if such breach gives rise

to a right of payment, whether or not such right to an equit able remedy is reduced to

j udgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or

unsecured.

11 U.S.C. § 101(5). Nonrecourse notes clearly fall within this definition. At the very least, a

creditor's right to act again st co llat eral is a "right to an equitable remedy" for a debtor's breach of

obligation. Moreover, the Bankruptcy Code explicitly incorporates nonrecourse loans as "claims."

It provides that a "claim against the debtor" includes a "claim against property of th e debtor." 11

U.S.C. § 102(2). The legislative history of the Code emphasizes that bankruptcy claims include

nonrecourse loans:

This paragraph [§ 102 ( 2) ] is intended to cover nonrecourse loan agreements where the

creditor's only rights are against property of the debtor, and not against the debtor personally.

Thus, such an agreement would give rise to a claim that would be treated as a claim against

the debtor personally, for the purposes of the bankruptcy code.

H.R.Rep. No. 595, 95th Cong., 1st Sess. 315-16 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 27-

28 (1978). As established by the above language, the FDIC note patently constitutes a "claim" under

the Code.

Recent Supreme Court decisions support the interpretation of nonrecourse loans as "claims."

In Pennsylvania Dept. of Public Welfare v. Davenport, 495 U.S. 552, 110 S.Ct. 2126, 109 L.Ed.2d

588 (1990), the Court concluded that Congress intended to adopt the broadest possible definition ofthe term "claim." I d. at 558, 110 S.Ct. at 2130. More specifically, t he Court has held that a

mortgage interest, as a kind of nonrecourse loan, constitutes a "claim" fo r bankruptcy purposes.

Johnson v. Home State Bank,

--- U.S.

----, ----, 111 S.Ct. 2150, 2155, 115 L.Ed.2d 66 (1991)

(emphasis added). We therefore conclude that the FDIC nonrecourse note undeniably qualifies as

a "claim" under the Bankruptcy Code.

B. The FDIC note as a "debt" under the Bankruptcy Code

Lindsey argues that although the FDIC n o te is a "claim," it is not a "debt," as "claim" and

"debt" are distinguishable under the Bankruptcy Code. To support its assertion, Lindsey first points

to the Code's definition of "debt" as "liabilit y on a claim." 11 U.S.C. § 101(12). It then contends that

because nonrecourse claims stipulate no personal liabilit y, they do not qualify as "debt." To support

its conclusion, Lindsey relies heavily on In re Lands, 85 B.R. 83 (Bankr.E.D.Ark.1988), in which the

court excluded from its calculation of aggregate debt a nonrecourse note which the parties seeking

Chapter 12 relief had not themselves executed, but which nonetheless encumbered their land.

We disagree with the argument that, by definition, nonrecourse notes do not constitute "debt."

The Lands case is not apposite for two reasons. First, the parties there were not the makers of the

nonrecourse note. In this case, by contrast, Lindsey

executed the FDIC not e. Moreover, L ands

predates two Supreme Court d ecisio ns which interpret "claim" and "debt" as coextensive. The

Supreme Court has determined that under the plain language doctrine, there is no distinction between

"debt" and "claim" for the purpose of the Bankruptcy Code:

Our construction of the term "debt" is guided by the fundamental canon that statutory

interpretation begins with the language of the statute itself.... [T]he Bankruptcy Code defines

"debt" as a "liability on a claim." This definition reveals Congress' intent that the meanings

of "debt" and "claim" be coextensive.

Davenport, 495 U.S. at 557-58, 110 S.Ct. at 2130 (citation omitted); s ee also Johnson,

--- U.S. at

---- n. 5, 111 S.Ct. at 2154 n. 5.

The legislative history of the Code further weakens Lindsey's contention that "debt " and

"claim" are distinguishable: "The terms "debt' and "claim' are coextensive: a creditor has a "claim'

against the debtor; the debtor owes a "debt' to the credi tor." H.R.Rep. No. 595, 95th Cong., 1st

Sess. 310 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 23 (1978). Because FDIC undeniably hasa "claim" against Lindsey, as established above, the FDIC note constitutes part of Lindsey's "debt."

We agree with both the bankruptcy court and the district court that the note should be included in

Lindsey's aggregate debt.

Lindsey attem

pts to distinguish Davenport and J ohnson on the grounds that neither

specifically applies to Chapter 12 eligibilit y. However, the Code defines "claim" and "debt" for the

purposes of the entire title, not individual sections. Chapter 12 itself does not redefine either term

for the sake of its eligibilit y requirements. We acco rdingly reject Lindsey's argument. Moreover,

even if it appeared that in some circumstances "claim" could have a broader meaning than "debt" for

the purposes of the Bankruptcy Code, we would not base the distinction purel y on

recourse/nonrecourse grounds. The Code defines "debt" as "liability on a claim," no t " personal "

liabilit y on a claim. 11 U.S.C. § 101(12). "Personal liability" is a subcategory of "liability." Although

a nonrecourse note stipulates no personal liabilit y, it does impose a legal obligation. If the maker of

the note fails to meet that obligation, the note holder has a remedy in the form of action against the

collateral specified for the loan. Despite the fact that the remedy is limited, assuming the note is valid,

it is legally enforceable. Even under this more liberal reading of Lindsey's arguments, then, we

conclude that the FDIC note composes part of the partnership's aggregate debt and disqualifies it

from Chapter 12 relief.

III. Conclusion

For the foregoing reasons we AFFIRM the judgment of the district court.