1 For simplicity, the Rashes are referred to simply as

"Rash."

1 United States Court of Appeals,

Fifth Circuit.

No. 93-5396.

In the Matter of Elray RASH and Jean Rash, Debtors.

ASSOCIATES COMMERCIAL CORPORATION, Appellant,

v.

Elray RASH and Jean Rash, Appellees.

Sept. 13, 1994.

Appeals from the United States District Court Eastern District of

Texas.

Before REYNALDO G. GARZA, SMITH and PARKER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The Associates Commercial Corporation ("ACC") appeals the

district court's confir mation of a reorganization plan under

chapter 13 of the Bankruptcy Code (the "code"). Because the

district court erred as a matter of law in calculating the value of

ACC's secured claim under 11 U.S.C. § 506(a), we reverse.

I.

A.

O n March 30, 1989, Elray and Jean E. Rash 1 purchased a

commercial truck at retail value of $73,700 by entering into a

sales agreement and related documents ("loan documents") with Janoe

Truck Sales & Service, Inc., d/b/a Janoe Kenworth Trucks ("Janoe").

The truck served as collateral for the loan. Rash owns and

operates the truck as part of his freight hauling business. Janoe2

assigned the loan documents to ACC, which holds a valid lien on the

collateral.

Under the terms of the loan, Rash was obligated to pay to ACC

$1,610.41 per month for sixty months, maintain the collateral, and

keep it adequately insured. In February 1992, Rash and ACC agree

to reschedule his obligation upon his agreeme nt to pay $1,408.33

for thirty-six months.

B.

In March 1992, Rash filed a petition for bankruptcy under

chapter 13. Rash recognized ACC's superior lien on the collateral.

Pursuant to his chapter 13 plan, Rash proposed that ACC retain its

lien and be paid $607.79 per month for fifty-eight months,

beginn ing after confirmation, for a principal total of $28,500,

plus interest at nine percent. Rash represented in the plan that

the collateral would remain insured but that the proposed payment

"represent[ed] payment of the value of the Collateral in full with

i nterest over the life of the Plan," which was for five years.

Rash's plan made ACC a partially unsecured creditor that Rash could

treat as holding a partially unsecured claim. Rash's plan also set

forth that unsecured creditors "shall receive in pro-rata amounts

all amounts remaining after priority and secured debts are paid."

On May 1, 1992, ACC filed a motion for relief from stay,

alleging that Rash had no equity in the collateral. ACC

subsequently filed a proof of claim in the secured amount of

$41,171.01. Rash responded that the value of ACC's collateral was

only $28,500 and that the remainder of ACC's claim was unsecured.3

ACC challenged Rash's plan as inequitable because it did not pay

ACC what it could have received in a chapter 7 liqu idation and

infeasible because it did not conform to the requirem ents of

chapter 13.

At a hearing in bankruptcy court, ACC's expert testified that

the market value of the truck was $41,000. "Market value" was

defined as "what an individual, average individual off the street"

would pay for the truck, or the price that would be received from

a public auction sale. Rash's expert testified that market value

should be determined by the wholesale value of the truck, $31,875.

He applied the wholesale value because he said that the difference

between wholesale and retail value represents the margin between a

dea l er's costs of marketing, reconditioning, payment of sales

commissions, and a dealer's profit. Both experts agreed as to the

retail value of the truck; they just disagreed as to whether the

retail or wholesale value should be used.

The bankru ptcy court adopted the measurement proffered by

Rash's expert. In line with this value, Rash filed an amended

chapter 13 pl an promising to pay $31,875 in fifty-eight

installments plus nine percent interest, with the remaining value

of ACC's claim to be paid pro -rata as an unsecured claim. The

bankruptcy court confirmed this plan, 149 B.R. 430, and the

district court affirmed.

II.

Under § 1325(a)(5)(B) of the code, 11 U.S.C. § 1325(a)(5)(B),

a secured creditor must receive the present value of its allowed4

secured claim under a chapter 13 plan of reorganization. Unless

the creditor's present value is preserved, confirma tion cannot

occur over the creditor's objection. The allowed secured claim is

determined by 11 U.S.C. § 506(a), which provides, in pertinent

part:

An allowed claim of a creditor secured by a lien on property

in which the estate has an interest

... is a secured claim to

the extent of the value of such creditor's interest in the

estate's interest in such property

... an d is an unsecured

claim to the extent that the value of such creditor's interest

... 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....

We first look to the text of the statute, construing its terms

according to their plain meaning. Patterson v. Shumate, --- U.S.

----, ----, 112 S.C t. 2242, 2246, 119 L.Ed.2d 519 (1992). Each

term must be given effect so as to avoid rendering an part of the

statute inoperative. U nited States v. Nordic Village, Inc.,

-- -

U.S. ----, ----, 112 S.Ct. 1011, 1015, 117 L.Ed.2d 181 (1992);

Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 2331,

60 L.Ed.2d 931 (1979). If a term is ambiguous, it should be

construed consistently with other terms in the statute so as to

produce a symmetrical whole and avoid creat ing tension in the

statute. Federal Power Comm'n v. Panhandle E. Pipe Line Co., 337

U.S. 498, 514, 69 S.Ct. 1251, 1260, 93 L.Ed. 1499 (1949).

Cases construing § 506(a) have fo cused on two different

clauses whose relative emphases lead to differing results. S ee In

re Green, 151 B.R. 501, 502 (Bankr.D.Minn.1993). One line of cases

rests on the language of § 506(a)'s first sentence, which provides

that the creditor's claim is secured to the extent of the value of5

its interest in the estate's interest in such property. Under this

a pproach, the secured creditor is entitled to receive, in the

chapter 13 plan, the amount it could have obtained if the

collateral were foreclosed upon and sold by the creditor.

This "foreclosure approach" w as followed by the bankruptcy

and district courts in the current case and in In re Mitchell, 954

F.2d 557 (9th Cir.1992), cert. denied,

--- U.S. ----, 113 S.Ct.

303, 121 L.Ed.2d 226 (1992). But see Lomas Mortgage USA v. Wiese

(In re Wiese), 980 F.2d 1279, 1286 (9th Cir.1992), vacated on other

grounds,

--- U.S. ----, 113 S.Ct. 2925, 124 L.Ed.2d 676 (1993)

(suggesting that the decision in Mitchell contradicts the language

of § 506(a) and illogically "allow[s] the debtor to keep the home

but value[s] the secured portion based upon a hypothetical sale of

the residence"). Because the foreclosing creditor is not a dealer

in the property comprising the collateral, it could not resell the

collateral at retail prices. Thus, its interest is the wholesale

price it would receive by selling the property to a retailer.

Green, 151 B.R. at 504. Under this approach, the court will also

generally deduct, from the wholesale price, the costs that would be

incurred in executing the resale.

A second line of cases relies upon th e second sentence of §

506(a), which provides that the creditor's li en interest must be

valued in light o f the purpose of the valuation and the proposed

disposition or use of the collateral. "Where the debtor proposes

to retain and use the collateral, and the purpose of the valuation

is to determine the amount that an undersecured creditor will be6

paid on its secured claim under the debtor's plan, the value of the

creditor's lien is derived from the stream of payments that the

lien secures, rather than the right to foreclose, since no

liquidation of the collateral is contemplated." G reen, 151 B.R. at

504.

Under this "replacement model," the "value of the lien should

be based on the r etail value of the collateral since such is the

replacement value to the debtor; and the costs associated with

sale of the collateral should not be deducted since no sale is

contemplated." G reen, 151 B.R. at 504. S ee In re Coker, 973 F.2d

258, 260 (4th Cir.1992); Brown & Co. Sec. Corp. v. Balbus (In re

Balbus), 933 F.2d 246, 251-52 (4th Cir.1991). Proponents of the

"replacement cost" approach argue that it is the only one that

gives effect to the entire language of § 506(a), whereas the

foreclosure approach ignores the second sentence of the statute.

We agree that the replacement cost approach is the only one

that gives full effect to the language of § 506(a). Under that

su bsection, we must consider the "purpose of the valuation" and

"the proposed disposition or use" of the property by the debtor.

"If the first sentence of § 506(a) we re interpreted to mean that

the value must be fixed at th e amount which the creditor would

receive on foreclosure, then the last sentence of the statute which

provides that the value should be determined in light of the

purpose of the valuation and of the proposed disposition or use of

the property, would be surplusage." I n re Courtright, 57 B.R. 495,

497 (Bankr.D.Or.1986); s ee also In re Bergh, 141 B.R. 409, 4197

(Ba nkr.D.Minn.1992) (noting that the "key phrase in § 506(a) is

"[s]uch value shall be determ ined in light of the purpose of the

valuation and of the proposed disposition or use of such

property....' ").

Moreover, § 506(a) instr ucts us to value the creditor's

interest according to "the estate's interest" in the property. The

"estate's interest in the property" is the ownership and possession

of the vehicle by the debtor, see M itchell, 954 F.2d at 561

(Noonan, J., dissenting), and thus the creditor's interest is

derivatively defined by the value of the debtor's interest in the

property.

If the debtor retains the property as part of a

reorganization, the proper measurement of the estate's interest in

the property is the "going-concern" value of the collateral to the

debtor's reorganization. The value to the debtor of retaining and

using the property ca n best be measured by what he would have to

pay to purchase another truck. See id. (Noonan, J., dissenting).

Under § 506(a), the court must value the collateral in light of its

purpose and proposed use in the reorganization. Going concern, or

replacement, value accounts for the d ebtor's proposed use of the

property, whereas foreclosure value does not. "[W]hen a debtor

intends to continue use of creditor's collateral, the Debtors are

acknowledging the value of the collateral to be greater than if

liquidated. Therefore, creditor's secured claim is entitled to be

valued to the extent of its contribution to the entire estate

vis-a-vis "going concern value'...." I n re Penz, 102 B.R. 826, 8288

(Bankr.E.D.Okla.1989); s ee also In re Reynolds, 17 B.R. 489

(Bankr.N.D.Ga.1981).

The creditor has a security interest in an income stream

derived from the loan. Thus, the creditor's interest is the full

amount of its debt, limited only by the estate's interest in the

collateral. As the court wrote in Green:

It is true that the plain meaning of the first sentence of

section 506(a) requires a valuation of th e creditor's lien

interest in the collateral. However, the fact that a lien in

property gives the lienholder a right to repossess and sell

the collateral does not automatically mean that the value of

the lien is equal to the amount that the creditor would

receive upon disposition of the collateral in satisfaction of

its lien. It must be remembered that a lien is fundamentally

a security in terest which secures payment of an obligation.

To value such an interest in property based solely on the

amount that could be realized upon sale of the collateral

ignores the value a ssociated with the right to receive the

stream of payments that the lien secures.

Green, 151 B.R. at 505 (emphasis in original).

The stream of payments in which the creditor has a security

interest will be greater in nominal value than the val ue of the

collateral alone because it includes the opportunity cost to ACC of

being forced to continue to tie up money in a loan with Rash,

rather than being able to lend this money to someone else. The

loss to the c reditor is not just the inability to foreclose and

receive the value of the collateral, but includes the inability to

foreclose and then re-le nd the money to someone else. "[I]f he

creditor was not forced to lend to this debtor, then it could lend

those funds to a different borrower. This is the real cost of the

inability to foreclose." Todd J. Zywicki, Cramdown and the Code:

Calculating Cramdown Interest Rates Under the Bankruptcy Code, 199

T. M ARSHALL L.J. 241, 262 (1994). "[V]aluation based on a

hypothetical sale ignores the purpose of the valuation which is to

determine the amount an undersecured creditor will be paid for the

debtor's continued possession and use of the collat eral, not to

determine the amount such creditor would receive if it had to

repossess and sell the collateral." G reen, 151 B.R. at 505

(emphasis added).

This foregone loan would have been secured by collateral

valued according to its retail value. When Rash initially borrowed

the money to buy the truck, the loan amount w as for the retail

price of the truck, not merely the wholesale amount. Reducing the

security interest to its wholesale value would allow parties to use

bankru ptcy to alter their substantive rights as defined outside

bankruptcy. Indeed, a debtor could use bankruptcy to knock-down

the secured creditor's interest to wholesale value, then turn

around and resell the collateral at retail blue-book value and

pocket the difference. Wherever possible, we try to preserve the

terms of the parties' original bargain so that bankruptcy is not

used opportunis tically to renegotiate the terms of a voluntary

agreement or to generate a windfall for one party or the other.

See Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59

L.Ed.2d 136 (1979).

Awarding the secured creditor only the wholesale value of the

collateral would undercompensate the creditor in bankruptcy.

Allowing the debtor to decrease the value of its collateral by

filing bankruptcy would lead to inefficient self-protection10

measures by creditors, such as requiring debtors to put more cash

down at the time of purchase or charging a higher interest rate to

offset the risk that the debtor will file bankruptcy and strip down

the value of the cred itor's security interest. Unable to

distinguish between good and bad borrowers, creditors will "alter

their behavior towards debtors as a class. " Zywicki, s upra, at

263. This will actually h arm debtor s, for, as a result, "[t]he

a pparent pro-debtor effects of the bankruptcy rule will b e

eliminated by the increased rate charged to debtors as a class."

Id.

It has been suggested that reinstating the secured creditor's

interest to its full retail value would be counterproductive, as it

would offer the debtor no relief, thereby undermining the

rehabilitative purposes of chapter 13. Any benefit that this would

provide to debtor s, however, would be pyrrhic, as any advantage

gaine d in reorganization would be offset by increases in

downpayments and interest rates at the initial time of the loan.

Moreover, while reorganization of the debtor is an important

policy goal, this goal cannot be pursued by exterminating a secured

creditor's property interest. "Reorganization is not a Holy Grail

to be pursued at any length." United Sav. Ass'n v. Timbers of

Inwood Forest Assocs., Ltd. (In re Timbers of Inwood Forest

Assocs., Ltd.), 808 F.2d 36 3, 376-77 (5th Cir.1987) (en banc)

(Clark, C.J., concurring), aff'd, 484 U.S. 365, 108 S.Ct. 626, 98

L.Ed.2d 740 (1988). Secured creditors should not be forced to bear

the burden of the debtor's reorganization. B ut see United Sav.11

Ass'n v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 378-

79, 108 S.Ct. 626, 634, 98 L.Ed.2d 740 (1988) (noting that even if

secured creditors do not bear one kind of reorganization cost, they

may still bear others).

The replacement approach is consistent with the Supreme

Court's holding in Timbers of Inwood Forest, see Mitchell, 954 F.2d

at 562 (Noonan, J., dissenting). In construing § 362(d)(1), the

Court reviewed the similar language of § 506(a), conc luding that

"the creditor's "interest in property' [in § 50 6(a) ] obviously

means his security interest without taking account of his right to

immediate possession of the collateral on default." 484 U.S. at

372. Thus, the interest being protected by § 506(a) "is merely a

security interest, which is a right to have the collateral applied

in satisfaction of a debt, not a right to immediate possession of

the collateral." Green, 151 B.R. at 505.

Thus, retail value is the proper measurement for purposes of

determining an undersecured creditor's allowed amount of a secured

claim under § 506(a). Both wholesale valuation and techniques that

average wholesale and retail values, see, e.g., In re Carlan, 157

B.R. 324 (Bankr.S.D.Tex.1993), undercompensate the secured creditor

and provide an invalid windfall to the debtor.

Finally, it is argued that profit should be eliminated from

calculations of the value of the creditor's lien. S ee In re

Miller, 4 B.R. 392 (Bankr.S.D.Cal.1 980). This is incorrect, as

what is deemed "profit" is actually the opportunity cost of keeping

ACC's money tied up in Rash's loan and the normal return on12

cap ital, without which the loan will not be made. S ee Zywicki,

supra, at 261-62.

III.

The bankruptcy and district courts erred as a matter of law by

using who lesale instead of retail value to calculate the secured

portion of ACC's claim. Thus, we REVERSE the district court's

confirmation of the plan and REMA ND for recalculation of the

allowed amount of ACC's secured claim for purposes of the plan.