United States: Supreme Court Says Underwater Junior Liens Survive Bankruptcy

On March 30, we reported on two cases pending before the U.S. Supreme Court: Bank of America v. Caulkett1and Bank of America v. Toledo-Cardona2.  Each involved chapter 7 bankruptcy cases in which the debtors had no equity in their homes because the houses were worth less than the amount outstanding on the senior mortgage loans—that is, the second lien-lenders were "unsecured" or totally "underwater". 

In a chapter 7 case, an individual debtor is able to obtain a discharge of his or her debts, but the debtor's non-exempt assets are liquidated by a bankruptcy trustee, who then distributes the proceeds to creditors. In Dewsnup v. Timm3], the Supreme Court held that Bankruptcy Code § 506 does not permit an individual chapter 7 debtor to reduce (or "strip down") a first-lien mortgage loan to the value of the real property where the amount owed ($119,000) is greater than the property value ($39,000).  Caulkett and its companion case addressed whether the outcome should be different where the debtor seeks to void (or "strip off") a second lien mortgage that is wholly underwater.

On its decision announced on June 1, the Supreme Court found the question effectively controlled by its prior holding in Dewsnup.  Noting that the debtors had not asked it to overrule Dewsnup, the Court held by unanimous decision4 that a debtor in a chapter 7 bankruptcy case may not void second mortgage liens under Bankruptcy Code section 506(d) when the debt owed on a senior mortgage lien exceeds the current value of the collateral.  The Court rejected respondents' attempts to limit Dewsnup's interpretation to partially underwater mortgages, concluding that there was no principled way to distinguish those from wholly underwater mortgages within the terms of the Bankruptcy Code.  In Dewsnup, the Court defined an "allowed secured claim" under section 506(d) as "claim supported by a security interest in property, regardless of whether the value of that collateral would be sufficient to cover the claim".  Thus, section 506(d) voids underwater liens only where the underlying debt is invalid under applicable law.

Practical Implications

Caulkett is not a change in law.  In fact, each of the circuit courts addressing this issue other than the Eleventh Circuit had determined that, applying Dewsnup, section 506 does not permit individual debtors to void a completely underwater junior secured creditor's right to foreclose on the creditor's collateral.5   Time will tell what impact, if any, the Court's decision will have on the housing market, mortgage lending costs or availability.  In today's slowly recovering housing market, parties should consider the following practical considerations arising from the Caulkett decision.

  • Bankruptcy Fresh Start Limited. For underwater homeowners, the debtor's option for a fresh start just narrowed. While the homeowner will be discharged (relieved) from having to pay creditors holding subordinate liens, the subordinate lien remains in place against the property. Even though the homeowner has no personal liability for the home-equity loan or other second lien financing (in other words, the debt is not enforceable against the homeowner), the subordinate lender can seek to foreclose on the property to recover amounts owed to it. The subordinate lender may seek to extract payment from the homeowner in order to avoid a foreclosure post-bankruptcy even though a successful foreclosure of an underwater subordinate lien will bring it no economic value. Such consent may be conditioned on receiving some payment from the homeowner. Obtaining relief from underwater home equity and other second liens in a bankruptcy case will be available only in chapter 11, 12 or 13 cases, which is often more expensive and time-consuming than a chapter 7 case.
  • Junior Mortgagees Gain Leverage. Lenders holding first or senior mortgage liens may be reluctant to provide relief to homeowners who have underwater junior liens. As a result of Caulkett, consent of home equity or other second lien mortgagees will be required for loan modifications, deeds-in-lieu of foreclosure, short sales or other consensual workouts agreed to by the first-lien mortgagee and the debtor.
  • Cloud on Title. Because underwater junior liens are not discharged in chapter 7 bankruptcy cases, future sales of the property (and the ability to obtain new financing) may be chilled. Lenders and potential purchasers must engage in careful review of the real property title records to ensure that there are no liens on the property. Underwater homeowners may not be able to sell their property absent consent of the subordinate lienholder, and such consent may be conditioned on the homeowner making some payment to the subordinate lienholder. Query whether Caulkett will impact the emerging "rent to own" industry or other programs designed to allow the homeowner to remain in the home after foreclosure. Property acquired through a deed-in-lieu of foreclosure or other consensual workout will not have released subordinate liens of record. In order to ensure clean title, purchasers may require that such sales be conducted only through public foreclosure auctions, and will want to make sure that subordinate lenders are properly parties to and on notice of such foreclosure proceedings.
  • Friendly Foreclosure Sales. If the desire is to remove the cloud on title, query whether the homeowner and the senior mortgage lender would consider conducting under applicable state law (outside of bankruptcy) a "friendly foreclosure" to wipe out an underwater junior lien. A "friendly foreclosure" could entail a negotiated agreement between the senior lienholder and homeowner agreeing to the commencement of a procedure by which the senior lienholder will conduct a judicial foreclosure on consent of the homeowner, provide for the entry of a judgment of foreclosure, for the senior lienholder to conduct a foreclosure sale, and provide for a waiver of the homeowner's right of redemption. Any "friendly foreclosure" would have to be on notice to the subordinate lienholder, and the subordinate lienholder would have the ability to purchase the property at such foreclosure sale. Because courts carefully scrutinize pre-foreclosure negotiated agreements and disfavor waivers (whether before or after default) of borrower's rights to notice or redemption, careful review of applicable state and other law will be required to determine whether a "friendly foreclosure" is an option.
  • Commercial Mortgage Lending May be Impacted. While Caulkett and its companion case, Toledo-Cardona, specifically involved chapter 7 cases for individual debtors, because the Bankruptcy Code provisions interpreted in Dewsnup and Caulkett apply in cases filed under other chapters of the Code, the Court's decision may apply to bankruptcy cases involving corporate entities (partnerships, corporations, limited liability companies and other non-natural persons) with respect to real property subject to a subordinate lien that is retained by (i.e., abandoned to) the bankrupt corporate entity.


1 566 Fed. Appx. 879 (11th Cir. 2014).

2 556 Fed. Appx. 911 (11th Cir. 2014).

3 502 U.S. 410 (1992).

4 The decision was delivered by Justice Thomas and was joined in whole by five of the Justices; three of the justices joined in the opinion except as to a footnote, which noted that Dewsnup has been criticized since its inception.

5 See, e.g., Palomar v. First Am. Bank, 722 F.3d 992 (7th Cir. 2013); In re Talbert, 344 F.3d 555 (6th Cir. 2003); Ryan v. Homecomings Fin. Network, 253 F.3d 778 (4th Cir. 2001).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.