Emory Bankruptcy Developments Journal


In this article, the author maintains that avoidance of wholly unsecured liens ("strip off") in chapter 7 is permissible and desirable notwithstanding the Supreme Court's controversial 1992 decision in Dewsnup v. Timm, which refused to permit avoidance of the unsecured portion of a partially secured lien ("strip down"). The argument flows from a broader analysis of the proper characterization of secured claims in bankruptcy. Specifically, contrary to the state law ideation of "secured" that focuses on the identity of the claimant, the author urges that in bankruptcy the concept of "secured" should focus on that creditor's claim or claims as defined by the Bankruptcy Code. He argues not only that bankruptcy courts have the authority to develop a uniform federal rule in this area, but that to do so would limit Dewsnup to its narrowest possible construction, and perhaps provide the impetus for reexamination of a decision that is out-of-step with core bankruptcy policy and the Court's own bankruptcy jurisprudence.