Bank of America, N. A. v. Caulkett

Bank of America, N. A. v. Caulkett

Argued March 24, 2015
Decided June 1, 2015
Full case name Bank of America, N. A., Petitioner v. David B. Caulkett
Docket nos. 13-1421
Citations

575 U.S. ___ (more)

135 S. Ct. 1995
Related cases Bank of America, N. A. v. Toledo-Cardona
Argument Oral argument
Opinion announcement Opinion announcement
Holding
Section 506(d) of the Bankruptcy Code does not allow a Chapter 7 debtor to void a junior mortgage on the debtor's property when the amount of the debt secured by the senior mortgage on that property exceeds the property's current market value.
Court membership
Chief Justice
John G. Roberts
Case opinions
Majority Thomas, joined by unanimous (except as to the "dagger" footnote, in which Kennedy, Breyer, and Sotomayor did not join)
Laws applied
11 U.S.C. § 506

Bank of America, N. A. v. Caulkett, 135 S. Ct. 1995 (2015), is a bankruptcy law case decided by the Supreme Court of the United States on June 1, 2015. In Caulkett, the Court held that 11 U.S.C. § 506(d) does not permit a Chapter 7 debtor to void a junior mortgage on the debtor's property[lower-roman 1] when the amount of the debt secured by the senior mortgage on that property exceeds the property's current market value.[1][2]

Background

"Allowed Secured Claims" in Bankruptcy

Statutory Provisions

Section 506(d) of the Bankruptcy Code provides, as a general rule, "[t]o the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void."[3] As used in the Bankruptcy Code, the term "claim" includes any "right to payment," and the term "lien" means a "charge against or interest in property to secure payment of a debt or performance of an obligation."[4] A claim is "allowed" if proof of the claim is filed under 11 U.S.C. § 501, and the claim is not objected to by a party in interest.[5]

As to what constitutes a "secured" claim, § 506(a) provides the following: Where a creditor's allowed claim is "secured by a lien on property in which the [bankruptcy] estate has an interest," that allowed claim "is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property ... and is an unsecured claim to the extent that the value of such creditor’s interest ... is less than the amount of such allowed claim."[6] In § 506(a), a creditor-lienor's "interest" in the estate's interest in certain collateral property means that creditor's lien on that property.[7] As a functional matter, the value of a creditor-lienor's lien generally depends on four factors:

  1. the "purpose of the valuation and ... the proposed disposition or use of [the collateral] property."[8][lower-roman 2]
  2. the value of the collateral property (and the estate's interest therein)
  3. the amount of the creditor-lienor's allowed claim
  4. the priority of the creditor-lienor's lien in relation to other interests in the collateral property.[lower-roman 3][9]

Section 506(a) thus distinguishes between "secured claims" and "unsecured" claims based on the numeric relation between (A) the value of a creditor-lienor's interest in the estate's interest in the collateral property; and (B) the amount of that creditor-lienor's allowed claim.[10] In common bankruptcy parlance, this same numeric relation is used to denominate a creditor-lienor's allowed claim as "oversecured," "fully secured," or "undersecured."[11] In a given case, the particular denomination used depends on the particular nature of that numeric relation.[12]

Oversecured Claim
A creditor-lienor's allowed claim is "oversecured" to the extent that the value of that creditor's interest in the estate's interest in the collateral property exceeds the amount of that creditor's allowed claim.[13]
Fully Secured Claim
A creditor-lienor's allowed claim is "fully secured" where the value of that creditor's interest in the estate's interest in the collateral property equals the amount of that creditor's allowed claim.[13]
Undersecured Claim
A creditor-lienor's allowed claim is "undersecured" to the extent that the value of that creditor's interest in the estate's interest in the collateral property is less than the amount of that creditor's allowed claim, but greater than zero.[13]

Dewsnup v. Timm

Dewsnup v. Timm, 502 U.S. 410 (1992), presented the Supreme Court with its first occasion to interpret 11 U.S.C. § 506(d).[14] Specifically, Dewsnup presented the question whether § 506(d) allows a Chapter 7 debtor to avoid an undersecured creditor's lien on the debtor's realty to the extent that the amount of the claim secured by that lien exceeds the collateral realty's fair market value.[15] In Dewsnup, the Chapter 7 debtor's $120,000 debt to a creditor was secured by lien on certain of the debtor's realty, the fair market value of which was $39,000.[16] The debtor, invoking § 506(d), sought to void that lien to the extent that the creditor-lienor's $120,000 claim exceeded the collateral realty's $39,000 fair market value, thereby "stripping down" the creditor's lien to the value of the collateral realty.[17]

The Dewsnup Court held that § 506(d) does not permit a Chapter 7 debtor to "strip down" an undersecured creditor's lien on the debtor's realty to the fair market value of the collateral realty.[18] The Court concluded that the phrase "allowed secured claim" in § 506(d) meant an "allowed claim" of a creditor secured by a lien; that is, the phrase "allowed secured claim" did not have the same meaning in § 506(d) as in § 506(a)(1).[19][lower-roman 4] In so concluding, the Court acknowledged the apparent logical infirmity in its construction of § 506(d), but observed that it was not "writing on a clean slate."[20] As support for that proposition, the Court cited "the pre-Code rule that liens pass through bankruptcy unaffected."[21][lower-roman 5] Because the Court found "ambiguity" in the text of § 506(d), the Court was "not convinced that Congress intended to depart from" that rule.[22][lower-roman 6] Thus, the Court's conclusion: the phrase "allowed secured claim" in § 506(d) means an "allowed claim" of a creditor secured by a lien.

The Court's decision in Dewsnup was poorly received and has been subject to extensive criticism "from its inception."[23] For example, Justice Scalia's dissent in Dewsnup castigated the majority for "disregarding well-established and oft-repeated principles of statutory construction" and engaging in "'one-subsection-at-a-time' interpretation."[24] And in Bank of America National Trust and Savings Association v. 203 North LaSalle Street Partnership, 526 U.S. 434 (1999), Justice Thomas criticized Dewsnup for "enshroud[ing] both the Courts of Appeals ... and Bankruptcy Courts" in "methodological confusion."[25] However, "[r]ight or wrong, the Dewsnuppian departure from the statute's plain language is the law."[26]

Caulkett: Facts; Proceedings Below; Question Presented

Facts

The debtor, David B. Caulkett, had two mortgage liens on his house in Melbourne, Florida; Bank of America held the junior mortgage lien.[1] In 2013, Caulkett filed a bankruptcy petition under Chapter 7 in the U.S. Bankruptcy Court for the Middle District of Florida; at that time, the amount of the senior mortgage debt was greater than the fair market value of Caulkett's house.[27]

Proceedings Below

After filing in Chapter 7, Caulkett moved to void Bank of America's junior mortgage lien under § 506(d).[1] The Bankruptcy Court granted Caulkett's motion, and Bank of America appealed. Both the District Court and the Eleventh Circuit affirmed the Bankruptcy Court's order.[1] Thereafter, Bank of America filed a petition for a writ of certiorari in the Supreme Court, which the Court granted on November 17, 2014.[28]

Question Presented

Caulkett presented the question whether a Chapter 7 debtor may void a junior mortgage on the debtor's property under § 506(d) when the amount of the debt secured by the senior mortgage on that property exceeds the property's current value.[29]

Opinion of the Court

In Caulkett, the Court unanimously held that § 506(d) does not allow a Chapter 7 debtor to void a junior mortgage on the debtor's property when the amount of the debt secured by the senior mortgage on that property exceeds the property's current market value.[1][30] The Court based this holding on its prior decision in Dewsnup, reasoning as follows:

Although the Court expressly acknowledged the logical infirmity in Dewsnup's reasoning, it declined to overrule Dewsnup; noting that Caulkett had not asked the Court to do so.[32] Having declined to overrule Dewsnup, the Court concluded that Dewsnup dictated only one result: Section 506(d) does not allow a Chapter 7 debtor to void a junior mortgage on the debtor's property when the amount of the debt secured by the senior mortgage on that property exceeds the property's current market value.[33]

Commentary and analysis

Commentators on the Caulkett decision have at turns expressed bewilderment that the Caulkett Court declined to overrule Dewsnup and wariness as to heralding the long-term reign of Dewsnup and Caulkett.[34] For example, one commentator has described it as "strange" that the Caulkett Court "went out of [its] way to criticize Dewsnup", yet declined to take the further step of overruling it.[35] And another has remarked, more generally, that "Caulkett has kept spectators baffled as to why it did not overrule Dewsnup".[36] At the same time, in light of the Caulkett Court’s criticism of Dewsnup, other commentators have also questioned the long-term stability of Dewsnup’s reign and thus—by extension—the future of Caulkett itself.[37] Yet for the time being, Dewsnup and Caulkett are the law.

Notes and References

All citations herein are written in Bluebook style.

Notes

  1. ↑ Here, "the debtor's property" is a non-technical usage; to be technically precise, "the debtor's property" should be replaced with "the bankruptcy estate's property." See 11 U.S.C. § 541(a)(1). In this article, insofar as "the debtor's property" conveys the same practical import as "the bankruptcy estate's property," the former is used in the interest of general readability.
  2. ↑ Courts have developed several different valuation standards, e.g., "fair market value", or "going concern value." The purpose of a particular valuation will determine the particular valuation standard used.
  3. ↑ “Ordinarily, a prior lien gives a prior legal right that is entitled to prior satisfaction out of the subject it binds[.]” 51 Am. Jur. 2d Liens § 70 (2016).
  4. ↑ The Dewsnup Court's interpretation of § 506(d) in this manner has provoked extensive, often scathing criticism. See, e.g., Dewsnup, 502 U.S. at 435 (Scalia, J., dissenting) (castigating the Dewsnup majority for "disregarding well-established and oft-repeated principles of statutory construction."); Lawrence Ponoroff & F. Stephen Knippenberg, The Immovable Object Versus the Irresistible Force: Rethinking the Relationship Between Secured Credit and Bankruptcy Policy, 95 Mich. L.Rev. 2234 (1997) ("The Immovable Object"); Barry E. Adler, Creditor Rights After Johnson and Dewsnup, 10 Bankr.Dev. J. 1, 10-12 (1993) ("Creditor Rights") (remarking that Court's decision in Dewsnup "torture[s] the English language"); Mary Josephine Newborn, Undersecured Creditors in Bankruptcy: Dewsnup, Nobelman, and the Decline of Priority, 25 Ariz. St. L.J. 547 (1993) ("Decline of Priority"); Howard, Dewsnupping, passim.
  5. ↑ Various commentators have questioned the soundness of the Court's statements with respect to "the pre-Code rule that liens pass through bankruptcy unaffected." Dewsnup, 502 U.S. at 417. See, e.g., Howard, Dewsnupping, at 526. Howard writes:
    The statement that "[a]part from reorganization proceedings ... no provision of the pre-Code statute permitted involuntary reduction of the amount of a creditor's lien for any reason other than payment on the debt" … reveals the Court's ignorance of the history of bankruptcy's treatment of liens. […] [I]t is also inaccurate to baldly assert that liens pass through bankruptcy unaffected. A more accurate statement is that liens pass through bankruptcy unaffected only if none of bankruptcy's powers to affect liens have been brought to bear.
    Id. Cf. Matter of Penrod, 50 F.3d 459, 463 (7th Cir. 1995) ("[Liens pass through bankruptcy unaffected]—unless they are brought into the bankruptcy proceeding and dealt with there.").
  6. ↑ Various commentators have challenged the soundness of the Dewsnup Court's "congressional intent" justification regarding its construction of § 506(d). See, e.g., Carlson, Bifurcation of Undersecured Claims, at 17-18 ("[T]he [Bankruptcy] Code indeed was intended to 'suffer a sea-change/Into something rich and strange.'" (quoting William Shakespeare, The Tempest, act 1, sc. 2, lines 401-02 (Riverside ed., Houghton Mifflin Co. 1974))); Newborn, Decline of Priority, at 581. Newborn writes:
    Essentially, the problems with the Dewsnup Court's analysis of history stems from the Court's failure to appreciate the Code's intended shift on the nature of security in bankruptcy. […] In drafting the Code, Congress made a choice to move bankruptcy toward a priority notion of security and away from an in rem notion. […] Secured creditors had a claim only on particular assets to the extent of the value of the property. Beyond this claim, secured creditors possessed only a right to be paid ahead of unsecured creditors. Id.

References

  1. 1 2 3 4 5 Caulkett, 135 S. Ct. at 1998.
  2. ↑ See also Raff Ferraioli, Bank of America, N.A. v. Caulkett: Dewsnup Lives, 24 No. 6 J. Bankr. L. & Prac. NL Art. 4 (Dec. 2015) ("Dewsnup Lives"); Bruce A. Markell, Loser’s Lament: Caulkett and ASARCO, 35 No. 8 Bankr. L. Letter NL 1 (Aug. 2015) ("Loser's Lament").
  3. ↑ 11 U.S.C. § 506(d) (emphasis added). Although § 506(d) provides two exceptions to this general rule, the facts of Caulkett did not implicate either of these exceptions.
  4. ↑ 11 U.S.C. § 101(5) (definition of "claim") and § 101(37) (definition of "lien").
    The full text of § 101(5) reads as follows:
    "The term '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 to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured."
    By corollary, 11 U.S.C. § 101(12) defines the term "debt" to mean "liability on a claim."
  5. ↑ 11 U.S.C. § 502(a) ("A claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest, including a creditor of a general partner in a partnership that is a debtor in a case under chapter 7 of this title, objects.")
  6. ↑ 11 U.S.C. § 506(a)(1) (emphasis added). The filing of a petition in bankruptcy "creates an estate[.]" 11 U.S.C. § 541(a). With certain exceptions not relevant here, that estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case." § 541(a)(1). This, then, is the "estate" to which § 506(a)(1) refers.
  7. ↑ United Sav. Ass'n of Texas v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 372 (1988) ("In subsection (a) of [§ 506] the creditor's "interest in property" obviously means his security interest without taking account of his right to immediate possession of the collateral on default.").
  8. ↑ 11 U.S.C. § 506(a)(1).
  9. ↑ See generally 4 Collier on Bankruptcy ¶ 506.03[5] (16th ed. 2015) (discussing § 506(a)(1) and how courts determine "the estate’s interest in the collateral, and ... the creditor’s interest in that interest.")
    For example, consider the following situation:
    • Debtor Mr. X owes $200,000 to First National Bank (FNB).
    • Mr. X's debt to FNB is secured by a first-priority mortgage lien on Mr. X's house, which has a fair market value of $150,000.
    • Mr. X duly files a bankruptcy petition in Chapter 7.
    • FNB duly files a proof of claim under 11 U.S.C. § 501; no objections are made to FNB's claim.
    Here, under § 506(a)(1), FNB would have an allowed secured claim of $150,000 and an allowed unsecured claim of $50,000. In common bankruptcy parlance, FNB's mortgage lien would be said to be "partially underwater," and FNB itself would be said to be "undersecured." To the extent that the amount of a creditor-lienor's claim exceeds the fair market value of the collateral property, that creditor's lien is said to be "underwater." Insofar as an "underwater" lien is supported by some value in the collateral property, that lien is only partially underwater. A creditor-lienor with a partially underwater lien is said to be "undersecured." See 4 Collier on Bankruptcy ¶ 506.03[4] (16th ed. 2015).
  10. ↑ See 4 Collier on Bankruptcy ¶ 506.03[4]
  11. ↑ See, e.g., 4 Collier on Bankruptcy ¶ 506.03[4]. Denomination of creditor-lienors' allowed claims as oversecured, fully secured, or undersecured is often extended to denominate creditor-lienors themselves as such, e.g.—a creditor-lienor with an undersecured claim is an "undersecured creditor," and so forth. E.g., Prof. John D. Ayer et al., What Every Secured Creditor (and Its Lawyer) Should Know About Chapter 11, in Chapter 11 – 101: The Nuts and Bolts of Chapter 11 Practice: A Primer 31 (H. Slayton Dabney, Jr. & John W. Kibler eds., 2007) ("[A creditor-lienor] may be oversecured, fully secured, or undersecured.").
  12. ↑ See, e.g., 4 Collier on Bankruptcy ¶ 506.03[4][b]; Prof. John D. Ayer et al., What Every Secured Creditor (and Its Lawyer) Should Know About Chapter 11, in Chapter 11 – 101: The Nuts and Bolts of Chapter 11 Practice: A Primer 32-35.
  13. 1 2 3 E.g., 4 Collier on Bankruptcy ¶ 506.03[4].
  14. ↑ Dewsnup v. Timm, 502 U.S. 410 (1992). See, e.g., A.W. Bailey III, Note, Dewsnup v. Timm: Judicial Sleight of Hand in Statutory Construction of the Bankruptcy Code, 7 BYU J. Pub. L. 319, 319 (1993) ("Judicial Sleight of Hand") ("The Court used [Dewsnup] to settle a debate over contradictory attempts among the circuits to interpret sections 506(a) and 506(d) of the Bankruptcy Code.").
  15. ↑ See Dewsnup, 502 U.S. at 411-12. The avoidance of the unsecured portion of a partially underwater lien is frequently termed "strip down". See, e.g., Lawrence Ponoroff, Hey, The Sun Is Hot And The Water's Fine: Why Not Strip Off That Lien?, 30 Emory Bankr. Dev. J. 13, 16 n.14 (2013) ("Why Not Strip Off That Lien?") ("'Strip down' occurs when an undersecured lien is bifurcated and the unsecured portion is avoided."). Thus, the Supreme Court's framing of the question presented in Dewsnup:
    We are confronted in this case with an issue concerning § 506(d) of the Bankruptcy Code, 11 U. S. C. § 506(d). May a debtor "strip down" a creditor's lien on real property to the value of the collateral, as judicially determined, when that value is less than the amount of the claim secured by the lien?
    502 U.S. at 411-12. See also Bailey, Judicial Sleight of Hand, at 319 ("The Court used [Dewsnup] to settle a debate over contradictory attempts among the circuits to interpret sections 506(a) and 506(d) of the Bankruptcy Code. The interpretive attempts applied to a Chapter 7 debtor's ability to "strip down" a creditor's lien on real property to the current value of the property."); David G. Carlson, Bifurcation of Undersecured Claims in Bankruptcy, 7 Am. Bankr. L.J. 1, 12 (1996) ("Bifurcation of Undersecured Claims") ("In Dewsnup v. Timm, the Supreme Court granted certiorari to unloose the Gordian knot of lien stripping.").
  16. ↑ Dewsnup, 502 U.S. at at 412-13; In re Dewsnup, 87 Bankr. 676, 677 (Bankr. D. Utah 1987). See also Margaret Howard, Dewsnupping the Bankruptcy Code, 1 J. Bankr. L. & Prac. 513, 514 (1992) ("Dewsnupping").
  17. ↑ Dewsnup, 502 U.S. at 413. See also Howard, Dewsnupping, at 513-14.
  18. ↑ Dewsnup, 502 U.S. at 417. See also Ponoroff, Why Not Strip Off That Lien?, at 16 ("The narrow holding of [Dewsnup] was that “strip down” of an undersecured claim is not permitted under § 506(d) in a chapter 7 case."); Howard, Dewsnupping, at 513 ("[T]he U.S. Supreme Court held in Dewsnup v. Timm that Section 506(d) of the Bankruptcy Code does not enable a Chapter 7 debtor to void a lien on overencumbered real property to the extent that the amount of the outstanding debt exceeds the property's value.").
  19. ↑ See Dewsnup, 502 U.S. at 417. See also Ponoroff, Why Not Strip Off That Lien?, at 19; Margaret Howard, Secured Claims in Bankruptcy: An Essay on Missing the Point, 23 Cap. U. L. Rev. 313, 318 (1994) ("Missing the Point"); Howard, Dewsnupping, at 516-17.
  20. ↑ Dewsnup, 502 U.S. at 417 ("Were we writing on a clean slate, we might be inclined to agree with petitioner that the words "allowed secured claim" must take the same meaning in § 506(d) as in § 506(a)."). See also Adler, Creditor Rights, at 11-12.
  21. ↑ Dewsnup, 502 U.S. at 417. As to that rule, the Court observed, "[u]nder the [pre-Code] Bankruptcy Act of 1898, a lien on real property passed through bankruptcy unaffected," and "[a]part from reorganization proceedings … no provision of the pre-Code statute permitted involuntary reduction of the amount of a creditor's lien for any reason other than payment on the debt." Id. at 418-19.
  22. ↑ Dewsnup, 502 U.S. at 417. See, e.g., Ponoroff, Why Not Strip Down That Lien?, at 19-20; Carlson, Bifurcation of Undersecured Claims, at 17-18.
  23. ↑ Caulkett, 135 S. Ct. at 2000 n.† (the "dagger footnote"). See, e.g., Dewsnup, 502 U.S. at 435-36 (Scalia, J., dissenting); In re Woolsey, 696 F. 3d 1266, 1273-74 (10th Cir. 2012) (charging that Dewsnup "warped the bankruptcy code's seemingly straight path into a crooked one."); Carlson, Bifurcation of Undersecured Claims, passim; Adler, Creditor Rights, at 10-12; Newborn, Decline of Priority, passim; Howard, Dewsnupping, passim.
  24. ↑ Dewsnup, 502 U.S. at 435 (Scalia, J., dissenting).
  25. ↑ Bank of America Nat. Trust and Sav. Assn. v. 203 North LaSalle Street P'ship, 526 U.S. 434, 461-63 (1999) (Thomas, J., concurring in the judgment).
  26. ↑ In re Woolsey, 696 F. 3d at 1274.
  27. ↑ See Caulkett, 135 S. Ct. at 1998; Bank of Am., N.A. v. Caulkett, No. 6:14-CV-78-ORL-31, 2014 WL 7175386, at *1 (M.D. Fla. Feb. 14, 2014).
  28. ↑ Bank of Am., N.A. v. Caulkett, 135 S. Ct. 674 (2014).
  29. ↑ Caulkett, 135 S. Ct. at 1998 (stating that "the question [is] whether a debtor in a Chapter 7 bankruptcy proceeding may void a junior mortgage under § 506(d) when the debt owed on a senior mortgage exceeds the present value of the property.")
  30. ↑ See also Ferraioli, Dewsnup Lives, at § 2, ¶¶ 6-8; Markell, Loser's Lament, at ¶¶ 8-10.
  31. ↑ Caulkett, 135 S. Ct. at 1999-2000. See also Ferraioli, Dewsnup Lives, at § 2, ¶¶ 6-8; Markell, Loser's Lament, at ¶¶ 8-10.
  32. ↑ Caulkett, 135 S. Ct. at 2000 n.† (the "dagger footnote") ("From its inception, [Dewsnup] has been the target of criticism....Despite this criticism, the debtors have repeatedly insisted that they are not asking us to overrule Dewsnup."). See also Ferraioli, Dewsnup Lives, at § 2, ¶¶ 6-8; Markell, Loser's Lament, at ¶¶ 8-10. Justices Kennedy, Breyer, and Sotomayor did not join the "dagger footnote."Caulkett, 135 S. Ct. at 1998 n.*.
  33. ↑ Caulkett, 135 S. Ct. at 1999-2001. See also Ferraioli, Dewsnup Lives, at § 2, ¶¶ 6-8; Markell, Loser's Lament, at ¶¶ 8-10.
  34. ↑ See, e.g., Ferraioli, Dewsnup Lives; Markell, Loser's Lament; G. Ray Warner, A Lien Strip Tease from the Supremes re: Bank of America, N.A. v. Caulkett Bankruptcy Litigation, Nat'l L. Rev. (June 2, 2015), http://www.natlawreview.com/article/lien-strip-tease-supremes-re-bank-america-na-v-caulkett-bankruptcy-litigation ("A Lien Strip Tease") ("What is strange about Caulkett is that Justice Thomas, writing for the full Court, goes out of his way to criticize Dewsnup....Why not just overrule Dewsnup? That brings us to the strangest aspect of the opinion. Not once, not twice, but three times in the short seven-page opinion, Justice Thomas states that the debtors did not ask the Court to overrule Dewsnup."); Richard E. Gottlieb, High Court Win Is No Cure-All For Subordinate-Lien Market, Law360 (June 2, 2015), http://www.law360.com/articles/662226/high-court-win-is-no-cure-all-for-subordinate-lien-market ("No Cure-All").
  35. ↑ Warner, A Lien Strip Tease.
  36. ↑ Ferraioli, Dewsnup Lives.
  37. ↑ See, e.g., Markell, Loser's Lament ("Does the dagger [foot]note signal that six justices are ready to put a knife through Dewsnup?"); Gottlieb, No Cure-All (as to the future of Caulkett, warning against "plac[ing] too much stock in the long-term sustainability of its precedential value, despite the unanimity of the court’s opinion.").
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