Case: 13-15855 Date Filed: 05/15/2014 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-15855
Non-Argument Calendar
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D.C. Docket Nos. 8:13-cv-02558-SDM, 8:13-bk-05393-KRM
In re: EDELMIRO TOLEDO-CARDONA,
Debtor.
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BANK OF AMERICA, NA,
Plaintiff-Appellant,
versus
EDELMIRO TOLEDO-CARDONA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(May 15, 2014)
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Before TJOFLAT, MARTIN, and JORDAN, Circuit Judges.
PER CURIAM:
Bank of America appeals from the district court’s order affirming an order
from the bankruptcy court voiding Bank of America’s lien on Edelmiro Toledo-
Cardona’s property in a Chapter 7 bankruptcy proceeding he initiated. Toledo-
Cardona’s property was subject to two mortgage liens at the time he filed for
bankruptcy. The debt owed on the first mortgage exceeded the fair market value of
the property. Bank of America held the second mortgage, which had a value of
over $100,000. Because the debt secured by the first lien exceeded the value of the
property, Bank of America’s junior lien was considered to be wholly “underwater.”
This being the case, Toledo-Cardona moved the bankruptcy court to “strip off” or
“void”—that is, extinguish in its entirety—Bank of America’s lien.
Bank of America’s response to Toledo-Cardona’s motion acknowledged that
under binding Eleventh Circuit precedent holding that a wholly underwater junior
lien is voidable, Toledo-Cardona’s motion should be granted. See Folendore v.
U.S. Small Bus. Admin., 862 F.2d 1537, 1538–39 (11th Cir. 1989); see also
McNeal v. GMAC Mortg., LLC, 735 F.3d 1263, 1265–66 (11th Cir. 2012) (per
curiam). For that reason, the bankruptcy court granted Toledo-Cardona’s motion.
Bank of America appealed to the district court, but moved for summary affirmance
in light of this Court’s binding precedent. The district court granted the motion,
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and Bank of America now seeks the appellate review that its motion for summary
affirmance was intended to expedite.
Bank of America maintains that Folendore and McNeal should be
overturned in light of Dewsnup v. Timm, 502 U.S. 410, 112 S. Ct. 773 (1992),
which held that a chapter 7 debtor could not “strip down” a creditor’s lien on real
property where the value of the property is less than what is due to be paid to the
creditor. Id. at 417, 112 S. Ct. at 778. But in McNeal, we reaffirmed Folendore
despite the holding in Dewsnup. McNeal, 735 F.3d at 1265–66. As Bank of
America concedes, we are bound as a panel to follow our Court’s decision in
McNeal. We therefore AFFIRM.
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