Ninth Circuit Says It Knows Better than Eight Other Circuits on BAPCPA “Hanging Paragraph” in In re: Penrod

The Court of Appeals for the Ninth Circuit disagreed with eight other circuit courts on whether a creditor has a purchase money security interest in the negative equity of a debtor’s trade-in vehicle in In re: Penrod 2010 Wl 2794409 (9th Cir. 2010)

AmeriCredit has placed great emphasis on the decisions of the other circuit courts of appeal. In total, over some strong dissents, eight circuits have held that a creditor has a purchase money security interest in the negative equity of a debtor’s trade-in vehicle. Nuvell Credit Corp. v. Westfall (In re Westfall), 599 F.3d 498 (6th Cir.2010); In re Howard, 597 F.3d 852 (7th Cir.2010); Reiber v. GMAC, LLC ( In re Peaslee), 585 F.3d 53 (2d Cir.2009) (per curiam) (adopting the response to a certified question of a divided New York Court of Appeals, In re Peaslee, 13 N.Y.3d 75, 885 N.Y.S.2d 1, 913 N.E.2d 387 (2009)); Ford Motor Credit Co. v. Dale (In re Dale), 582 F.3d 568 (5th Cir.2009); Ford Motor Credit Co. v. Mierkowski (In re Mierkowski), 580 F.3d 740 (8th Cir.2009); Ford v. Ford Motor Credit Co. ( In re Ford), 574 F.3d 1279 (10th Cir.2009); In re Price, 562 F.3d 618 (4th Cir.2009); and Graupner v. Nuvell Credit Corp. (In re Graupner), 537 F.3d 1295 (11th Cir.2008).  ¶  We decline to adopt the reasoning of our sister circuits. We acknowledge that our decision creates a circuit split, and we do not do this lightly. However, we are persuaded by the well-reasoned decision of Bankruptcy Judge Markell and his colleagues on the BAP.