JUSTICE SCALIA
dog of unknown size.
516 U.S. at 19.
541 U.S. at 498-99.
Dewsnup v. Timm, 502 U.S. 410, 112
S.Ct. 773 (1992), dealt with whether
a debtor could “strip off,” or lower or
eliminate a secured claim where there
was insufficient equity to support the
Citizens Bank of Maryland v. Strumpf,
516 U.S. 16, 116 S.Ct. 286 (1995) was
a 9-0 decision where the opinion was
written by Justice Scalia. The debtor
had a checking account at Citizens,
and also owed Citizens money on a
defaulted loan. When he filed Chapter
13, Citizens froze the account, and filed
a Motion for Relief from the Automatic
Stay and a request for a set-off. The
question was whether the automatic
stay was violated when Citizens
refused to honor post-filing withdrawal
requests. Justice Scalia found that
there was no stay violation, and that
Citizens’ actions merely sought to
maintain the status quo while pursuing
stay relief. He said:
In our view, petitioner’s action was
not a setoff within the meaning of §
362(a)(7). Petitioner refused to pay its
debt, not permanently and absolutely,
but only while it sought relief under
§ 362(d) from the automatic stay.
Whether that temporary refusal was
otherwise wrongful is a separate
matter—we do not consider, for
example, respondent’s contention that
the portion of the account subjected to
the “administrative hold” exceeded the
amount properly subject to setoff. All
that concerns us here is whether the
refusal was a setoff. We think it was not,
because—as evidenced by petitioner’s
“Motion for Relief from Automatic
Stay and for Setoff”—petitioner did
not purport permanently to reduce
respondent’s account balance by the
amount of the defaulted Loan.
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CONSUMER BANKRUPTCY JOURNAL
holding otherwise, the Court replaces
what Congress said with what it thinks
Congress ought to have said—and in
the process disregards, and hence
impairs for future use, well established
principles of statutory construction. I
respectfully dissent.
502 U.S. at 420. In the recent case
of Bank of America, NA v. Caulkett,
135 S.Ct. 1995, 575 U.S. ___ (2015),
a unanimous Court questioned the
continued viability of the majority’s
ruling in Dewsnup, and indicated a
willingness to reevaluate its decision.
claim. Justice Scalia dissented from a
6-2 decision holding that a a Chapter
7 debtor could not use §§ 506(a) and
506(d) of the Bankruptcy Code to
“strip down” a creditor’s lien on real
property to the current value of the
property. Justice Scalia’s dissent said:
With exceptions not pertinent here,
§ 506(d) of the Bankruptcy Code
provides: “To the extent that a lien
secures a claim against the debtor that
is not an allowed secured claim, such
lien is void . . . .” Read naturally and
in accordance with other provisions of
the statute, this automatically voids a
lien to the