Penny Goudelock v. Sixty-01 Ass'n of Apt. Owners , 895 F.3d 633 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PENNY D. GOUDELOCK, No. 16-35384
Appellant,
D.C. No.
v. 2:15-cv-01413-
MJP
SIXTY-01 ASSOCIATION OF
APARTMENT OWNERS,
Appellee. OPINION
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Senior District Judge, Presiding
Argued and Submitted February 6, 2018
Seattle, Washington
Filed July 10, 2018
Before: Milan D. Smith, Jr. and Mary H. Murguia, Circuit
Judges, and Eduardo C. Robreno, * District Judge.
Opinion by Judge Robreno
*
The Honorable Eduardo C. Robreno, United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
2 GOUDELOCK V. SIXTY-01 ASSOCIATION
SUMMARY **
Bankruptcy
The panel reversed the district court’s decision affirming
the bankruptcy court’s summary judgment in favor of a
condominium association, which sought in an adversary
proceeding to determine the dischargeability of a debtor’s
personal obligation to pay condominium association
assessments that accrued between the date the debtor filed
her Chapter 13 bankruptcy petition and the date the
condominium unit was foreclosed upon.
Agreeing with the reasoning of the Seventh Circuit in a
Chapter 7 case, the panel held that condominium association
assessments that become due after a debtor has filed for
bankruptcy under Chapter 13 are dischargeable under
11 U.S.C. § 1328(a). The panel concluded that the debt
arose prepetition and was not among exceptions listed in
§ 1328(a). The panel held that the Takings Clause was not
implicated because the condominium association retained its
in rem interest. The panel also concluded that equitable
arguments did not override the express provisions of the
Bankruptcy Code.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
GOUDELOCK V. SIXTY-01 ASSOCIATION 3
COUNSEL
Amanda K. Rice (argued), Jones Day, Detroit, Michigan;
Nathaniel P. Garrett, Jones Day, San Francisco, California;
Christina L. Henry, Henry DeGraaff & McCormick P.S.,
Seattle, Washington; for Appellant.
Stephen M. Smith (argued), Sound Legal Partners PLLC,
Kenmore, Washington, for Appellee.
J. Erik Heath, San Francisco, California, as and for Amicus
Curiae National Association of Consumer Bankruptcy
Attorneys.
OPINION
ROBRENO, District Judge:
Appellant Penny Goudelock appeals the district court’s
affirmance of the bankruptcy court’s grant of summary
judgment in favor of appellee, Sixty-01 Association of
Apartment Owners (“Sixty-01”). The issue is whether
condominium association (“CA”) assessments that become
due after a debtor has filed for bankruptcy under Chapter 13
of the Bankruptcy Code are discharged upon confirmation of
the plan. We have jurisdiction pursuant to 28 U.S.C.
§ 158(d)(1). We conclude that such assessments are
dischargeable under 11 U.S.C. § 1328(a) and, accordingly,
reverse and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts are not in dispute. Goudelock purchased a
condominium unit in Redmond, Washington in 2001. Her
deed was subject to a declaration of covenants and
4 GOUDELOCK V. SIXTY-01 ASSOCIATION
restrictions (the “Declaration”) that was recorded against the
property in 1978. The Declaration provides that Sixty-01, a
CA, may charge property owners assessments for monthly
fees and for maintenance, repairs, and capital improvements.
The Declaration grants Sixty-01 two methods for
collecting unpaid assessments. It provides that all unpaid
assessments: (1) constitute a lien on the condominium unit,
enforceable through foreclosure; and (2) create a personal
obligation through which Sixty-01 can bring suit for
damages against the owner of the condominium unit. 1
1
This is consistent with the applicable Washington law. In
Washington, condominiums formed before 1990 are subject to the
Horizontal Property Regimes Act (“HPRA”), codified at RCW § 64.32.
Condominiums formed after July 1, 1990, are subject to the Washington
Condominium Act (“WCA”), codified at RCW § 64.34, which was
modeled after the Uniform Condominium Act. However, certain
provisions of the newer WCA apply to pre-1990 condominiums. As
relevant here, the WCA specifies that its provision governing a lien for
assessments, RCW § 64.34.364, applies to pre-1990 condominiums
“with respect to events and circumstances occurring after July 1, 1990,”
though it does not “invalidate or supersede existing, inconsistent
provisions of the declaration.” RCW § 64.34.010. Because Goudelock
acquired her condominium in 2001, all events relating thereto
necessarily occurred after July 1, 1990. Thus, to the extent that it is
consistent with the Declaration, RCW § 64.34 defines the contours of the
lien arising from Goudelock’s unpaid assessments. Here, the Declaration
and the WCA are consistent. Like the Declaration, the WCA establishes
that an association “has a lien on a unit for any unpaid assessments levied
against a unit from the time the assessment is due.” RCW § 64.34.364(1).
The WCA also provides that “[i]n addition to constituting a lien on the
unit, each assessment shall be the joint and several obligation of the
owner or owners of the unit to which the same are assessed as of the time
the assessment is due.” RCW § 64.34.364(12). An association may bring
a “[s]uit to recover a personal judgment for any delinquent assessment
. . . in any court of competent jurisdiction without foreclosing or waiving
the lien securing such sums.” Id.
GOUDELOCK V. SIXTY-01 ASSOCIATION 5
Goudelock stopped paying the CA assessments in 2009
and Sixty-01 sought to enforce its lien by initiating
foreclosure proceedings in state court. Goudelock moved out
of her condominium unit and, in March of 2011, filed for
bankruptcy under Chapter 13. As part of her Chapter 13 plan,
Goudelock surrendered the condominium unit. Sixty-01
filed a proof of claim attesting to $18,780.39 in unpaid CA
assessments and noted that they continued to accrue at a
monthly rate of $388.46. Before the plan was confirmed by
the bankruptcy court, Sixty-01 canceled the foreclosure sale
because the mortgage lender paid the outstanding
assessments. The condominium unit sat unoccupied until
February 26, 2015, when the mortgage lender foreclosed on
it. On July 24, 2015, Goudelock completed her plan
obligations and received a discharge pursuant to 11 U.S.C.
§ 1328(a).
Meanwhile, in April of 2015, Sixty-01 had brought suit
in the United States Bankruptcy Court for the Western
District of Washington to determine the dischargeability of
Goudelock’s personal obligation to pay the post-petition CA
assessments that had accrued between March 2011 (when
Goudelock filed her Chapter 13 petition) and February 2015
(when the condominium unit was foreclosed upon). The
bankruptcy court granted summary judgment in Sixty-01’s
favor, concluding that the post-petition CA assessments
“were not dischargeable because they arose at the time of
their assessment and were an incidence of legal ownership
of the burdened property.” Goudelock v. Sixty-01 Ass’n of
Apartment Owners, No. C15-1413-MJP, 2016 WL 1365942,
at *1 (W.D. Wash. Apr. 6, 2016) (summarizing the
bankruptcy court’s holding). The court rejected Goudelock’s
argument that the personal obligation to pay CA assessments
was a pre-petition debt under 11 U.S.C. § 1328(a) that arose
when she initially purchased the condominium unit. Id.
6 GOUDELOCK V. SIXTY-01 ASSOCIATION
Goudelock appealed, and the district court affirmed the
bankruptcy court’s grant of summary judgment. Id. at 2.
Goudelock then filed a timely appeal in this court.
II. STANDARD OF REVIEW
“This court reviews de novo a district court’s decision on
appeal from a bankruptcy court” as well as “[t]he bankruptcy
court’s conclusions of law and interpretation of the
Bankruptcy Code.” In re Greene, 583 F.3d 614, 618 (9th Cir.
2009).
III. ANALYSIS
No circuit court of appeals has addressed the
dischargeability of CA assessments that have become due
after the filing of a Chapter 13 petition. There are, however,
two appellate decisions addressing the dischargeability of
similar post-petition assessments under Chapter 7.
Moreover, a number of lower courts have imported the
teachings of these two appellate decisions under Chapter 7
to the dischargeability of post-petition association
assessments under Chapter 13. The two appellate decisions
(and their progeny) represent polar opposite positions and
their applicability to Chapter 13 cases is the starting point of
our analysis.
First, in Matter of Rosteck, 899 F.2d 694 (7th Cir. 1990),
the Seventh Circuit Court of Appeals found that the
obligation to pay CA assessments was an unmatured
contingent debt under the Bankruptcy Code that arose pre-
petition (when the debtors purchased the property) and that
merely became mature when the assessments became due
post-petition. Id. at 696–97. As a result, the debt for future
assessments was dischargeable, which the court held was
GOUDELOCK V. SIXTY-01 ASSOCIATION 7
“consistent with the Bankruptcy Code’s goal of providing
debtors a fresh start.” Id. at 697.
A contrasting view was articulated in In re Rosenfeld,
23 F.3d 833 (4th Cir. 1994), wherein the Fourth Circuit
Court of Appeals held that the obligation to pay cooperative
association assessments ran with the land and arose each
month from the debtor’s continued post-petition ownership
of the property. Id. at 837. Thus, the court concluded that any
assessments due and payable after the filing of the Chapter
7 petition were not dischargeable as they were not pre-
petition debts. Id. at 838. 2
Both lines of reasoning have been relied upon by lower
courts in this circuit when considering the dischargeability
of post-petition association assessments under Chapter 13,
ultimately reaching competing results. Compare In re
Coonfield, 517 B.R. 239, 243 (Bankr. E.D. Wash. 2014)
(following Rosteck’s reasoning and concluding “that the
claim against [the debtors] for association assessments arose
pre-petition and includes obligations for ongoing
assessments”), with In re Foster, 435 B.R. 650, 660–61
(B.A.P. 9th Cir. 2010) (applying Rosenfeld), and In re
Batali, No. WW-14-1557-KiFJu, 2015 WL 7758330, at *8–
9 (B.A.P. 9th Cir. 2015) (applying Rosenfeld and Foster).
2
As noted above, Rosteck and Rosenfeld were both Chapter 7 cases.
In 1994 Congress embraced Rosenfeld and rejected Rosteck by providing
that post-petition assessments are not dischargeable under Chapter 7 per
11 U.S.C. § 523(a)(16). While Congress applied this exception from
discharge to Chapter 7, 11, and 12 petitions, as well as Chapter 13
petitions where a debtor is discharged without completing her payments
(under 11 U.S.C. § 1328(b)), Congress notably omitted the exception for
Chapter 13 petitions where a discharge follows full payment under the
plan (under 11 U.S.C. § 1328(a))—which is the posture of this case.
8 GOUDELOCK V. SIXTY-01 ASSOCIATION
We agree with the reasoning of Rosteck and conclude
that its teachings in the Chapter 7 context are applicable to
Chapter 13 cases. Sixty-01 obtained two state law remedies
under the Declaration to address the failure to pay CA
assessments: an in rem remedy of a lien and right of
foreclosure; and an in personam remedy allowing it to bring
suit against the property owner. While the in rem lien is not
dischargeable under Chapter 13, the pre-petition in
personam obligation is. It is Goudelock’s in personam
obligation that ultimately is at issue in this case.
A. The Personal Obligation to Pay CA Assessments
Is a Debt Under Section 1328(a)
A Chapter 13 discharge is intended to be a “discharge of
all debts,” barring a few enumerated exceptions. 11 U.S.C.
§ 1328(a). Bankruptcy proceedings are intended to grant
debtors a “fresh start,” Grogan v. Garner, 498 U.S. 279, 286
(1991), and, as a result, the Bankruptcy Code “is to be
construed liberally in favor of debtors,” In re Devers,
759 F.2d 751, 754 (9th Cir. 1985). Moreover, in that
Chapter 13 is the preferred route for personal bankruptcy,
“[a] discharge under Chapter 13 ‘is broader than the
discharge received in any other chapter.’” United Student
Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 268 (2010)
(quoting 8 Collier on Bankruptcy ¶ 1328.01, p. 1328–5 (rev.
15th ed. 2008)).
The Bankruptcy Code defines “debt” as a “liability on a
claim.” 11 U.S.C § 101(12). In turn, 11 U.S.C. § 101(5)(A)
defines a “claim,” (and thus, a debt) as 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
GOUDELOCK V. SIXTY-01 ASSOCIATION 9
unsecured.” 3 This definition of a claim is very broad,
encompassing all of a debtor’s obligations “no matter how
remote or contingent.” In re SNTL Corp., 571 F.3d 826, 838
(9th Cir. 2009) (quoting In re Jensen, 995 F.2d 925, 929 (9th
Cir. 1993)); see also, e.g., Rosteck, 899 F.2d at 696; In re
Christian Life Ctr., 821 F.2d 1370, 1375 (9th Cir. 1987)
(stating that Congress intended to provide “‘the broadest
possible definition’ of claims so that ‘all legal obligations of
the debtor, no matter how remote or contingent, will be able
to be dealt with in the bankruptcy case.’” (quoting S. Rep.
No. 95-989, at 22 (1978), as reprinted in 1978 U.S.C.C.A.N.
5787, 5808)).
Thus, the obligation to pay CA assessments is a debt
since it creates a right to payment. See 11 U.S.C.
§ 101(5)(A). The fact that the future assessments may be a
contingent and unmatured form of the debt does not alter this
analysis. See, e.g., id.; SNTL Corp., 571 F.3d at 838.
B. The CA Assessment Debt Arose Pre-Petition and
Is Dischargeable
Neither party disputes that only debts arising pre-petition
may be discharged. Federal law determines when a claim
arises under the Bankruptcy Code. SNTL Corp., 571 F.3d at
839. In the Ninth Circuit, courts use the “fair contemplation”
test to determine when a claim arises. Id. This test provides
that “a claim arises when a claimant can fairly or reasonably
contemplate the claim’s existence even if a cause of action
has not yet accrued under nonbankruptcy law.” Id. Sixty-01
does not contest seriously that Goudelock’s in personam
3
Section 101(5)(B) includes an additional definition of “claim”
regarding the right to an equitable remedy. 11 U.S.C. §101(5)(B).
However, that definition is not relevant here.
10 GOUDELOCK V. SIXTY-01 ASSOCIATION
obligation meets the fair contemplation test. Here, at the time
of the purchase of the condominium unit, Sixty-01 fairly
could have contemplated that the monthly CA assessments
would continue to accrue based upon Goudelock’s continued
ownership of the condominium unit. Thus, Goudelock’s in
personam obligation to pay CA assessments arose pre-
petition when she purchased the condominium unit. See
Rosteck, 899 F.2d at 696 (concluding that the debtors “had a
debt for future condominium assessments when they filed
their bankruptcy petition” in light of the pre-petition
obligation in the declaration).
Before becoming due each month, the assessments,
which are part of the pre-petition debt, are unmatured and
are also contingent upon continued ownership of the
property. Unmatured contingent debts are, however,
dischargeable under Section 1328(a). 11 U.S.C.
§ 101(5)(A); see Coonfield, 517 B.R. at 242 (providing that
a homeowners association “possesses its claim by virtue of
[the debtors] acquiring title to the condominium and
subsequent assessments are a consequence of, and mature
from, the act that gave rise to such claim. Thus, absent the
debtors’ pre-petition act of taking title, the Homeowners
Association would not have a claim”).
In this case, Goudelock’s personal obligation to pay CA
assessments was not the result of a separate, post-petition
transaction but was created when she took title to the
condominium unit. As a result, the debt for the assessments
arose pre-petition and is dischargeable under Section
1328(a), unless the Bankruptcy Code provides an exception
to discharge.
GOUDELOCK V. SIXTY-01 ASSOCIATION 11
C. The Personal Debt Arising from CA Assessments
Is Not Excepted from Discharge under Section
1328(a)
Subsections 1328(a)(1)–(4) enumerate the only
exceptions to the broad discharge of debts under Section
1328(a). 4 In addition, under 11 U.S.C. § 523(a)(16), post-
petition association assessments are excepted from
discharge for petitions under Sections 727 (Chapter 7), 1141
(Chapter 11), 1228(a) and (b) (Chapter 12), and Section
1328(b) (Chapter 13 cases where the debtor is discharged
without completing her payments). 5 Notably absent from the
list of discharge exceptions in Section 1328(a) is a reference
to Section 523(a)(16), the only provision which excepts
post-petition association assessments from discharge. See
n.5 supra.
Thus, it appears that Congress’ decision not to add post-
petition association assessments to the exceptions listed in
4
The exceptions to Section 1328(a) discharge are debts regarding:
(1) curing defaults on unsecured claims or secured claims which require
payments due after the last payment under the plan is due (under
11 U.S.C. § 1322(b)(5)); (2) required taxes for which the debtor is liable
(under 11 U.S.C. § 507(a)(8)(C)); (3) taxes owed under unfiled or late
tax returns (under 11 U.S.C. § 523(a)(1)(B)); (4) taxes from fraudulent
tax returns or tax evasion (under 11 U.S.C. § 523(a)(1)(C)); (5) valuables
obtained by fraud or false pretenses (under 11 U.S.C. § 523(a)(2));
(6) unscheduled debts (under 11 U.S.C. § 523(a)(3)); (7) fraud or
defalcation while acting as a fiduciary, embezzlement, or larceny (under
11 U.S.C. § 523(a)(4)); (8) domestic support obligations (under
11 U.S.C. § 523(a)(5)); (9) student loans (under 11 U.S.C. § 523(a)(8));
(10) obligations for personal injuries resulting from a DUI (under
11 U.S.C. § 523(a)(9)); (11) restitution and fines arising from a criminal
conviction; and (12) damages awarded in personal injury actions
12 GOUDELOCK V. SIXTY-01 ASSOCIATION
Section 1328(a) was purposeful. See Boudette v. Barnette,
923 F.2d 754, 756–57 (9th Cir. 1991) (describing the rule of
statutory interpretation of expressio unius est exclusio
alterius as creating “a presumption that when a statute
designates certain persons, things, or manners of operation,
all omissions should be understood as exclusions”); see also
Pa. Dep’t of Pub. Welfare v. Davenport, 495 U.S. 552, 563
(1990) (“Congress secured a broader discharge for debtors
under Chapter 13 than Chapter 7 by extending to Chapter 13
proceedings some, but not all, of § 523(a)’s exceptions to
discharge.”), superseded by statute, Criminal Victims
Protection Act of 1990, PL 101-581, § 3, 104 Stat. 2865; In
re Riso, 978 F.2d 1151, 1154 (9th Cir. 1992) (“In order to
effectuate the fresh start policy [of bankruptcy], exceptions
to discharge should be strictly construed against an objecting
creditor and in favor of the debtor.”).
Sixty-01 cautions against giving undue weight to
“Congress’ silence” regarding its failure to include post-
petition CA assessments as an exception to discharge under
Section 1328(a), citing Foster. The court in Foster wondered
whether the failure to include this exception was simply the
result of a “statutory misstep.” 435 B.R. at 659. We reject
this conjecture. This is not a case implicating a drafting error
resulting from willful or malicious injury. The parties agree that none of
these exceptions are implicated here.
5
As stated, Congress added this exception to resolve the split
between the Fourth and Seventh Circuits in Rosenfeld, 23 F.3d 833, and
Rosteck, 899 F.2d 694 regarding post-petition association assessments in
Chapter 7 cases. Congress recognized in the legislative history of Section
523(a)(16) that “[e]xcept to the extent that the debt is nondischargeable
under [Section 523(a)], obligations to pay such fees [(post-petition
assessments)] would be dischargeable.” 140 Cong. Rec. H10752-01,
H10770 § 309 (citing Rosteck, 899 F.2d 694).
GOUDELOCK V. SIXTY-01 ASSOCIATION 13
or a Congressional oversight. Rather, it is an instance where
Congress confronted an issue of policy, and spoke by
creating explicit exceptions to discharge in Section 1328(a)
but did not include (as it did for other chapters) post-petition
CA assessments. See Boudette, 923 F.2d at 756–57.
This very dilemma (whether Congress’ exclusion of a
discharge exception was an oversight or purposeful) was
addressed by the Supreme Court in Davenport. In that case,
the Court concluded that because Congress had not explicitly
included the Chapter 7 discharge exception for fines,
penalties and forfeitures (Section 523(a)(7)) in Chapter 13,
and given Congress’ broad definition of the term “debt,” as
well as the fact that Chapter 13 afforded a broader discharge
than Chapter 7, criminal restitution orders were
dischargeable under Chapter 13. Davenport, 495 U.S. at
562–64. Congress disagreed with the Court’s decision and
later overruled it by amending Section 1328(a) to
specifically exclude criminal restitution from discharge. See
PL 101-581, § 3, 104 Stat. 2865; 11 U.S.C. § 1328(a)(3).
Davenport illustrates the proper interaction between
Congress and the courts. As applied here, the Bankruptcy
Code does not provide an exception to discharge under
Section 1328(a) for post-petition association assessments
(including CA assessments). If Congress concludes that such
an exception is sound public policy, it may amend the
Bankruptcy Code to provide for it as it did in response to
Davenport.
D. The Takings Clause and Notions of Equity
The parties raise two additional arguments that warrant
brief discussion.
First, Sixty-01 contends that, because it asserts that the
personal obligation to pay CA assessments is a real property
14 GOUDELOCK V. SIXTY-01 ASSOCIATION
interest stemming from the Declaration, the Fifth
Amendment’s Takings Clause prohibits the government
from discharging the obligation. The Takings Clause
provides that “private property [shall not] be taken for public
use, without just compensation.” U.S. Const. amend. V.
Sixty-01 argues just that—that the discharge of the post-
petition CA assessments would amount to a taking of a
substantial property right without just compensation.
This argument fails. In the bankruptcy context, the
Supreme Court has distinguished between secured in rem
debts and unsecured in personam debts: in personam debts
are dischargeable while the creditor retains its in rem
property interests. See Johnson v. Home State Bank,
501 U.S. 78, 82–84 (1991) (concluding that the debtor’s in
personam obligation under a mortgage, but not the in rem
obligation, was discharged pursuant to a Chapter 7 petition
and that, in addition, the remaining in rem property interest
was a “claim” under the broad definition in the Bankruptcy
Code subject to inclusion in a subsequent Chapter 13
reorganization plan); id. at 84 n.5 (“[A] discharge under the
Code extinguishes the debtor’s personal liability on his
creditor’s claims.”); see also In re Anderson, 378 B.R. 296,
298 (Bankr. W.D. Wash. 2007) (“A bankruptcy discharge
extinguishes only in personam claims against the debtor(s),
but generally has no effect on an in rem claim against the
debtor’s property.” (quoting Cen-Pen Corp. v. Hanson,
58 F.3d 89, 92 (4th Cir. 1995))). Because Sixty-01 retains its
in rem interest (even after the discharge of Goudelock’s in
personam debt), the Takings Cause is not implicated.
Second, both parties raise equitable arguments regarding
why post-petition CA assessments should or should not be
discharged under certain circumstances. Many of these
arguments turn on whether the debtor relinquishes his or her
GOUDELOCK V. SIXTY-01 ASSOCIATION 15
property or remains in possession of it post-petition.
However, there is no legal basis for distinguishing between
whether Goudelock retained possession of her condominium
unit post-petition and, thus, continued to enjoy the benefit of
occupancy at no cost, or, instead, surrendered it at some
point. Sixty-01 points out that bankruptcy courts are
“essentially courts of equity,” Granfinanciera, S.A. v.
Nordberg, 492 U.S. 33, 57 (1989) (quoting Katchen v.
Landy, 382 U.S. 323, 327 (1966)), and argues that affording
Goudelock what would essentially be “free rent” for four
years is inequitable and unjust. However, notions of equity
and fairness do not override the express provisions of the
Bankruptcy Code. Norwest Bank Worthington v. Ahlers,
485 U.S. 197, 206 (1988) (“[W]hatever equitable powers
remain in the bankruptcy courts must and can only be
exercised within the confines of the Bankruptcy Code.”).
The legislative branch, not the courts, is the appropriate
place to balance conflicting policy interests and adjust the
Bankruptcy Code accordingly if it is warranted. See
Davenport, 495 U.S. at 562–63 (recognizing that Congress
makes “policy choice[s] regarding the dischargeability” of
debts).
IV. CONCLUSION
For the foregoing reasons, we reverse the district court’s
affirmance of the bankruptcy court’s grant of summary
judgment in favor of Sixty-01 and remand for further
proceedings consistent with this disposition.
REVERSED AND REMANDED.