Baldwin v. Phillips (In re Phillips)

520 B.R. 853
CourtUnited States Bankruptcy Court, D. New Mexico
DecidedOctober 21, 2014
DocketBankruptcy No. 7-13-11987 TA; Adversary No. 13-1079 T
StatusPublished
Cited by2 cases

This text of 520 B.R. 853 (Baldwin v. Phillips (In re Phillips)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. New Mexico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baldwin v. Phillips (In re Phillips), 520 B.R. 853 (N.M. 2014).

Opinion

MEMORANDUM OPINION

DAVID T. THUMA, Bankruptcy Judge.

Before the Court1 is whether to grant Debtor’s request to avoid four liens on her house, either because the subject debt has been paid or pursuant to § 522(f).2 Jeffrey T. Baldwin (“Baldwin”) argues in opposition that the underlying debts are still due and are for domestic support, so § 522(f)(1)(A) prevents avoidance. Lynda M. Latta (“Latta”) argues that her attorney charging lien is not a judicial lien and cannot be avoided under § 522(f). For the reasons set forth below, the Court finds [856]*856that Baldwin’s liens are avoidable under § 522(f) but Latta’s lien is not.

I. FACTS

The Court finds the following facts:3

Baldwin and Phillips were married on May 8, 1994. They have two children. They were divorced effective September 8, 2004, as set out in a Final Decree of Dissolution of Marriage (“Divorce Decree”) entered by the New Mexico Second Judicial District Court, no. DM-2003-478 (the “Divorce Case”). At that time Phillips was granted custody of both children and had a gross monthly income of $600, while Baldwin had a gross monthly income of $1,239, and was required to pay $339 in child support.

Custody, visitation, and child support rights were hotly contested in the Divorce Case. One issue was the right to claim the children as dependents on the parties’ income tax returns. The Divorce Decree provided that each party could claim one child on his or her income tax return, beginning with the 2004 tax year. This arrangement was confirmed in a June 23, 2005 order issued by the state court, which clarified that the tax claims were “for all purposes,” including the dependency deduction and the earned income credit.”4 The order required Phillips to amend her 2004 income tax return to remove the claim of their son as a dependent, so Baldwin could claim their son on his return.

On November 18, 2005, the state court entered another order (the “2005 Order”) sanctioning Phillips a total of $850. $500 of this amount was because Phillips had not amended her 2004 income tax return as required. The remaining $350 was for Phillips’s refusal to allow an inventory of personal property.5 The 2005 Order provided that Phillips could purge herself of the $500 sanction if she filed the required amended tax return before January 15, 2006. Phillips did so. Surprisingly, however, Phillips later filed a second amended 2004 tax return and once again claimed their son as a dependent for EIC and other purposes.

On June 15, 2006, the state court entered an order (the “2006 Order”), giving Phillips the right to claim the EIC for their son if Baldwin did not do so.6 The order required Phillips to file her tax returns after Baldwin, so she could see whether Baldwin claimed the EIC.

On July 27, 2009, the state court entered an order (the “2009 Order”) finding, inter alia, that Phillips owed Baldwin $860 for her share of the children’s medical expenses Baldwin had paid. The court ordered Phillips to pay this amount over time, which she did.

On April 16, 2010, the state court entered a $500 judgment in favor of Baldwin [857]*857for the unpurged sanction in the 2005 Order.

Finally, in an order entered September 1, 2010 (the “2010 Order”), the state court entered a judgment against Phillips and in favor of Baldwin for $9,997.40. Most of this judgment resulted from Phillips’s wrongful use of the son’s social security number on her 2008 and 2009 tax returns, which prevented Baldwin from claiming their son as a dependent in those years. The resulting loss was $9,108.40. The remaining $889.00 was Phillips’s share of the children’s uninsured medical expenses Baldwin had paid.

To collect the amounts due under the orders described above, Baldwin filed Lien # 3-5 below, encumbering Phillips’ house. The parties have stipulated that all amounts secured by Lien #4 (the $860 from the 2009 Order) have been paid in full, and that $889 of the amount secured by Lien # 3 has been paid. That leaves $9,109.40 of Lien # 3 and all $500 of Lien # 5 in dispute.

Latta represented Phillips in the divorce. In May, 2009 Latta asserted Phillips owed her $7,267.04, plus interest.7 To collect the bill, Latta filed Lien # 2 below, purporting to encumber Phillips’ real property in Bernalillo County, New Mexico.

Phillips only real estate is her house, located at 2713 Morris NE, Albuquerque, NM 87112 (the “House”). According to Phillips’ bankruptcy schedules, the House has a fair market value of $141,000. Neither Latta nor Baldwin disputed this figure or introduced evidence of a different value.

The House currently is encumbered by the following claimed liens and mortgages:

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Phillips elected to use the federal exemptions under § 522(b) and claimed a homestead exemption of $14,000, per § 522(d)(1).

II. DISCUSSION

A. The Liens in Question Impair Phillips’ Homestead Exemption.

Section 522(f) provides in pertinent part:

(f)(1) Notwithstanding any waiver of exemptions but subject to paragraph (3), the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is—
(A) a judicial lien, other than a judicial lien that secures a debt of a kind that is specified in section 523(a)(5);
(2)(A) For the purposes of this subsection, a lien shall be considered to impair an exemption to the extent that the sum of—
(i) the lien;
[858]*858(ii) all other liens on the property; and
(iii) the amount of the exemption that the debtor could claim if there were no liens on the property;'
exceeds the value that the debtor’s interest in the property would have in the absence of any liens.
(B)In the case of a property subject to more than 1 lien, a lien that has been avoided shall not be considered in making the calculation under subparagraph (A) with respect to other liens.

Phillips’ house is worth $141,000. Subtracting the first mortgage leaves “equity” of $7,000. Each of the liens at issue, therefore, impairs Phillips’ $14,000 homestead exemption.

B. Phillips May Avoid Baldwin’s Liens.

1. Liens Securing Domestic Support Obligations Cannot be Avoided Under § 522(f). Section 522(f)(1)(A) provides that a debtor may avoid a lien securing a debt of the kind specified in § 523(a)(5). Section 523(a)(5) excepts from the general discharge debts for a “domestic support obligation.” This term is defined in § 101(14A):

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Related

In re Ongaro
556 B.R. 474 (D. New Mexico, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
520 B.R. 853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baldwin-v-phillips-in-re-phillips-nmb-2014.