In re Ahmed

194 B.R. 544, 1996 Bankr. LEXIS 402, 1996 WL 189560
CourtUnited States Bankruptcy Court, D. Connecticut
DecidedApril 15, 1996
DocketBankruptcy No. 93-53790
StatusPublished

This text of 194 B.R. 544 (In re Ahmed) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Ahmed, 194 B.R. 544, 1996 Bankr. LEXIS 402, 1996 WL 189560 (Conn. 1996).

Opinion

[545]*545MEMORANDUM OF DECISION ON MOTION TO AVOID JUDICIAL LIEN

ALBERT S. DABROWSKI, Bankruptcy Judge.

This Memorandum of Decision is a companion to a Memorandum of Decision and Order on Objection to Claims of Exemption (hereafter referred to as the “Exemption Opinion”) also entered this day. In the Exemption Opinion this Court determined the extent of the Debtors’ entitlement to a homestead exemption pursuant to C.G.S. § 52-352b(t). This Memorandum of Decision undertakes the analytically distinct exercise of determining whether the Debtors may avoid the lien of a creditor whose claim arose prior to October 1,1993.

I. JURISDICTION

The United States District Court for the District of Connecticut has jurisdiction over the instant matter by virtue of 28 U.S.C. § 1334(b); and this Court derives its authority to hear and determine the matter on reference from the District Court pursuant to 28 U.S.C. § 157(a), (b)(1). This is a “core proceeding” pursuant to 28 U.S.C. § 157(b)(2)(0), inter alia.

II. BACKGROUND

On November 29, 1993, the Debtors commenced the instant bankruptcy case through the filing in this Court of a joint voluntary petition pursuant to 11 U.S.C. § 302(a). Relief on said petition was simultaneously ordered by this Court. Details concerning the Debtors’ Schedules and Statements are set out at length in Section II of the Exemption Opinion 1 and all facts set out in that Opinion are incorporated herein.

On July 29, 1994, the Debtors filed their “Motion to Avoid Judicial Lien Impairing Exemption”. The Motion seeks to avoid a lien purportedly held by G & L Excavating, Inc. (hereafter referred to as the “Respondent”) on the Residence. In support thereof the Motion alleges the following facts, which are not contested in the context of this matter. On July 9, 1993, the Respondent obtained a prejudgment attachment (hereafter referred to as the “Attachment”) on the Residence in the amount of $15,000.00 through the recording of a duly authorized Certificate of Attachment. The value of the Residence is $180,000.00, and is encumbered by Respondent’s $15,000.00 attachment and two prior mortgages in favor of Naugatuck Savings Bank which secure claims totalling $137,-819.12.

As noted in the Exemption Opinion, the Debtors have most recently claimed an exemption in the Residence pursuant to C.G.S. § 52-352b(t) in the amount of $42,180.88— their perceived equity in the Residence over and above the mortgage interests of Nauga-tuck Savings Bank. The Debtors claim that the Attachment is a judicial lien that impairs their claimed homestead exemption in the Residence, and consequently, they are entitled to avoid the fixing of that lien pursuant to Section 522(f) of the Bankruptcy Code. The Respondent argues that avoidance of its lien is not available to the Debtors because, inter alia, they are not entitled to claim a homestead exemption pursuant to C.G.S. § 52-352b(t) as against its claim.

III.DISCUSSION

‘ A debtor’s ability to avoid the fixing of a judicial lien springs from the provisions of Section 522(f) of the Bankruptcy Code, which provided, in relevant part, that

(f) Notwithstanding any waiver of exemptions, 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—
(1) a judicial lien....

11 U.S.C. § 522(f) (1993) (emphasis supplied).

It is undisputed that the Attachment is a “judicial lien” within the meaning of Section 522(f). See 11 U.S.C. § 101(36). It is also undisputed that if the Debtors “would have been entitled” to an exemption under C.G.S. § 52-352b(t), then the Attachment impairs [546]*546that exemption entitlement. Thus the pivotal question posed in this Section 522(f) matter is whether the Debtors “would have been entitled” to an exemption under C.G.S. § 52-352b(t).

The Court is convinced that this question is controlled and ultimately resolved by its decision sustaining the Respondent’s objection to exemption as set out in the Exemption Opinion. Nonetheless, the Court provides this Memorandum of Decision to address directly the implications of Owen v. Owen, 500 U.S. 305, 111 S.Ct. 1833, 114 L.Ed.2d 350 (1991), an authority which arguably is germane only in a lien avoidance context. Then Chief Judge Robert L. Krechevsky’s opinion in Morzella noted in a footnote that the pure exemption objection issues involved in that case did not “involve any of the issues addressed by the Supreme Court in Owen_” In re Morzella, 111 B.R. 485, 489 n. 4 (Bankr.D.Conn.1994). While Chief Judge Alan H.W. Shiff discussed Owen at length in his opinion in In re Duda, 182 B.R. 662, 670-71 (Bankr.D.Conn.1995), he did so only to dispose of the debtors’ misplaced argument that Owen somehow compelled the provision of the homestead exemption, even in the absence of a hen avoidance contest. Id.

Owen is a pure hen avoidance case decided under Section 522(f). A shallow reading of Owen could lead one to conclude that hens can be avoided even when the subject exemption claim has been denied as against the hen creditor’s claim, as in the instant case. In fact, when one follows Owen s analytical process precisely, it becomes clear that hen avoidance is inappropriate 'under the facts of the instant case. In this regard, this Court cites with favor the well-reasoned discussion contained within Chief Judge Shiffs Opinion in Duda, to wit:

... Owen directed bankruptcy courts considering hen avoidance proceedings to “ask first whether avoiding the hen would entitle the debtor to an exemption, and if it would, then avoid and recover the hen.” [Owen, 500 U.S.] at 312-13, 111 S.Ct. at 1837.
* * * * * *
... The first step under the Owen analysis is to determine whether, ignoring the particular hen in question, the debtor is entitled to an exemption, [citations omitted]. In Owen, had the judicial hen in question never existed, the debtor would have been entitled to claim the full homestead exemption. An attribute of the hen, i.e. that it attached before the property acquired homestead status, was the basis for the creditor’s argument that it was not subject to avoidance.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Owen v. Owen
500 U.S. 305 (Supreme Court, 1991)
Stone v. Feldman (Feldman)
111 B.R. 481 (E.D. Pennsylvania, 1990)
In Re Duda
182 B.R. 662 (D. Connecticut, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
194 B.R. 544, 1996 Bankr. LEXIS 402, 1996 WL 189560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ahmed-ctb-1996.