In re Coressel

265 B.R. 887, 2001 Bankr. LEXIS 643, 2001 WL 965137
United States Bankruptcy Court, N.D. Ohio·Decided March 19, 2001·No. No. 00-30611·Published

Opinion

DECISION AND ORDER

RICHARD L. SPEER, Chief Judge.

In the above captioned case, the Debtor, in conformance with Bankruptcy Rule 4003(d), has filed a Motion to avoid a judgment hen held by James Tonjes and Sonja Tonjes (hereinafter referred to as the Ton-jes). The statutory authority upon which the Debtor relies for her Motion is 11 U.S.C. § 522(f) which generally permits a debtor to avoid the fixing of a lien to the extent that such a lien impairs an exemption to which the debtor would have otherwise been entitled to claim. Specifically, § 522(f), provides, in relevant part:

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, ...
(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,
(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.

On April 3, 2000, the Tonjes filed an objection to the Debtor’s Motion to Avoid Lien. In their Objection, the Tonjes, while recognizing that a portion of their judgment lien impairs the Debtor’s exemption and thus should be avoided in accordance with the formula provided for in § 522(f), argue that sufficient equity exists in the Debtor’s residence to prevent the avoidance of their judgment lien in full. Simply put, the Tonjes argue that their lien is not fully impaired within the meaning of § 522(f), and therefore their judgment lien [889] against the Debtor’s property should remain intact, albeit at a reduced value. In support thereof, the Tonjes related to the Court this factual information:

The Debtor has a one-half (¡6) interest in certain real property located in Defiance County, Ohio. The Debtor, along with her husband, use this property as their principal place of residence;
according to the Auditor of Defiance County, Ohio, the appraised value of the Debtor’s residence is $65,890.00. Of this amount, $82,945.00 represents the Debt- or’s one-half 06) interest in the property; the Debtor’s residence is encumbered by a first and second mortgage, both of which are owed to Mid-Am Bank;
the total amount owed on the first and second mortgages to Mid-Am Bank is $47,991.80. The Debtor’s one-half interest in these mortgages is $23,995.90;
against her one-half interest in the residence, the Debtor, in accordance with O.R.C. § 2329.66(A)(b), has claimed a $5,000.00 dollar exemption;
the Tonjes have a judgment lien against the Debtor’s interest in her residence in the amount of $27,489.63.

As to the present value of the judgment lien at issue, the Tonjes argue that the lien should be valued at Three Thousand Nine Hundred Forty-nine and 10/100 dollars ($3,949.10). This dollar amount was determined as follows:

Judicial lien $27,489.63
Other hens $23,995.90
Exemption $ 5,000.00
Total $56,485.53
$56,485.53 then exceeds the Debtor’s interest of $32,945.00 in the property by $23,540.53. As a consequence, the Tonjes’ judgment lien of $27,489.63 against the Debtor’s property may be avoided by $23,540.53, thus leaving the Tonjes with a $3,949.10 dollar judgment lien against the Debtor’s property.

The Debtor, while not challenging the substantive application of 11 U.S.C. § 522(f) to the above-mentioned facts, has contested the use of the Defiance County Auditor’s appraisal of her residence. Specifically, the Debtor argues that, at most, her one-half 0&) interest in the residence should be valued at Twenty-seven Thousand dollars ($27,000.00), instead of Thirty-two Thousand Nine Hundred Forty-five dollars ($32,945.00), and therefore, in accordance with the formula set forth above in 11 U.S.C. § 522(f), no equity would exist in her house for the judgment lien held by the Tonjes to attach — i.e., the judgment lien held by the Tonjes may be avoided in full.

Based upon the Debtor’s point of contention, the Court, on December 18, 2000, conducted an Evidentiary Hearing to determine the value of the Debtor’s residence. At this Hearing, at which time the Parties were afforded the opportunity to present evidence in support of their respective positions, the following factual information was presented to the Court concerning the value of the Debtor’s residence:

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In re Coressel, 265 B.R. 887, 2001 Bankr. LEXIS 643, 2001 WL 965137 (Ohio 2001).

265 B.R. 887 (In re Coressel) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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