In re Fix

542 B.R. 502, 2015 Bankr. LEXIS 4043, 2015 WL 7755353
CourtUnited States Bankruptcy Court, D. Montana
DecidedNovember 30, 2015
DocketCase No. 15-60251-13
StatusPublished
Cited by1 cases

This text of 542 B.R. 502 (In re Fix) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Montana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Fix, 542 B.R. 502, 2015 Bankr. LEXIS 4043, 2015 WL 7755353 (Mont. 2015).

Opinion

MEMORANDUM OF DECISION

Honorable Ralph B. Kirscher, Chief U.S. Bankruptcy Judge

At Butte in said District this 30th day of November, 2015.

Debtors’ five Motions to avoid judicial liens on their claimed Montana homestead 1 exemption, (Document Nos. 41, 42, 43, 44, and 45) under 11 U.S.C. § 522(f)(1)(A), including three judicial liens held by Collection Bureau Services, Inc. (“CBS”), and liens held by William & Garnet Kinney (“Kinney”) and The Estate of Kent Olson, deceased by and through its Co-Personal Representatives Richard Olson and Scott Olson (the “Olson Estate”), are pending in this Chapter 13 case. The Court held a hearing on Debtors’ five Motions at Missoula on October 8, 2015. At the conclusion of the hearing, the Court gave the parties time to file post-hearing briefs, which have been submitted and reviewed by the Court along with the record and applicable law. This matter is ready for decision. For the reasons set forth below, the objections filed by Kinney and Olson will be overruled and Debtors’ five Motions to Avoid Lien will be granted by separate Order; the above-named creditors’ judicial liens on Debtors’ Montana homestead are avoided under § 522(f)(1)(A).

Daniel S. Morgan of Missoula represented Debtors at the hearing; Debtor Beverly Ann Bauer-Fix (“Beverly”) testified. Harold V. Dye of Missoula represented The Olson Estate. Raymond P. Tipp of Missoula represented Kinney. The Court admitted: Debtors’ Exhibits (“Ex.”) 1, 2, 3, 4, and 5; Olson’s Ex. A, B, C, and D; and Kinney’s Ex. G into evidence by stipulation. CBS filed no response and made no appearance at the hearing, which by operation of Montana Local Bankruptcy Rule 9013 — 1(f) is deemed an admission by CBS that the relief requested should be granted.

This Court has exclusive jurisdiction of this Chapter 13 bankruptcy under 28 U.S.C. § 1334(a). Debtors’ five Motions to avoid judicial liens are core proceedings under 28 U.S.C. § 157(b)(2).

FACTS

Debtors, Kinney and the Olson Estate filed a “Statement of Stipulated Facts” on October 8, 2015 (Doc. 77), which sets for the following undisputed facts:

1. Timothy Fix bought residential real property located at 21335 Old Highway 93, Florence, Montana [the MT property] from Kent Olson on March 11, 2005. See Debtors’ proposed Exhibit 1;
2. The MT property is legally described as “LOT 6A OF CARLTON TRACTS NO. 3, according to the official map or plat on file and of record in the office of the Clerk and Recorder, Mis-soula County, Missoula, Montana.” See Debtors’ proposed Exhibits 1 & 3;
3. Timothy Fix, his wife Beverly Bauer-Fix, and their child, moved on to [505]*505the MT property as their residence in March 2005;
4. On March 7, 2008, the Fixes recorded a Declaration of Homestead on the MT property with the Missoula County Clerk & Recorder. See Debtors’ proposed Exhibit 3;
5. In the winter of 2014-15, Timothy Fix closed his own auto repair shop in Missoula County and drove his and Beverly’s motor home to Arizona for employment as a mechanic. He took a full-time position at Lakeside Tire & Auto Service in Lake Havasu, AZ in December 2014. Beverly Fix and their child remained behind on the MT property and Beverly continued in her job as a school bus driver for Majestic;
6. On February 25, 2015 and-March 5, 2015, the Fixes signed a Purchase and Sale Agreement for the MT property with Shawn and Janis Fontaine. See Olson Estate’s proposed Exhibit A;
7. On February 26, 2015, the Fon-taines had a relative wire $40,000.00 to Beverly Fix’s bank account at Farmers State Bank for the down payment due under the Purchase and Sale Agreement;
8. Between March 13-15, 2015, the Fixes negotiated and signed a Buy-Sell Agreement to purchase residential real property located at 21 Southwester Ln., Lake Havasu, Arizona [the AZ property]. See Olson Estate’s proposed Exhibit B;
9. The Fixes used $30,000 of the $40,000 received from the Fontaines to make the down payment on the AZ Property through escrow.2 See Olson Estate’s proposed Exhibit C;
10. The Fixes filed the instant Chapter 13 petition on March 30, 2015;
11. The Fixes closed on the AZ property on April 1, 2015. See Olson Estate’s proposed Exhibit C;
12. The deed from Hailers to Fixes was dated March 27, 2015; notarized on March 30, 2015 and recorded on April 1, 2015. See Olson Estate’s proposed Exhibit D.
13. The Fixes did not list Hailers as creditors under either Schedule D or F or as counter-parties to an executory contract in Schedule G.
14. The Fixes are keeping animals and personal property on the MT Property to this day, pending closing of that sale to the Fontaines;
15. The sale of the MT Property to the Fontaines has not yet closed, although the Court entered an Order on October 6, 2015 approving the sale;
16. The MT Property is encumbered by a first mortgage to Select Portfolio Services in the amount of $169,182.41. See Debtors’ proposed Exhibit 4;
17. The MT property has a value of $335,000. See Olson Estate’s proposed Exhibit A;
18. Even before deducting second and third mortgages held by First Security Bank against the MT property totaling approximately $38,000 (Proofs of Claim 13 & 16), there is less than $250,000 of equity in the MT property;
19. The Estate of Kent Olson has a judgment lien on the MT property for $48,184.38. See Debtors’ proposed Exhibit 5;
20. William & Garnet Kinney have judgment liens on the MT property for [506]*506$10,419.11. See Kinneys’ proposed Exhibit F;
21. Collection Bureau Services holds three separate judgment liens on the MT property totaling approximately $5,000.

Doc. 77.

Other undisputed facts may be gleaned from the testimony and exhibits admitted into evidence, and the documents on the case docket. The declaration .of homestead which Timothy and Beverly signed and recorded on March 7, 2008, states that they “actually reside on the premises located at 21335 Old Highway 93, Florence,” Montana, and claim it as their homestead “for the joint benefit of each of us, and our family.” Ex. 3.

On their Chapter 13 petition Debtors stated that their street address was 21335 Old Highway 93 in Florence, Missoula County, Montana.3 Beverly testified that Debtors’ declaration under penalty of perjury that Debtors’ Schedules were true and accurate was effective March 30, 2015. They filed their Schedules and Statement of Financial Affairs (“SOFA”) on April 27, 2015 (Doc. 13).4

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Bluebook (online)
542 B.R. 502, 2015 Bankr. LEXIS 4043, 2015 WL 7755353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-fix-mtb-2015.