In re Gary C.

49 B.R. 250, 1985 Bankr. LEXIS 6135
CourtDistrict Court, D. Massachusetts
DecidedMay 14, 1985
DocketBankruptcy No. 4-84-00499-G
StatusPublished
Cited by1 cases

This text of 49 B.R. 250 (In re Gary C.) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Gary C., 49 B.R. 250, 1985 Bankr. LEXIS 6135 (D. Mass. 1985).

Opinion

MEMORANDUM AND ORDER ON CREDITORS’ OBJECTION TO DEBTOR’S MOTION TO AVOID JUDICIAL LIENS

PAUL W. GLENNON, Bankruptcy Judge.

This matter comes before the Court on creditors’ objection to the debtors’ motion to avoid judicial liens impairing the debtors’ exemptions on their homestead property.

FACTS

A hearing was held on December 21, 1984 on Gary and Maureen Rehbein’s (alternatively “Rehbein” or “Debtors”) motion to avoid judicial liens that impair their [251]*251exemptions on their residence at 16 Jonathan Judd Circle in Southampton, Massachusetts (“homestead property”). At that hearing, creditors Donald and Linda Salt-marsh (alternatively “Saltmarsh”-or “Creditors”) objected to the avoidance of their judicial lien on the Debtors’' homestead property in the approximate sum of $7000. The Saltmarshes claimed that the property was undervalued1 and that their lien did not impair the Debtors’ exemptions under section 522 of the Bankruptcy Code.2 At the close of the hearing an order was entered avoiding all the judicial liens affecting the subject real estate, with the exception of the Saltmarsh lien. The motion to avoid judicial liens was continued with regard to the Saltmarsh lien, and a valuation hearing and a hearing on the continued motion were held on January 24, 1985. '

At the January 24, 1985 hearing, evidence was presented as to the value of the Debtors’ real estate. Numerous figures were put forth for the Court’s consideration, from a low of $72,200,3 the assessed value of the subject property as of January 1, 1985, to a high of $90,500. It was stipulated that, as of January 20, 1985, the encumbrances on the property, senior to the Saltmarsh lien, plus the exemptions to which the Debtors are entitled total $85,-328,4 exclusive of attorneys’ fees and costs.

Three witnesses, two for the Creditors and one for the Debtors, testified as to their opinions of the value of the property, and the Chairman of the Board of Assessors of Southampton, the town where the property is located, submitted an affidavit concerning the assessed value of the property. The relevant information gathered from these sources regarding the value of the subject property is essentially the following:

Geráld Ahern (“Ahern”), Chairman of the Board of Assessors, submitted an affidavit dated December 20, 1984 in which he stated that the property is “currently valued at $72,200,” a valuation made for tax assessment purposes. Ahern believed that the valuation had been done without a view of the interior of the house and also stated that “[i]t is not uncommon in the Town of Southampton for fair market value of residential real estate to be twenty to twenty-five percent above assessed value, for tax purposes.” He further stated that he believed “it is likely that the fair market value ... is in excess of eighty thousand dollars.”

Robert Borawski (“Borawski”), a professional appraiser appearing as a witness for the creditors, testified that, in his opinion, the valué of the property as of January 18, 1985, the date of his appraisal report,5 is $88,000. He used a comparative sales approach and took into consideration the Debtors’ unconfirmed claim that improvements to the leach field on the property are [252]*252necessary.6 On his appraisal report, Bo-rawski noted that homes in the area ranged in price from $40,000 to $125,000, with the predominant value being $80,000. He also testified that a home two doors away from the Rehbein property was under purchase and sale agreement for $108,000.7 Boraw-ski distinguished the $108,000 home from the Rehbein home by saying it was in somewhat better condition than the Reh-bein home and had a sunporch, which the Rehbein home does not have. The Court further distinguishes the Rehbein home from the $108,000 property by the fact that the realtor’s listing for the $108,000 property lists the cellar as having a “finished family room, laundry, utility room and workshop,” features which are absent from the Rehbein’s “unfinished” basement.

Virginia Root (“Root”), a professional appraiser brought in by the Debtors, testified that, in her opinion, the property had a fair market value as of January 17, 1985, the date of her appraisal report,8 of $87,000. Her valuation was based on the same comparative sales approach used by Borawski and took into consideration the septic system problem. Root noted on her appraisal report that homes in the area were in the $85,000 to $130,000 range, with the predominant value being $100,000.

Adrienne Kobak (“Kobak”), a member of the Board of Assessors in Southampton and former Chairman of that Board, testified on January 24, 1985 that, in her opinion, the fair market value of the property was somewhere between $90,000 and $93,-000 and settled on a value of $91,000 after subtracting $2500 for improvements to the septic system.9 Since her highest valuation was $93,000, that figure minus the $2500 adjustment would actually make her valuation $90,500 and not $91,000.

Kobak also testified that the Town of Southampton’s assessed value of $72,200 had been arrived at in 1982 and had not been re-evaluated since that time.

In addition to the numerous valuations of the Rehbein property, the Debtors’ counsel observed, at the January 24, 1985 hearing, that if there were a foreclosure sale it would be likely that the property would bring in considerably less than the figures that were discussed by the witnesses. He also pointed out that a sales commission would have to be paid in the event of a foreclosure sale, and be added to the present encumbrances, exemptions and attorneys’ fees and costs before any excess would be paid to the Saltmarsh lien.

DISCUSSION

There is no word used in the bankruptcy court which is more elusive than the word value.10 It is not surprising how many different results are had when more than one person looks at a piece of real estate. The real test, of course, is when the deal is closed in connection, therewith, after a reasonable willing buyer and a reasonable willing seller, neither being under duress, have reached an agreement on price in the open market. In re Shuttleworth, 12 B.R. 27, 29 (W.D.Pa.1981). Short of the real test, determining the value of property is a difficult task, made more difficult in this case because the figures arrived at by both sides are so close.

Value is subject to fluctuations caused by market fluctuations, changes in interest rates and general economic factors. Matter of Schmidt, 36 B.R. 144, [253]*253146 (Bankr.N.D.Ohio 1983). In order to avoid the effect of such fluctuations, the Bankruptcy Code states, for purposes of avoiding liens which impair the bankrupt's exemptions under § 522, that the value of property is to be established as of the filing date of the petition. In re Tarrant, 19 B.R. 360 (Bankr.D.Alaska 1982). Despite this provision, there is still much inexactness in determining the rights of the parties.

The Court listens to evidence of value and must determine which appraisal figure to fix upon. In making that determination, the Court is not bound by any figure in particular, but merely guided by them all. In re Development, Inc., 36 B.R. 998, 1004 (Bankr.D.Hawaii 1984).

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

Related

In Re Rehbein
49 B.R. 250 (D. Massachusetts, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
49 B.R. 250, 1985 Bankr. LEXIS 6135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-gary-c-mad-1985.