In Re Hall

169 B.R. 732, 1994 Bankr. LEXIS 1039, 1994 WL 371390
United States Bankruptcy Court, N.D. Oklahoma·Decided July 8, 1994·No. 19-10064·Published·Cited by 5 cases

Opinion

ORDER DENYING DEBTORS’ MOTION TO AVOID LIEN

MICKEY DAN WILSON, Chief Judge.

On April 21, 1994, this contested matter came on for hearing, and thereafter was taken under advisement. Upon consideration of evidence received, of statements and arguments of counsel, and of the record herein, this Court, pursuant to F.R.B.P. 7052 and 9014, finds, concludes, and orders as follows.

FINDINGS OF FACT

On February 28, 1994, Randall Eugene Hall and Christie Gale Hall (“debtors”) filed their joint voluntary petition for relief under 11 U.S.C. Chapter 7 in this Court. With their petition, debtors filed statements and schedules as required by 11 U.S.C. § 521(1) and appropriate Bankruptcy Rules and Official Forms. Debtors’ “Schedule B — Personal Property” reported debtors’ ownership of the following assets: “Cash on hand” of $5; “Household goods and furnishings ...” including “living room furniture,” “bedroom furniture,” “dining room furniture,” “washer,” “dryer,” “JVC Remote Control TV” and “refrigerator” valued at $405 total; “clothing” valued at $100; “... [Sjports, photographic, and other hobby equipment” consisting solely of “fishing gear” valued at $35; three cars; no “Farming equipment and implements”; and “Other personal property ...” consisting of a “chain saw” valued at $50, a “lawnmower” valued at $75, and “all other personal property” valued at $30. Debtors’ “Schedule C — Property Claimed Exempt” claimed most of said personalty as exempt, but made no claim of exemption as to the fishing gear, one of the cars, the chain saw, and the lawnmower. These schedules, together with debtors’ “Schedule D — Creditors Holding Secured Claims,” indicated that a creditor named “Beneficial Finance” held a security interest in debtors’ “furniture, lawnmower, chainsaw, [and] fishing gear,” securing a debt of approximately $2,500. “Beneficial Finance” appears to be Beneficial Oklahoma, Inc., hereinafter referred to as “Beneficial.” To date, debtors have made no amendments to these original statements and schedules.

On March 1, 1994, debtors filed their “Motion to Avoid Lien of Beneficial ... Impairing Exemption.” This document sought avoidance pursuant to 11 U.S.C. § 522(f)(2) of Beneficial’s security interest in “Household goods, including furniture, lawnmower *734 and chainsaw.” On March 30, 1994, Beneficial filed its “Objection ...” thereto, and the matter was set for hearing.

At hearing, it appeared that debtors owned personal property not disclosed, inadequately disclosed, or significantly undervalued in their schedules, including sports, exercise and recreational equipment; hunting and camping equipment; radio, video and photographic equipment; miscellaneous workshop tools and equipment; and one Montgomery Ward “garden tractor” of a value of approximately $500. The last-named item was the one referred to in debtors’ schedules as “lawnmower” and valued therein at $75.

The parties now dispute only the treatment of the “garden tractor” or “lawnmower.”

CONCLUSIONS OF LAW

This is a core proceeding under 28 U.S.C. § 157(b)(2)(B), (K), (O), 11 U.S.C. § 522.

Debtors seek to avoid Beneficial’s lien by authority of 11 U.S.C. § 522(f)(2). This statute provides in pertinent part that “the debt- or may avoid the fixing of a lien ... to the extent that such lien impairs an exemption ... if such lien is ... a security interest in ... household furnishings, household goods, ... [or] appliances ...” The exemption referred to is “an exemption to which the debt- or would have been entitled under subsection (b) of this section ...” 11 U.S.C. § 522(b) in turn operates, in conjunction with 31 O.S. § 1(B), to make available to debtors in bankruptcy only those exemptions created by non-bankruptcy Federal and Oklahoma State law. These include pre-eminently the Oklahoma exemptions found at 31 O.S. § 1(A). As a result, a lien may be avoided under Federal law, i.e. under 11 U.S.C. § 522(f)(2), only if the collateral to which the lien attaches is exempt under State law, i.e. under 31 O.S. § 1(A).

Property can be exempt in bankruptcy only if it is claimed as exempt, by listing it as claimed exempt pursuant to 11 U.S.C. § 522(Z), F.R.B.P. 4003(a), Official Form 6. Here, debtors never claimed the disputed item as exempt — whether as a “garden tractor,” “lawnmower,” or anything else. Since debtors never claimed the disputed item as exempt, it is not exempt.

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In Re Hall, 169 B.R. 732, 1994 Bankr. LEXIS 1039, 1994 WL 371390 (Okla. 1994).

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