In re Jones

603 B.R. 325
CourtUnited States Bankruptcy Court, E.D. Kentucky
DecidedMay 28, 2019
DocketCASE NO. 05-55697
StatusPublished
Cited by5 cases

This text of 603 B.R. 325 (In re Jones) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Jones, 603 B.R. 325 (Ky. 2019).

Opinion

FINDINGS OF FACT

A. Procedural Background

1. Bankruptcy Case Activity in 2005 and 2006

Linda Kay Jones and Michael Ray Jones2 jointly filed this chapter 7 case on October 14, 2005 ("Petition Date"). Debtors' Schedule A lists their joint, fee simple ownership of one parcel of real property located at 229 Vine Street, Sadieville, Scott County, Kentucky (the "Vine Property"). Debtors claimed a $6,000 exemption in the Vine Property on Schedule C. Schedule D lists Creditor as being owed a $2,602 debt that arose in April 2001 and that is secured by a judgment lien on the Vine Property. Schedule D also listed seven other parties designated as "representing" Creditor. [ECF No. 1 at 10-11.] Creditor and all seven other parties were listed on the mailing matrix that Debtors filed with their petition, and the record reflects that the Bankruptcy Noticing Center served the Notice of Debtors' bankruptcy on all of them. The mailing matrix has never been amended.

On the Statement of Intention filed with their petition, Debtors stated their intent to avoid Creditor's judgment lien on the Vine Property. On February 22, 2016, Debtors filed a Motion to Avoid Judgment Lien [ECF No. 8 ("Avoidance Motion") ], seeking to avoid the Notice of Judgment Lien that Creditor filed in the Scott County, Kentucky Clerk's Office against "all of the right, title and interest of [Debtor Linda Jones] in and to any real property located in Scott County, Kentucky." [ECF No. 8-2 ("Judgment Lien"); see also ECF No. 19 at 10 (file-stamped copy of Judgment Lien).] Debtors sought to avoid the Judgment Lien pursuant to § 522(f), arguing that it is a "judicial lien" that impaired their exemption in the Vine Property. The Judgment Lien states on its face that it was prepared by an attorney with the law firm of Lloyd & McDaniel, PLC. In the certificate of service within the Avoidance Motion, Debtors' counsel certified that he served the Avoidance Motion on Creditor in care of Lloyd & McDaniel, PLC at the address listed on the Judgment Lien.3

No party objected to the Avoidance Motion. The Court entered an Order granting Debtors a chapter 7 discharge on March 9, 2006. [ECF No. 11 ("Discharge Order").]

*329Four days later, on March 13, 2006, the Court entered an Order granting the Avoidance Motion. [ECF No. 13 ("Avoidance Order").] The record does not show that the Avoidance Order was served on Creditor. Debtors' bankruptcy case was closed on April 6, 2006.

2. Bankruptcy Case Activity in 2019

On January 15, 2019, Debtor Linda Kay Jones4 filed three motions in this case. She filed a Motion to Reopen Case so that she could "take action against a creditor that is continuing to collect on a discharged debt." [ECF No. 17 ("Motion to Reopen") at 1.] She filed a Motion to Substitute Counsel because her 2005 attorney was no longer representing debtors in bankruptcy, and she "need[ed] an attorney to file a Motion for Contempt regarding a discharge violation." [ECF No. 18 ("Motion to Substitute") at 1.] She also filed the Contempt Motion. The Contempt Motion asserts that Debtor recently inherited real estate in Scott County, Kentucky, which she and her siblings were attempting to sell, but the closing was being delayed because Creditor had not released the Judgment Lien that was avoided nearly 13 years ago.

All three Motions included certificates of service. Debtor's new bankruptcy counsel, J.D. Kermode, certified that he served the Motion to Reopen and Motion to Substitute on all creditors on January 15, 2019.5 Mr. Kermode certified that he served the Contempt Motion via certified mail to Creditor in care of Creditor's Chief Executive Officer, Richard Fairbank, that same day. Debtor avers in her Supplemental Brief that, upon information and belief, Creditor received the Motion for Contempt on January 23, 2019.

All three Motions included notices of hearing. The Contempt Motion was properly noticed for hearing on February 14, 2019. Because the notices in the other two Motions contained incorrect dates, Mr. Kermode filed amended hearing notices on January 16, 2019, and certified that he served them that day on all creditors.

The Court held a hearing on the three Motions on February 14, 2019. No party responded to any of the Motions, and Mr. Kermode was the only person who attended the hearing. The Court granted the Motion to Reopen and the Motion to Substitute Counsel. The Court entered a separate Order regarding the Contempt Motion, which stated in part:

It is ORDERED that, based upon the Court's review of the record, the Court finds that Creditor Capital One Bank's ("Creditor") judicial lien on Debtor's real property has been avoided. [ECF No. 13.] An Order of Discharge was entered on March 9, 2006. Accordingly, the Court shall enforce the discharge injunction and Creditor Capital One Bank shall forthwith release its judicial lien on the real estate located at 229 Vine Street, Sadieville, Kentucky. If the Lienholder fails to act within 30 days, the Debtor is authorized to present this Order to the applicable recording office and the designated recording officer shall note the release in the applicable lien records.

[ECF No. 30 ("Release Order") at 1.] The Release Order directed Debtor to supplement the record with evidence supporting the remaining relief requested in the Contempt Motion, specifically including damages, within 14 days. The Release Order *330also allowed any party 21 days from its entry to respond to Debtor's supplement or to otherwise supplement the record with any legal authority or other matters supporting its position regarding the Contempt Motion. Finally, the Release Order set a continued hearing on the Contempt Motion for March 21, 2019 and directed Debtor to serve the Order on Creditor. Mr. Kermode filed a Certificate of Service evidencing that he served the Release Order via certified mail to Creditor in care of CEO Richard Fairbank on February 15, 2019. Debtor avers in her Supplemental Brief that, upon information and belief, Creditor received the Release Order on February 22, 2019.

To further support the Contempt Motion, Debtor timely filed her sworn Affidavit, documents relating to her inheritance and proposed sale of real estate, and Mr. Kermode's invoice for time spent representing Debtor in this matter through February 28, 2019. Debtor also timely filed her Supplemental Brief. No other party filed anything. Mr. Kermode certified that he served the Affidavit and accompanying documents and, separately, the Supplemental Brief, via certified mail to Creditor in care of Mr. Fairbank on January 28, 2019, and March 7, 2019, respectively.

The Court held a continued hearing on the Contempt Motion on March 21, 2019. Again, only Debtor's counsel appeared. After hearing argument, the Court granted Debtor seven days within which to supplement the record with evidence of the time Mr. Kermode spent representing Debtor in this matter after February 28, 2019. Mr. Kermode timely filed his updated invoice, and the Court took this matter under submission.

B. Debtor's Inheritance and Sale of Real Estate

Debtor still owns the Vine Property.

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Bluebook (online)
603 B.R. 325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jones-kyeb-2019.