In re Kindall

508 B.R. 43, 2014 WL 960794
CourtUnited States Bankruptcy Court, S.D. Ohio
DecidedJanuary 14, 2014
DocketNo. 12-60841
StatusPublished
Cited by1 cases

This text of 508 B.R. 43 (In re Kindall) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Kindall, 508 B.R. 43, 2014 WL 960794 (Ohio 2014).

Opinion

ORDER GRANTING PLAINTIFF’S MOTION TO AVOID AND CANCEL THE JUDICIAL LIEN OF JP MORGAN CHASE BANK (DOC. 13)

C. KATHRYN PRESTON, Bankruptcy Judge.

This matter came before the Court for hearing on May 9, 2013, upon the Motion to Avoid and Cancel the Judicial Lien of JP Morgan Chase Bank (“Motion”) (Doc. 13) filed by Debtor on February 23, 2013, the response (Doc. 17) of JP Morgan Chase Bank, N.A. (“Chase”), and the reply (Doc. 18) of Debtor. Debtor and Chase are hereinafter collectively referred to as “Parties”. The Parties entered into Stipulations (Docs. 26 and 32 respectively) as to the pertinent facts related to this matter. Following the hearing, Debtor and Chase submitted Supplemental Memoranda in support of their respective positions (Docs. 31 and 33 respectively). The Motion seeks avoidance of Chase’s judicial lien pursuant to 11 U.S.C. § 522(f).

The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334, and General Order No. 05-02, entered by the District Court for the Southern District of Ohio, referring all bankruptcy matters to this Court. This matter is a core proceeding. See 28 U.S.C. § 157(b)(2)(A) and (K). Venue is properly before this Court pursuant to 28 U.S.C. §§ 1408 and 1409.

In the Motion, Debtor requests that the Court enter an order avoiding and cancel-ling the judicial lien held by Chase against Debtor’s residential real property on the basis that the judicial lien impairs Debtor’s exemption. Debtor argues that under a strict application of the formula set forth in 11 U.S.C. § 522(f), Chase’s lien impairs Debtor’s exemption and may be avoided in its entirety. Debtor contends that, as a survivorship tenant, he owns only a one-half interest in the Real Property and that one hundred percent of the balance outstanding on the note secured by the first mortgage should be considered pursuant to the formula to determine impairment under § 522(f). Alternatively, Debtor argues that the full mortgage balance should be applied in the formula because the mortgage was defectively executed by Debtor’s wife, Jill E. Kindall, and thus was ineffective to grant a mortgage on her interest.

In its response, Chase argues first that Debtor should be found to have a one hundred percent interest in the Real Property. Chase argues alternatively that if the Court finds that Debtor has a one-half interest in the Real Property, the formula under 11 U.S.C. § 522(f) requires that only half of the amount of the mortgage debt be used in calculating the extent of impairment of Chase’s judicial lien. Chase also contends that the junior judicial lien of Farm Credit Services should be avoided prior to Chase’s judicial lien pursuant to state lien priority laws.

[45]*45I. Findings of Fact

On or about October 14, 1997, Debtor and his wife, Jill E. Kindall, acquired residential real property known as 7008 Pine Hollow Drive, Westerville, Ohio, 43082 (“Real Property”) by survivorship deed. On December 27, 2012, Debtor filed a voluntary Petition for Relief under Chapter 7 of the Bankruptcy Code. Debtor listed the Real Property on Schedule A, and stated that the value of the Real Property is $213,500. On his Schedule C, Debtor claimed an exemption of his interest in the Real Property in the amount of $21,625.

There exists a consensual first mortgage upon the Real Property which was filed for record with the Delaware County Recorder’s office on January 10, 2003. The first mortgage is signed by Debtor and Debt- or’s wife; however, the wife’s signature was not acknowledged before a notary public. At the time of the filing of Debt- or’s Petition, the first mortgage loan had a balance of $130,000. The Real Property is subject to a judgment lien in favor of Chase, filed for record in the Common Pleas Court of Delaware County, Ohio on August 18, 2008. The balance due on Chase’s judgment is $142,071.83. The Real Property is also subject to a judgment lien in favor of Farm Credit Services, filed for record in the Common Pleas Court of Delaware County, Ohio on March 24, 2009. The balance due on Farm Credit Services’ judgment is $31,183.93.

II. Law and Analysis

Pursuant to 11 U.S.C. § 522(f), a debtor may avoid a judicial lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would otherwise be entitled. A lien impairs an exemption to the extent that the sum of all the liens on the property, plus the amount of the exemption that the debtor could claim if there were no liens on the property, exceeds the value of the debtor’s interest in the property absent the liens. 11 U.S.C. § 522(f)(2)(A).

A. The Debtor’s Interest in the Real Property.

Under Ohio law, a deed which conveys an interest in real property to two or more persons “for their joint lives, remainder to the survivor of them,” creates a survivor-ship tenancy in the grantees. Ohio Rev. Code § 5302.17. “[E]ach survivorship tenant holds an equal share of the title during their joint lives unless otherwise provided in the instrument creating the survivorship tenancy.” Ohio Rev.Code § 5302.20(B). Upon the death of a survivorship tenant, “the title of the decedent vests proportionately in the surviving tenants....” Id.

In determining the value of a debtor’s interest as a survivorship tenant for purposes of lien avoidance under § 522(f), the court in In re Lavine, 2012 WL 4106749 (Bankr.N.D.Ohio Sept. 18, 2012), examined the characteristics of survivorship tenancies, as set forth in Ohio Rev.Code § 5302.20. In particular, the court noted that each survivorship tenant has “ ‘an equal right to share in the use, occupancy, and profits’ and each is ‘subject to a proportionate share of the costs related to the ownership and use’ of the property. Each is able to convey his or her interest in the property individually, without altering the interest of the other [tenant] in the title.” Lavine, 2012 WL 4106749, *2 (citation omitted). The court further noted that, in an action by a creditor to enforce a lien against a survivorship tenant’s interest, “a court may order the entire property sold and divide the proceeds to account for the tenants’ fractional interests.” Id.

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

Related

Cite This Page — Counsel Stack

Bluebook (online)
508 B.R. 43, 2014 WL 960794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kindall-ohsb-2014.