In re Nickeas

503 B.R. 453, 2013 WL 4017940, 2013 Bankr. LEXIS 3224
CourtUnited States Bankruptcy Court, W.D. Wisconsin
DecidedAugust 6, 2013
DocketNo. 11-12304
StatusPublished
Cited by1 cases

This text of 503 B.R. 453 (In re Nickeas) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Nickeas, 503 B.R. 453, 2013 WL 4017940, 2013 Bankr. LEXIS 3224 (Wis. 2013).

Opinion

MEMORANDUM DECISION

ROBERT D. MARTIN, Bankruptcy Judge.

The debtors operate a small golf course with a bar and snack-food eatery, which is virtually dependent on its liquor license. Apex Mortgage Corp. claims a lien on that license. The debtors seek to avoid the lien under 11 U.S.C. § 522(f)(l)(B)(ii), arguing that the liquor license is a “tool of the trade.” Specifically, they claim an exemption in the license under § 522(d)(5), the “wildcard” exemption. They value the license at $5,000.

The debtors admit that no bankruptcy court has held that an intangible such as a liquor license is a tool of the trade within the meaning of § 522(f). (Debtors’ Letter Br. 2). However, they argue that the court should take a more expansive view of what constitutes a tool of the trade:

In our ever-changing economy in which the tangible ‘tools’ of manufacturing and manual labor are increasingly abandoned for a marketplace of ideas driven by information and technology, court decisions restricting ‘tools of the trade’ to the hammer and sickle of a by-gone era do little to advance the protection of the bankruptcy code for the 21st century worker, whose ‘tools’ are more likely to include software, online accounts, data, intellectual property, and the like. [455]*455When construing the bankruptcy code’s protection of debtors’ ‘tools,’ the courts should recognize the realities of a shift from a manufacturing economy to an information economy.

(Debtor’s Letter Br. 3). Apex cites two bankruptcy cases that have held a liquor license is not a tool of the trade: In re Caylor, 31 B.R. 821 (Bankr.W.D.Pa.1983) and In re Johnson, 255 B.R. 554 (Bankr.S.D.Ohio 2000).

Section 522(f) of the Bankruptcy Code provides that a debtor may avoid liens on certain exempt property “to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is ... a nonpossessory, nonpur-chase-money security interest in any ... implements, professional books, or tools, of the trade of the debtor ...” 11 U.S.C. § 522(f)(l)(B)(ii). In the Seventh Circuit, “the reference in section 552(f)[ (l)(B)(ii) ]1 to the tools of the trade exemption is to both the federal exemption and the corresponding state exemption, depending on which the debtor has elected ...” In re Thompson, 867 F.2d 416, 420 (7th Cir.1989). In Thompson, § 522(f)(l)(B)(ii) “took on the broader meaning under the Wisconsin exemption statute,” and in a case decided two years earlier, Patterson, it “took on the narrow meaning under the federal exemption list.” In re Stallsworth, 133 B.R. 470, 474 (Bankr.S.D.Ind.1991) (citing Thompson, 867 F.2d 416; In re Patterson, 825 F.2d 1140, 1146 (7th Cir.1987)). “The two cases together, therefore, stand for the proposition that the term tools of the trade in [§ 522(f)(l)(B)(ii) ] takes on the meaning of the law providing the exemption.” Id.

In Thompson, the Court of Appeals affirmed the avoidance of a lien on farm equipment, including tractors and a combine, under § 522(f), where the debtors had taken the Wisconsin tools of the trade exemption in the equipment. Thompson, 867 F.2d 416. In contrast, in Patterson the court held that similar equipment — the debtors’ tractor — and cattle were not tools of the trade under § 522(d)(6) and therefore § 522(f) because the federal exemptions were much narrower. Patterson, 825 F.2d 1140. The court explained that “[t]he purpose of the tools of the trade exemption is to enable an artisan to retain tools of modest value so that he is not forced out of his trade.” In re Patterson, 825 F.2d 1140, 1146 (7th Cir.1987). Strangely, the court did not address why it thought tractors were not farm implements.

In Patterson, the debtors had argued that both tractors and cattle were “instru-mentalities for turning raw materials (grass, hay, water, etc.) into salable products (milk, cheese, etc.),” and therefore should be considered tools of the trade in the broad sense. Patterson, 825 F.2d at 1146. The court dismissed this argument because under such a broad view “a businessman’s secretary is by the same token a tool of the trade,” and it would expand the exemption too far because “all capital and labor inputs are tools in this sense; the only things a business buys that [would not be] tools of its trade are raw materials.” Id. Additionally, the broad definition “makes it hard to explain the statute’s explicit mention of so petty an item as [456]*456‘professional books,’ which rarely (though sometimes) will have a substantial value, or the ceiling of $750 per debtor.” Id. Finally, “[t]here would be no point in allowing a debtor to exempt $750 worth of equipment that might have a market value of many thousands of dollars. He would have to sell it anyway, and probably he could not replace it; certainly he could not continue to use it in his trade.” Id.

Whether a liquor license constitutes a tool of the trade has been considered by two bankruptcy courts, one in the context of the federal exemptions and one in the context of Ohio exemptions. The bankruptcy court for the Western District of Pennsylvania held that a liquor license did not constitute a tool of the trade under § 522(d)(6). McNamara v. Kienholz (In re Stubenhofer), 31 B.R. 820 (Bankr.W.D.Pa.1983). The court determined that a liquor license was “a right or a privilege to transact a type of business, and is not a professional book or a tool or an implement by means of which acts involved in the conduct of a trade or business are performed.” Id. at 821. The court reiterated its holding in another case issued the same day. In re Caylor, 31 B.R. 821 (Bankr.W.D.Pa.1983).

Citing Stubenhofer and Caylor, the bankruptcy court for the Southern District of Ohio denied an exemption in a liquor license under Ohio’s tools of the trade exemption. In re Johnson, 255 B.R. 554 (Bankr.S.D.Ohio 2000). The court explained that “[t]he Pennsylvania bankruptcy court decided Matter of Stubenhofer using federal exemptions nearly identical to those available in Ohio, as well as state liquor licensing laws, which are also fundamentally similar to Ohio’s own laws.” Id. at 555. The court further stated, “It is noteworthy that Ohio and Pennsylvania law is similar in its treatment of liquor licenses. Like Pennsylvania, Ohio allows a liquor license to be transferred, sold, inherited, and renewed.” Id. (citing Bavely v. United States (In re Terwilliger’s Catering Plus, Inc.),

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Bluebook (online)
503 B.R. 453, 2013 WL 4017940, 2013 Bankr. LEXIS 3224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-nickeas-wiwb-2013.