In re Phillips

553 B.R. 536, 2016 Bankr. LEXIS 2529, 2016 WL 3765694
CourtUnited States Bankruptcy Court, E.D. North Carolina
DecidedJuly 8, 2016
DocketCASE NO. 12-09022-8-DMW
StatusPublished
Cited by6 cases

This text of 553 B.R. 536 (In re Phillips) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Phillips, 553 B.R. 536, 2016 Bankr. LEXIS 2529, 2016 WL 3765694 (N.C. 2016).

Opinion

ORDER GRANTING MOTION TO AVOID JUDICIAL LIEN AND AMENDING PRIOR ORDER AVOIDING JUDICIAL LIEN

David M. Warren, United States Bankruptcy Judge

This matter comes before the court upon the Motion to Avoid the Fixing of a Lien on Interests of the Debtors in their Residence at 2136 Dr. Kerr Road, Ivanhoe, North Carolina (“Second Avoidance Motion”) filed by Bradley Morton Phillips and Susanna G. Phillips (“Debtors”) on January 15, 2016 and Creditor Mclnnis’s Objection to Debtors’ Motion to Avoid Lien on Property (“Second Objection”) filed by Sherrill S. Mclnnis- (“Mclnnis”) on January 31, 2016. The court conducted a hearing (“2016 Hearing”) on March 16, 2016 in Raleigh, North Carolina. Dean R. Davis, Esq. appeared for the Debtors, and David Paul Ennis, Esq. appeared for Mclnnis. Based upon the pleadings, case record, evidence presented, and arguments of counsel, the court makes the following' findings of fact and conclusions of law:

JURISDICTION

.1. This matter is a core proceeding pursuant to 28 U.S.C. § 157, and the court has jurisdiction pursuant to 28 U.S.C. §§ 151,157, and 1334. Osborne v. Dominion Bank, N.A. (In re Osborne), 156 B.R. 188, 189 (Bankr.W.D.Va.1993), rev’d on other grounds, 165 B.R. 183 (W.D.Va.1994) (finding that a motion to avoid a lien pursuant to 11 U.S.C. § 522(f) is a core proceeding).

2. The court has the authority to hear this matter pursuant to the General Order of Reference entered August 3, 1984 by the United States District Court for the Eastern District of North Carolina.

BACKGROUND

3. The Debtors filed a voluntary petition for relief under Chapter 13 of the United States Bankruptcy Code (“Code”) on December 21, 2012 (“Petition Date”). On April 29, 2014 (“Conversion Date”), the Debtors voluntarily converted the case to Chapter 7 pursuant to 11 U.S.C. § 1307(a) and Rule 1017(f)(3) of the Federal Rules of Bankruptcy Procedure, and the court appointed Walter L. Hinson, Esq. (“Trustee”) to administer the estate pursuant to 11 U.S.C. § 704.

4. Pursuant to a General Warranty Deed dated February 25, 2008 and recorded in Book 1699, Page 52, Sampson County Register of Deeds, the Debtors obtained title to real property (“Property”) located at 2136 Dr. Kerr Road, Ivanhoe, North Carolina. The Property was the Debtors’ residence on the Petition Date and continues to be the Debtors’ residence.

[539]*5395. On March 31, 2008, the Debtors executed a Note (“Chase Note”) in favor of JPMorgan Chase Bank, N.A. (“Chase”) in the original principal ' amount of $164,000.00. The Chase Note is secured by a first priority Deed of Trust (“Chase Lien”) upon the Property. The Chase Lien is recorded in Book 1702, Page 803, Sampson County Register of Deeds. As evidenced by a proof of claim filed by Chase on April 4, 2013, the amount due under the Chase Note on the Petition Date was $153,873.30.

6. On June 17, 2010, Pages Creek Marine Services, Inc. executed a Note Modification Agreement (“BB & T Note”) in favor of Branch Banking and Trust Company (“BB & T”) in the original principal amount of $10,222.88. The Debtors are personally liable on the BB & T Note as guarantors. The BB & T Note is secured by a second priority Deed of Trust (“BB & T Lien”) upon the Property. The BB & T Lien is recorded in Book 1773, Page 386 and rerecorded in Book 1773, Page 845, Sampson County Register of Deeds. As evidenced by an amended proof of claim filed by BB & T on October 20, 2014, the amount due under BB & T Note on the Petition Date was $6,798.08.

7. On December 15, 2011, the Superior Court of New Hanover County, North Carolina, File No. ll-CVS-1987, entered an Order (“Mclnnis Judgment”) which, inter alia, granted judgment against the Debtors and in favor of Mclnnis and Philip 1 K. Mclnnis, Jr.2 (collectively referred to as the “Mclnnises”) for the sum of $176,129.45 with interest at a rate of 8% from April 1, 2011 plus $14,610.00 without accrual of interest3 and attorneys’ fees and costs. On November 5, 2012, the Mclnnis Judgment was transcribed to Sampson County, thereby creating a third priority lien (“Judicial Lien”)4 upon the Property. As evidenced by a proof of claim filed by Mclnnis on January 17, 2013, the amount due on the Mclnnis Judgment on the Petition Date was $248,296.55.5

8. On February 22, 2013, while their bankruptcy case was proceeding under Chapter 13, the Debtors filed a Motion for Determination of Unsecured Status of Claim and for Avoidance of Judgment Lien (“First Avoidance Motion”). In the First Avoidance Motion, the Debtors requested the court to determine that the Mclnnis Judgment was fully unsecured pursuant to 11 U.S.C. § 506(a)(1), resulting in the Ju[540]*540dicial Lien being void pursuant to 11 U.S.C. § 506(d). In addition, the Debtors asserted that the Judicial Lien should be avoided pursuant to 11 U.S.C. § 522(f), because it impaired the Debtors’ homestead exemption allowed under N.C. Gen. Stat. § 101601(a)(1).

9. On March 11, 2013, the Mclnnises filed an objection (“First Objection”) to the First Avoidance Motion.6 The court conducted a hearing (“2013 Hearing”) on the First Avoidance Motion on March 20, 2013, but neither Mclnnis nor her counsel appeared in support of the First Objection.7 At the 2013 Hearing, BradleyMorton Phillips (“Male Debtor”) testified that, based upon an appraisal report dated January 24, 2013, the value of the Property on the Petition Date was $156,000.00. Counsel for the Debtors also established that the Debtors each claimed a $5,000.00 wildcard exemption pursuant to N.C. GemStat. 1C-1601(a)(2); therefore, they could each claim a $30,000.00 homestead exemption in the Property pursuant to N.C. Gen.Stat. lC-1601(a)(l), resulting in a total homestead exemption of $60,000.00. Considering these values in conjunction with the values of the Chase Lien, the BB & T Lien, and the Judicial Lien, the court determined that the Judicial Lien was wholly avoidable under either 11 U.S.C. § 506(d) (“§ 506 Avoidance”) or 11 U.S.C. § 522(f) (“§ 522 Avoidance”), and the court directed the Debtors’ counsel to submit a proposed order granting the requested relief.

10.

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Cite This Page — Counsel Stack

Bluebook (online)
553 B.R. 536, 2016 Bankr. LEXIS 2529, 2016 WL 3765694, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-phillips-nceb-2016.