In re Proctor

W.D. Kentucky

In re Proctor

27 B.R. 7, 1982 Bankr. LEXIS 4169

CourtDistrict Court, W.D. Kentucky

DecidedMay 10, 1982

DocketBankruptcy No. 4-81-00406

StatusPublished

This text of 27 B.R. 7 (In re Proctor) is published on Counsel Stack Legal Research, covering District Court, W.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re Proctor, 27 B.R. 7, 1982 Bankr. LEXIS 4169 (W.D. Ky. 1982).

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Opinion

MEMORANDUM AND ORDER

STEWART E. BLAND, Bankruptcy Judge.

This bankruptcy case comes before the Court on objection of a creditor, Peoples Security Finance Company, by counsel, to the avoidance of its lien by the debtor pursuant to 11 U.S.C. § 522(f).

Previously, in the case of In Re Cunningham, et al., 17 B.R. 463 (Bkrtcy.Ky.,1981), this Court found that a nonpossessory, non-purchase money lien on exempt property of the debtor consummated after November 6, 1978 (the date of enactment of the Bankruptcy Reform Act of 1978), is avoidable by debtors, does not deprive creditors of due process, and thus 11 U.S.C. § 522(f) has constitutionally permissible application to those liens.

Employing the standard of Cunningham, supra, a determination then becomes necessary as to the date upon which a security interest was granted pursuant to the provisions of the Uniform Commercial Code as adopted by the State of Kentucky in Chapter 355 of the Kentucky Revised Statutes, specifically KRS 355.9-101, et seq., and state and federal decisional law.

The history of the transaction or transactions in question is undisputed and is essentially a similar circumstance to the case of In Re Fulkerson, 17 B.R. 207 (Bkrtcy.Ky., 1982). The exact dates and amounts of the instant case, as well as other facts, are distinguishable, but in essence the identical issue is presented. Therefore, finding that the reasoning in Fulkerson, supra, is applicable to the pending issue, that case is attached and incorporated by reference as if set out in full herein.

This Memorandum and Order constitutes Findings of Fact and Conclusions of Law pursuant to Rule 752, Rules of Bankruptcy Procedure.

WHEREFORE, IT IS ORDERED AND ADJUDGED that the lien on household goods of Peoples Security Finance Company be and is subject to avoidance pursuant to [8]*811 U.S.C. § 522(f) and In Re Cunningham, et al.

IT IS FURTHER ORDERED AND ADJUDGED that the debtor’s motion to avoid the lien of Peoples Security Finance Company be and is sustained.

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MEMORANDUM AND ORDER

STEWART E. BLAND, Bankruptcy Judge.

This bankruptcy case comes before the Court on objection of a creditor, Peoples Security Finance Company, by counsel, to the avoidance of its lien by the debtor pursuant to 11 U.S.C. § 522(f).

Previously, in the case of In Re Cunningham, et al., 17 B.R. 463 (Bkrtcy.Ky.,1981), this Court found that a nonpossessory, non-purchase money lien on exempt property of the debtor consummated after November 6, 1978 (the date of enactment of the Bankruptcy Reform Act of 1978), is avoidable by debtors, does not deprive creditors of due process, and thus 11 U.S.C. § 522(f) has constitutionally permissible application to those liens.

Employing the standard of Cunningham, supra, a determination then becomes necessary as to the date upon which a security interest was granted pursuant to the provisions of the Uniform Commercial Code as adopted by the State of Kentucky in Chapter 355 of the Kentucky Revised Statutes, specifically KRS 355.9-101, et seq., and state and federal decisional law.

The history of the transaction or transactions in question is undisputed and is essentially a similar circumstance to the case of In Re Fulkerson, 17 B.R. 207 (Bkrtcy.Ky., 1982). The exact dates and amounts of the instant case, as well as other facts, are distinguishable, but in essence the identical issue is presented. Therefore, finding that the reasoning in Fulkerson, supra, is applicable to the pending issue, that case is attached and incorporated by reference as if set out in full herein.

This Memorandum and Order constitutes Findings of Fact and Conclusions of Law pursuant to Rule 752, Rules of Bankruptcy Procedure.

WHEREFORE, IT IS ORDERED AND ADJUDGED that the lien on household goods of Peoples Security Finance Company be and is subject to avoidance pursuant to [8]*811 U.S.C. § 522(f) and In Re Cunningham, et al.

IT IS FURTHER ORDERED AND ADJUDGED that the debtor’s motion to avoid the lien of Peoples Security Finance Company be and is sustained.

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27 B.R. 7, 1982 Bankr. LEXIS 4169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-proctor-kywd-1982.

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