In re Raymond

103 B.R. 846, 1989 Bankr. LEXIS 1485, 1989 WL 103217
CourtDistrict Court, W.D. Kentucky
DecidedMay 15, 1989
DocketBankruptcy No. 4-88-00829
StatusPublished

This text of 103 B.R. 846 (In re Raymond) 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.

Bluebook
In re Raymond, 103 B.R. 846, 1989 Bankr. LEXIS 1485, 1989 WL 103217 (W.D. Ky. 1989).

Opinion

MEMORANDUM OPINION

J. WENDELL ROBERTS, Bankruptcy Judge.

In this chapter 7 case, the court considers the debtors’ motions to avoid consensual nonpossessory, nonpurchase money liens asserted by USA Financial Services (hereinafter, “USA”) and ITT Financial Services (hereinafter, “ITT”) against certain items of the debtors’ personal property. Objections to the motions were duly filed by counsel for USA and ITT and on May 2, 1989, a hearing was conducted. For the reasons which follow, we will overrule the debtors’ motions.

Before beginning our analysis of the potential voidability of liens against the debtors’ property, we observe that motions to avoid nonpossessory, nonpurchase money liens on personal property have become increasingly common in this District. Because the avoidance of such liens is deceptively more complex than it would first appear, and because there is apparent misunderstanding of the manner in which such [847]*847avoidance actions must be taken, we are issuing this opinion with the objective of informing the Bar as to the correct procedural method by which the instant variety of lien avoidance motion will be entertained.

The facts of this case are not disputed and may be briefly summarized as, follows. On January 27, 1987, in consideration of a loan of $2825.15, the debtors granted USA a lien on four rifles, a 13" General Electric color television, a Pioneer 8-Track AM/FM stereo and a fireplace insert. Thereafter, on June 9, 1987, the debtors borrowed money from ITT and granted to it a security interest in a General Electric 26" color television, a General Electric YHS tape recorder and a Pioneer stereo. The debtors subsequently sought chapter 7 relief on January 11, 1989 and now seek to avoid the liens attached to the personal property listed herein, with the exception of the firearms, pursuant to the provisions of 11 U.S.C. § 522(f).

Avoidance of nonpossessory, nonpur-chase money liens on personal property necessarily begins as a matter of procedure. In this case the first issue we must address is whether lien avoidance may be decided by the court upon motion or whether an adversary proceeding is required. This is an issue which exemplifies the often curious relationship between the Kentucky Revised Statutes, the Bankruptcy Code and the Rules of Bankruptcy Procedure. It is complicated significantly by Kentucky’s mandatory exemption scheme which we will analyze in the following paragraphs.

11 U.S.C. § 522(b)(1) allows any state to avoid utilizing the federal exemption statute codified at 11 U.S.C. § 522(d), in instances where the state expressly elects to “opt out” of the federal exemption provisions and, in substitution, enacts its own exemption statutes. In 1980, the Kentucky legislature enacted K.R.S. 427.170, making Kentucky an “opt out” jurisdiction. Accordingly, we must apply the Kentucky state exemption statute in our bankruptcy cases; section 522(d) exemptions are not alternatively available to Kentucky debtors.

Fed.R.Bankr.Pro. 7001(2) requires that an adversary proceeding be initiated by a party who seeks to have the court determine, “... the validity, priority, or extent of a lien or other interest in property, other than a proceeding under Rule 4003(d).” When we review the text of Rule 4003(d), we find the following,

“A proceeding by the debtor to avoid a lien or other transfer of property exempt under § 522(f) of the Code shall be by motion in accordance with Rule 9014.”

Unfortunately, Rule 4003(d) does not conclude our inquiry. Because section 522(f) allows avoidance of nonpossessory, nonpur-ehase money liens on household goods, it would appear that such liens could be avoided by motion rather than by adversary proceeding. This is, however, not the case. A close reading of section 522(f) discloses why this is not so, as it provides,

“Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to property which the debtor would have been entitled under subsection (b) of this section, if such lien is—
... (2) a nonpossessory, nonpurchase money security interest in any—
(A) household furnishing, household goods, wearing apparel, appliances, books, animals, crops, musical instruments, or jewelry that are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor.” [emphasis supplied.]

As noted above, section 522(f) refers to the exemptions available to the debtor under section 522(b). For Kentucky debtors this means the state exemption statutes, K.R.S. Chapter 427. Included as part of Kentucky’s exemption scheme is K.R.S. 427.010(4) which provides,

“Notwithstanding any other provision of law, no property upon which a debtor has voluntarily granted a lien shall, to the extent of the balance due on the debt secured thereby, be subject to the provisions of this chapter or be exempt from forced sale under process of law.”

[848]*848The liens here in issue are typical of those consensual liens granted by individuals to consumer finance companies. As the liens are voluntary, the debtor is not entitled, under Kentucky law, to exempt property subject to such liens. Since the debtor is not entitled to an exemption to begin with, no exemption can be impaired. An exemption must be impaired before section 522(f) applies. Since Rule 4003(d) allows lien avoidance by motion only in instances where section 522(f) applies, is not available to the debtor. Bankruptcy Rule 7001 is therefore the applicable rule and it requires the filing of an adversary proceeding.

In this court’s view, the requirement of the filing of an adversary proceeding is a harsh, and likely unintended, result of the Kentucky legislature’s “opt out” of the federal exemption scheme. We note that, when a debtor seeks to avoid a nonposses-sory, nonpurchase money lien on personal property, the value of the property sought to be retained is usually quite small, and is more valuable to the debtor than to anyone else. Frequently, the value of the property sought to be freed from liens is less than the $120.00 fee charged by the Clerk of the Bankruptcy Court for the filing of an adversary proceeding.!1! Considering the fact that adversary proceedings require more attorney preparation than motions and considering the fact that the debtor will have to bear this expense also, the cost of lien avoidance, at least where household goods are involved, becomes prohibitive for many debtors. Bankruptcy Rule 1001 provides,

“... These rules shall be construed t,o secure the expeditious and economical administration of every case under the Code and the just, speedy, and inexpensive determination of every proceeding therein.”

We believe that Rule 1001 was designed to permit the court the discretion to insure that those who seek the protection of the bankruptcy laws are not treated unfairly.

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Related

Exemptions
11 U.S.C. § 522(f)

Cite This Page — Counsel Stack

Bluebook (online)
103 B.R. 846, 1989 Bankr. LEXIS 1485, 1989 WL 103217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-raymond-kywd-1989.