In re Showinsky

117 B.R. 284, 1990 Bankr. LEXIS 1627, 1990 WL 109627
CourtDistrict Court, W.D. Michigan
DecidedJuly 31, 1990
DocketBankruptcy No. HM 90-90086
StatusPublished

This text of 117 B.R. 284 (In re Showinsky) is published on Counsel Stack Legal Research, covering District Court, W.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Showinsky, 117 B.R. 284, 1990 Bankr. LEXIS 1627, 1990 WL 109627 (W.D. Mich. 1990).

Opinion

OPINION

WILLIAM S. HOWARD, Bankruptcy Judge.

This opinion was originally issued orally from the bench on July 25, 1990. As it addressed a highly topical area of bankruptcy law, it is now being supplemented with this written opinion.

FACTS

The Debtor and his former wife, Lisa Lesperance, were married for approximately 15 years. In the latter part of 1988, the Debtor was sued for divorce. On March 7, 1989, the parties had an uncontested final divorce hearing, at which time the terms of their settlement were put on the record. As evidenced by the transcript of that hearing, the Debtor was to receive the marital home and was to pay $10,000 to Ms. Les-perance within 30 days of entry of the final order, in anticipation of refinancing the home. If the money was not paid within that time period, interest was to accrue at the rate of 12% per annum. On July 5, 1989, the parties’ divorce judgment was entered by the Circuit Court for Dickinson County, Michigan.

As it turned out, the Debtor was not successful in his attempt to refinance the home, and so he did not make the $10,000 lump sum payment. On March 8, 1990, pursuant to the terms of the divorce, Ms. Lesperance quit-claimed her interest in the marital home to the Debtor, and she also reserved a lien in the deed for $10,000 plus 12% per annum interest.

On March 26, 1990, the divorce judgment was amended to provide that the $10,000 payment and accrued interest “shall be alien [sic] on the real estate awarded to the Defendant” and that the “award may be recorded as a lien against the above described property by the recording [of] this Judgment in the Register of Deeds Office or by filing a lien.” Amended Divorce Judgment at 3, Showinsky v. Showinsky (No. D88-6089-DM).

On April 6, 1990, the Debtor filed his Chapter 7 bankruptcy petition. In his schedules, the home is listed at a market value of $38,000, with Manufacturer’s Hanover Services holding a first mortgage for approximately $23,000. In addition, the Debtor listed Ms. Lesperance as a creditor to whom he owed a debt of $10,000 plus interest, secured by the house. Also, under 11 U.S.C. § 522(b), the Debtor elected to utilize the federal exemptions, and has claimed $6,566 pursuant to 11 U.S.C. § 522(d)(1).

On May 11, 1990, the Debtor filed a motion to avoid Ms. Lesperance’s lien, pursuant to 11 U.S.C. § 522(f). On May 21, 1990, Ms. Lesperance filed a motion objecting to the Debtor’s claim of exemptions. A hearing was held on the related matters on May 23, 1990. At that time, counsel for the Debtor stated that there is currently a purchase agreement on the home for $36,-500. That hearing was adjourned until July 25, 1990, so that the parties could brief the legal issue of whether the lien arising out of the parties’ property settlement can be avoided under § 522(f). Since that time, both parties have submitted briefs.

LIEN AVOIDANCE UNDER § 522(f)

First, I would like to mention that the Sixth Circuit has not issued a decision on this issue, but at least four other circuits have ruled on it. In three cases, the liens were avoided: In re Sanderfoot, 899 F.2d 598 (7th Cir.1990); In re Pederson, 875 F.2d 781 (9th Cir.1989); and Maus v. Maus, 837 F.2d 935 (10th Cir.1988). In one case, Boyd v. Robinson, 741 F.2d 1112 (8th Cir.1984), the Court refused to recognize the former spouse’s lien as a § 522(f) judicial lien. While these decisions are helpful, they are not conclusive. The quirks of divorce law vary from state to state, and each one of these decisions was based in part on the statutes from the rendering state and the divorce proceedings themselves. Therefore, the ultimate resolution of the dispute before me lies in the statutes of this state regarding divorce proceedings and the divorce judgment between these [286]*286two parties, as they are determinative of the nature of Ms. Lesperance’s lien. Those two items will determine whether the Debt- or can now implement § 522(f). In addition, under 28 U.S.C. § 1738, this Court must give full faith and credit to the state court judgment to the same extent as would Michigan courts.

The parties dispute whether Ms. Lesperance’s lien is a judicial lien as contemplated by § 522(f). For the purposes of this opinion, the relevant portion of that section states:

(f) 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 which the debtor would have been entitled under subsection (b) of this section, if such lien is—
(1) a judicial lien;

That language gives rise to three requirements: first, the lien must have attached to an interest of the Debtor in property; second, that the lien impairs an exemption of the Debtor’s; and third, that the lien is a judicial lien. Sanderfoot at 601. Ms. Les-perance contends that none of these requirements are met, while the Debtor takes the opposite position, asserting that all three requirements have been met.

1. Does the lien attach to an interest of the Debtor in property?

As to the first requirement, Ms. Lesperance contends that her original interest in the home survived the divorce proceeding and is protected by her lien. The Debtor disagrees, contending that the property settlement extinguished her interest in the home, and that her lien attached to his interest in the home. To resolve that dispute, I would like to quote some relevant exchanges from the transcript of the final divorce hearing. The first series of exchanges were between Ms. Lesperance and her attorney:

Q: And you would also receive a cash sum payment from your husband of $10,000?
A: Yes.
* j)s sfc :js
Q: And you would receive a mortgage against — basically a second mortgage against the home. Do you understand that?
A: Yes.
* * * * * *
Q: With regard to the items that your husband will receive, he will receive the home?
A: Yes.
Q: Subject to your mortgage, is that your understanding?
A: Yes, it is.
[[Image here]]
Q: You hesitated when we reached the sum of $10,000 that’s to be awarded to you. Basically, the way we reached that is by totalling all the assets and dividing it in two, is that correct?
A: Yes.

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

Related

Cite This Page — Counsel Stack

Bluebook (online)
117 B.R. 284, 1990 Bankr. LEXIS 1627, 1990 WL 109627, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-showinsky-miwd-1990.