In Re Spears

744 F.2d 1225, 11 Collier Bankr. Cas. 2d 438, 1984 U.S. App. LEXIS 18216, 12 Bankr. Ct. Dec. (CRR) 475

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 26, 1984
• Docket: 83-3807
• Status: Published

Opinion

744 F.2d 1225

11 Collier Bankr.Cas.2d 438, 12 Bankr.Ct.Dec. 475,
Bankr. L. Rep. P 70,049

In re David Alan SPEARS; Nellie Catherine Spears; a/k/a
Kitty Spears, a/k/a Catherine Spears, Debtors.
David Alan SPEARS; Nellie Catherine Spears, a/k/a Kitty
Spears, a/k/a Catherine Spears, Debtors-Appellees,
v.
THORP CREDIT, INC., OF OHIO, Creditor-Appellant.

No. 83-3807.

United States Court of Appeals,
Sixth Circuit.

Argued Aug. 20, 1984.
Decided Sept. 26, 1984.

D.L. Mains, Jr., Columbus, Ohio, E. Bruce Hadden, argued, Worthington, Ohio, for creditor-appellant.

Ric Daniell, Columbus, Ohio, for debtors-appellees.

Before ENGEL and KENNEDY, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

PER CURIAM.

Thorp Credit Inc., of Ohio (Thorp) appeals from the judgment entered by the Bankruptcy Court granting the motion of the debtors David Alan Spears and Nellie Catherine Spears to avoid the lien on their household goods held by Thorp.

This Court has held in In re Pine, 717 F.2d 281, 284 (6th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1711, 80 L.Ed.2d 183 (1984), that when a state has opted out under 11 U.S.C. Sec. 522(b) of the application of the federal exemptions, "debtors may avoid liens only on that property which the states have declared to be exempt." Under Ohio law, a debtor may exempt only an interest in property that is not subject to any third party liens. Ohio Rev. Code Ann. Secs. 2329.66, 2329.661 (Page 1981). Accordingly, the debtors in this case may not avoid Thorp's lien on their household goods.

We therefore reverse the judgment of the Bankruptcy Court and remand for further proceedings.