In Re Sullins

135 B.R. 288, 1991 WL 285293
CourtUnited States Bankruptcy Court, S.D. Ohio
DecidedDecember 31, 1991
DocketBankruptcy 3-90-04256
StatusPublished
Cited by7 cases

This text of 135 B.R. 288 (In Re Sullins) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Sullins, 135 B.R. 288, 1991 WL 285293 (Ohio 1991).

Opinion

THOMAS F. WALDRON, Bankruptcy Judge.

This proceeding arises in a case referred to this court by the Standing Order Of Reference entered in this district on July 30, 1984, and is determined to be a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) — matters concerning the administration of the estate, (K) — determinations as to the validity or extent or priority of liens, and (0) — other proceedings affecting the debtor — creditor relationship. The court is authorized to enter a final judgment and will do so.

The following constitutes the court’s findings of fact and conclusions of law in accordance with Bankr.R. 7052; however, it should be noted that there was no testimony received from any witnesses in this case, nor were any documents admitted.

The evidence consists of the debtors’ motion to avoid lien titled Motion To Avoid Lien Under 11 U.S.C. § 522(f) (Doc. 25) filed on July 3, 1991, and the Answer of General Credit Company of Ohio, Inc. To Avoid Debtors’ Motion To Avoid Lien Under 11 U.S.C. § 522(f) (Doc. 26) filed July 9, 1991.

The parties, through counsel, agreed that the items that the debtors claimed to be exempt, would, in fact, fit within the provision of Ohio Revised Code § 2329.66 both as to their individual amounts and as to the total amount claimed. That is, the debtors’ claimed exemptions would not exceed the total allowable exemption under Ohio law.

This issue presented in this proceeding was best summarized at the end of the colloquy between the court and counsel in the statement that, “but for the existence of the lien on these items of property, they would, in fact, be exempt property of the debtor.”

This court recognizes that examining and relying on footnotes in Supreme Court decisions could represent inappropriate and undesirable activities by a trial court; however, in connection with the issues presented in this proceeding, such examination and reliance is an appropriate component of the court’s total analysis. As a leading commentator observed, “[a]ll other American courts, state and federal, owe obedience to the decisions of the Supreme Court of the United States on questions of federal law, and a judgment of the Supreme Court provides the rule to be followed in all such courts until the Supreme Court sees fit to reexamine it.” IB Moore’s Federal Practice para. o.402(l) (2d ed. 1991) (footnote omitted).

This principle, although in connection with a different issue, was recently applied by the bankruptcy court for the Middle District of Florida in In re Jolly, 124 B.R. 365 (Bankr.M.D.Fla.1991). The issue discussed in Jolly involved the standards for the burden of proof in dischargeability proceedings under § 523. In that case, the bankruptcy court in Florida acknowledged that the burden of proof to be applied was “preponderance of the evidence” and not “clear and convincing evidence” which was the standard announced by the Eleventh Circuit Court of Appeals. The Florida bankruptcy court recognized that Grogan v. Garner, — U.S. —, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) provides the law which must be followed, even though the circuit court governing the Florida bankruptcy court had not reversed or rescinded its decisions setting forth “clear and convincing evidence” as the applicable legal standard.

We turn to the recently decided Supreme Court case, Owen v. Owen, — U.S. —, 111 S.Ct. 1833, 114 L.Ed.2d 350 (1991), which engenders the present controversy. Without dwelling on the facts of Owen, it essentially involved the application of the Florida homestead exemptions law to a parcel of real estate; however, the applicability of Owen is broader than its particular facts. Such an application of a Supreme Court decision is not uncommon, since it is the very mission of the Supreme Court to attempt to reconcile inconsistent or contrary decisions from various courts of appeals or other courts in the United States and to provide a uniform decision which will allow inferior courts to determine not *290 only factual issue identical to the facts in the Supreme Court decision, but through application of the principles extracted from the Supreme Court decision to determine similar controversies that would be governed by these principles.

Owen states that property which is properly exempted under § 522 is, with some exceptions not relevant here, immunized against liability for prebankruptcy debts. Further, § 522, which applies in all chapters including chapter 13, because it is a federal law, would, pursuant to the Supremacy Clause prevail over contrary state laws. Owen states, “[o]nly where the Code empowers the court to avoid liens or transfers can an interest originally not within the estate be passed to the estate, and subsequently (through the claim of an exemption) to the debtor.” Ill S.Ct. at 1836. Additionally, it must be recognized that § 522(f) applies not only in § 522(f)(1) to judicial liens, but in § 522(f)(2) to a nonpos-sessory, nonpurchase-money security interest. The parties in this proceeding have agreed that the security interest in this case is a nonpossessory, nonpurchase-mon-ey security interest.

The controversy arises as a result of two prior Sixth Circuit decisions, In re Pine, 717 F.2d 281 (1983) and In re Spears, 744 F.2d 1225 (1984). This court believes that, under the analysis employed in Owen, these circuit decisions no longer control the resolution of motions pursuant to § 522(f). See Owen, 111 S.Ct. at 1836, n. 1. The Spears decision does correctly states the law of Ohio with regard to exemptions when it declares, “[ujnder Ohio Law a debt- or may exempt only an interest in property that is not subject to any third party liens.” Spears at 1225; O.R.C. § 2329.66. Owen states:

The uniform practice of bankruptcy courts, however, is to the contrary. To determine the application of § 522(f) they ask not whether the lien impairs an exemption to which the debtor is in fact entitled but whether it impairs an exemption to which he would have been entitled, but for the lien itself.

Owen, 111 S.Ct. at 1836-37 (emphasis in original, footnote omitted). The text of Owen further notes that the avoidance powers under § 522(f) apply equally to motor vehicles, household goods, and tools of the trade.

This reading must also be accepted, at least with respect to the federal exemptions, if § 522(f) is not to become an irrelevancy with respect to the most venerable, most common and most important exemptions.

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

Related

In Re Cushman
183 B.R. 139 (N.D. Ohio, 1995)
In Re Boswell
148 B.R. 31 (N.D. Ohio, 1992)
In Re Moreland
142 B.R. 221 (S.D. Ohio, 1992)
In Re Wheeler
140 B.R. 446 (N.D. Ohio, 1992)
In Re Puhl
136 B.R. 487 (N.D. Ohio, 1992)
In Re Wink
137 B.R. 297 (W.D. Wisconsin, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
135 B.R. 288, 1991 WL 285293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-sullins-ohsb-1991.