In Re Weatherspoon

101 B.R. 533, 21 Collier Bankr. Cas. 2d 346, 1989 Bankr. LEXIS 1014, 1989 WL 69392
CourtUnited States Bankruptcy Court, N.D. Illinois
DecidedJune 22, 1989
Docket15-35290
StatusPublished
Cited by26 cases

This text of 101 B.R. 533 (In Re Weatherspoon) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Weatherspoon, 101 B.R. 533, 21 Collier Bankr. Cas. 2d 346, 1989 Bankr. LEXIS 1014, 1989 WL 69392 (Ill. 1989).

Opinion

MEMORANDUM OPINION

RONALD S. BARLIANT, Bankruptcy Judge.

The Debtors in these two Chapter 7 cases brought what they thought were routine motions to avoid judicial liens under section 522(f)(1) of the United States Bankruptcy Code. That section authorizes the avoidance of judicial liens that would impair a debtor’s right to claim property as exempt. Such motions are usually granted without objection. The two creditors who hold the liens here (both represented by the same law firm) did object to these motions, believing that it is time for a change in the law. Notwithstanding the vigorous arguments of the creditors’ counsel, this Court will grant the motions to avoid the liens.

FACTS

The facts in both contested matters are substantially similar. 1 The judgment creditors here, Citicorp Acceptance in the Weatherspoon matter and Northwest Memorial Hospital in the Ramirez matter, hold judgments against the Debtors. Before these bankruptcy cases were commenced, the judgment creditors caused wage deduction summonses to be served upon the Debtors’ employers. In addition, Citicorp caused a citation to discover assets to be served on the First National Bank of Chicago, where Mr. Weatherspoon maintained a checking account. The Debtors’ employers duly withheld portions of the Debtors’ wages pursuant to the wage deduction summonses. 2 The bank also withheld funds from Mr. Weatherspoon’s checking account pursuant to the citation to discover assets. 3

After the citation and the summonses had been served and funds withheld, both Debtors filed voluntary petitions under Chapter 7 of the Bankruptcy Code. The Debtors then filed motions to avoid the liens imposed on their wages and on the checking account by the post-judgment collection processes. The Debtors contend, and the creditors do not deny, that, were it not for these liens, they could claim the funds as exempt. Thus, if the motions are granted, the Debtors will get the funds now held by the employers and bank to facilitate their “fresh start.” If the motions are denied, the funds will go to the judgment creditors in partial satisfaction of debts that will otherwise be discharged.

*535 DISCUSSION

The issues here concern the application of 11 U.S.C. § 522(f)(1), which authorizes the Debtors to avoid “judicial liens” that impair exemptions. That section provides:

(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; ...

The judgment creditors argue that the liens created by the post-judgment collection process are not judicial liens, but statutory liens, and consequently are unavoidable under section 522(f)(1). The judgment creditors also argue that service of the wage deduction summonses and the citation to discover assets worked an immediate transfer of the affected funds that divested the Debtors of all interest in those funds. Since lien avoidance under section 522(f)(1) requires that the Debtors had some interest in the encumbered property when the bankruptcy case was commenced. See In re Johnson, 53 B.R. 919, 922 (Bankr.N.D.Ill.1985), the judgment creditors contend that the alleged absolute transfers upon service of the summonses and the citation render section 522(f)(1) inapplicable. This Court rejects both arguments.

1. JUDICIAL VS. STATUTORY LIEN

The judgment creditors correctly state that “the garnishment process [in Illinois] is purely a creature of statute.” Taylor v. Taylor, 44 Ill.2d 139, 144, 254 N.E.2d 445, 448 (1969); Roth v. Kaptowsky, 401 Ill. 424, 82 N.E.2d 661 (1948). That does not mean, however, that the lien on garnished funds is a “statutory lien” rather than a “judicial lien” for purposes of section 522(f)(1) of the Bankruptcy Code.

Section 101(32) of the Bankruptcy Code provides:

“judicial lien” means lien obtained by judgment, levy, sequestration or other legal or equitable process or proceeding.

By contrast, section 101(47) of the Bankruptcy Code (emphasis added) provides:

“statutory lien” means lien arising solely by force of a statute on specified circumstances or conditions, or lien of distress for rent, whether or not statutory, but does not include security interest or judicial lien, whether or not such interest or lien is provided by or is dependent on a statute and whether or not such interest or lien is made fully effective by statute.

Neither the lien on wages nor the alleged lien on the bank account arose solely by force of a statute. The statutes merely authorized the liens that arose through the judgment process. Moreover, the judgment creditors’ liens fall squarely within the exceptions to a “statutory lien” under the Code. A “statutory lien” does not include a “judicial lien, whether or not such ... lien is provided by or dependent on a statute.” The judgment creditors’ garnishment and citation liens are judicial liens because they arise by virtue of the judicial proceedings and the service of process on the employers and the bank. Without the judicial proceedings and service of process, the judgment creditors’ liens would not exist. That distinguishes judicial liens from statutory liens. “A statutory lien is only one that arises automatically, and is not based on ... judicial action.” H.R.Rep. No. 595, 95th Cong, 1st Sess. 314 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 27 (1978), U.S.Code Cong. & Admin.News 5787, 5813, 6271 (emphasis added). Examples of statutory liens which arise automatically are tax liens, mechanics’ liens, and warehousemen’s liens, none of which require prior judicial proceedings. Id.; Colliers on Bankruptcy, II 101.47 at 101-112 (15th Ed.1988).

The wages that are the object of these contested matters are held pursuant to Ill. Rev.Stat. ch. 110 Article XII, Part 8. Section 12-805 establishes the procedures for issuance of a summons in a wage deduction proceeding. A judgment creditor must file an affidavit and interrogatories with the Clerk of the Court, who will then issue a summons against the judgment debtor’s employer. That section also requires that “a copy of the underlying judgment or *536 certification by the Clerk of the Court which entered the judgment, or by the attorney for the judgment creditor, setting forth the amount of the judgment, the name of the Court and the number of the case” shall accompany the summons. Ill. Rev.Stat. ch. 110 § 12-805.

Section 12-808 provides that “[t]he judgment or balance due thereon is a lien on wages due at the time of the service of summons ... except that such lien ... shall terminate ...

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Cite This Page — Counsel Stack

Bluebook (online)
101 B.R. 533, 21 Collier Bankr. Cas. 2d 346, 1989 Bankr. LEXIS 1014, 1989 WL 69392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-weatherspoon-ilnb-1989.