Marino v. Stroehmann Bros. Co. (In re Marino)

39 B.R. 830, 1984 Bankr. LEXIS 5734
CourtDistrict Court, M.D. Pennsylvania
DecidedMay 7, 1984
DocketBankruptcy No. 5-83-00587
StatusPublished
Cited by1 cases

This text of 39 B.R. 830 (Marino v. Stroehmann Bros. Co. (In re Marino)) is published on Counsel Stack Legal Research, covering District Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marino v. Stroehmann Bros. Co. (In re Marino), 39 B.R. 830, 1984 Bankr. LEXIS 5734 (M.D. Pa. 1984).

Opinion

OPINION AND ORDER

THOMAS C. GIBBONS, Bankruptcy Judge:

The debtors, Thomas A. Marino and Edith M. Marino (debtors), commenced this proceeding to avoid a judicial lien pursuant to § 522(f)(1) of the Bankruptcy Code. For the reasons provided herein, we grant the relief requested.

FINDINGS OF FACT

1. On July 24, 1975, Thomas A. Marino, the male debtor, entered into an employment contract with Stroehmann Brothers Company (Stroehmann).

2. The contract provided that Stroeh-mann would pay for Marino’s job training in return for his commitment to remain working for Stroehmann for a five (5) year period. The contract further provided that if Marino terminated his employment prior to the five year period, he was required to repay Stroehmann for all expenses incurred on his behalf at the rate of l/60th of the total expenses for each month remaining on the contract at the time the employment was terminated.

3. On September 30, 1978, with 27 months remaining on Marino’s 60 month obligation, he voluntarily and without the consent of his employer terminated his employment.

4. On October 22,1979, Thomas A. Mar-ino transferred a 1979 Pontiac Grand Prix titled to his name to John Powell Chevrolet as a trade-in for a 1980 Chevrolet Chevette. The Chevette was registered to the name of Edith M. Marino.

5. At the time of the transfer, Thomas A. Marino had equity in the Grand Prix of One Thousand Nine Hundred Seventy-Nine and 97/100 ($1,979.97) Dollars.

6. Stroehmann obtained a judgment against Thomas A. Marino in the amount of Two Thousand Seventeen and 17/100 ($2,017.17) Dollars at an Arbitration Hearing held on November 13, 1979.

7. Stroehmann filed an action in equity in the Court of Common Pleas of Lycoming County, Pennsylvania, to No. 81-0477 requesting the Court to declare a lien on the 1980 Chevrolet Chevette. On December 21, 1982, the Court ordered that the con[832]*832veyance of the equity in the 1979 Grand Prix from Thomas A. Marino to Edith M. Marino be set aside and that a lien in the amount of $1,979.97 be placed on the 1980 Chevrolet Chevette registered in the name of Edith M. Marino.

8. Debtors filed their voluntary petition for relief under Chapter 7 of the Bankruptcy Code.

9. Debtors claim the 1980 Chevrolet Chevette as exempt property pursuant to 11 U.S.C. § 522(d).

10. The automobile has a fair market value of Three Thousand Five Hundred ($3,500.00) Dollars.

11. Debtors filed the Motion to Avoid a Judicial Lien on December 22, 1983.

DISCUSSION

The parties stipulated that this Motion to Avoid a Judicial Lien be adjudicated on the following issues:

1. Whether the lien entered by the Court of Common Pleas of Lycoming County is a judicial lien under the Bankruptcy Code; and

2. Whether debtors can stack the exemptions under 11 U.S.C. § 522(d)(2) and (d)(5).

Debtors contend that Stroehmann’s lien should be completely avoided because it impairs the exemptions they are entitled to under 11 U.S.C. § 522(d)(2) and (d)(5). Stroehmann responds that the lien entered by the Common Pleas Court of Lycoming County is not a judicial lien under the Bankruptcy Code, but rather is a security agreement and, therefore, not subject to avoidance pursuant to § 522(f)(1). In addition, Stroehmann also argues the debtors may not aggregate exemptions to avoid the lien because their equity in the car is less than the value of the lien and claimed exemptions are restricted to the amount of equity in the subject property.

In addressing the first issue, we are asked to determine if a judgment entered by a State Court creating a lien on an automobile owned by the male debtor is a judicial lien as contemplated by § 522(f)(1). That section states as follows:

(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; or

The Bankruptcy Code defines judicial lien as a “lien obtained by judgment, levy, sequestration, or other legal or equitable process or proceeding.” 11 U.S.C. § 101(27). A security interest is defined as a “lien created by an agreement.” 11 U.S.C. § 101(37). Section 101(28) defines “lien.” The legislative history behind § 101(28) provides that “in general, the concept of lien is divided into three kinds of liens: judicial liens, security interest, and statutory liens. Those three categories are mutually exclusive and are exhaustive except for certain common law liens.” H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 312 (1977); S.Rep. No. 95-989, 95th Cong., 2nd Sess. 25 (1978), reprinted in 1978 U.S.Code & Cong. & Ad.News 5787, 5811.

Stroehmann asserts that the judgment lien entered by the Common Pleas Court has created a hybrid situation in that “attributes of both a judicial lien and security interest are present.” Stroehmann relies on the case of Rosen v. Alderson (Matter of Rosen), 34 B.R. 648 (Bkrtcy.E.D.Wis.1983). The Rosen Court citing Commonwealth National Bank v. United States (In re Ashe), 669 F.2d 105 (3rd Cir.1982), instructed that “before the lien may be avoided, prevailing law dictates inquiry into how the lien was created.” In Rosen, the parties agree that Alderson should have a lien on Rosen's homestead and that a divorce court should give effect to the agreement by entering a judgment which would only become a lien against the homestead. In addition, the Court noted that the lien could not attach to debtor’s unspecified real estate, but rather to a particular piece of property. Stroehmann argues that this case is much like the Rosen cáse because [833]*833the lien is also created by consent. Stroeh-mann finds the consent to create a lien in the contractual terms by which the male debtor agreed to accept financial responsibility to repay Stroehmann for all expenses incurred on his behalf at the rate of l/60th of the total expenses for each month period remaining on the contract at the time the employment was terminated. Stroehmann directs our attention to the following clause of the employment contract to support its contention that the lien was created by consent:

4. In the event Employee, voluntarily and without the consent of the Employer, terminates his employment with Employer prior to the completion of said sixty (60) month period, Employee shall be indebted to and shall repay Employer for the expenses incurred on Employee’s behalf in connection with the aforesaid training course at the rate of one-sixtieth (l/60th) of said expenses for each month of the sixty (60) month period remaining at the time of the termination of Employee’s employment.

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Cite This Page — Counsel Stack

Bluebook (online)
39 B.R. 830, 1984 Bankr. LEXIS 5734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marino-v-stroehmann-bros-co-in-re-marino-pamd-1984.