Home/S.D. Ohio/Matter of Lewis

Matter of Lewis

38 B.R. 113
CourtUnited States Bankruptcy Court, S.D. Ohio
DecidedFebruary 23, 1984
DocketBankruptcy 3-83-02635
StatusPublished
Cited by11 cases

This text of 38 B.R. 113 (Matter of Lewis) 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
Matter of Lewis, 38 B.R. 113 (Ohio 1984).

Opinion

CHARLES A. ANDERSON, Bankruptcy Judge.

Debtors filed their voluntary petition for relief in accordance with Chapter 7 of the Bankruptcy Code on 7 November 1983. The matter is now before the court upon Debtors’ motion to avoid a nonpossessory, non-purchase money security interest impairing their exemptions in “household and personal goods” to which they would be entitled under 11 U.S.C. 522(b).

The only facts submitted in the case sub judice relating to the property claimed as exempt are contained in the debtors’ Schedules filed with their petition. Thorp is listed as a secured creditor for a debt in the amount of $4500.00 with a security interest on “household furniture described on Schedule B-2-C” valued at $680.00. The claim arose out of the purchase of “building materials”. The list of household goods is, as follows:

water bed 200.00
couch 100.00
rocker chair 25.00
love seat 50.00
regular chair 25.00
coffee table 15.00
end tables (2) 20.00
foot stool 10.00
lamps (2) 20.00
freezer 25.00
dryer 25.00
stereo console 50.00
dishes, pots, pans 50.00
camera 35.00
TV ' 50.00
$680.00

In Schedule B-4, the debtors claimed exemptions under the Ohio statutes. On 2 December 1983 Thorp Credit, Inc. of Ohio (Thorp), the secured creditor, filed a “Mem *114 orandum in Opposition” to the lien avoidance citing the decision of the United States Sixth Circuit Court of Appeals, In re Pine (1983) 717 F.2d 281, CCH Bkrtcy.L. Rptr. ¶ 69357. Thorp argues, as follows: “The Giles [Pine ] case ... does not restrict its ruling to only Georgia, Tennessee and Louisiana. The rationale of the Sixth Circuit may be read to apply to any state, such as Ohio, which has ‘opted out’ of the Federal Exemptions. Section 522(f) of the Code preserves exemptions to the extent to which the debtor would otherwise be entitled under Section 522(b)_ In Ohio, under Ohio Revised Code 2329.661(c), the security interest in collateral cannot be effected [sic] or invalidated by the debtors state exemptions.”

In behalf of Debtors it is argued as follows: “Ohio’s ‘opt out’ Provision, Section 2329.662, was repealed on September 28, 1983. The debtors filed their petition on November 7, 1983, and their motion to avoid lien on November 18, 1983. Since Ohio does not specifically provide otherwise, the debtors are entitled under 11 U.S.C. 522(b)(1) to the federal exemptions. The Pine case is not applicable to these debtors since Ohio’s ‘opt out’ provision has been repealed. These debtors are entitled to avoid the lien under 11 U.S.C. 522(f).”

Apparently, debtors’ attorney has been misled by the efforts of the Ohio Legislature to amend Ohio Revised Code § 2329.-662 as to its original expiration date by House Bill 291, passed on June 30, 1983, which in an obfuscatory manner apparently is directed to changing the expiration date of the opt out provision until January 1, 1985.

He has ample reason to be so misled because only a legal undercover agent can fathom the status of Code § 2329.662. The validity of the expiration date extension is seriously in doubt as not being in conformance with the mandates of The Ohio Constitution.

It is quite doubtful that the amendatory Ohio legislation now sub judice can bear constitutional muster conformably to Article II, § 15 of the Ohio Constitution, which reads, as follows:

§ 15 [How bills shall be passed.]
(A) The general assembly shall enact no law except by bill, and no bill shall be passed without the concurrence of a majority of the members elected to each house. Bills may originate in either house, but may be altered, amended, or rejected in the other.
(B) The style of the laws of this state shall be, “be it enacted by the general assembly of the state of Ohio.”
(C) Every bill shall be considered by each house on three different days, unless two-thirds of the members elected to the house in which it is pending suspend this requirement, and every individual consideration of a bill or action suspending the requirement shall be recorded in the journal of the respective house. No bill may be passed until the bill has been reproduced and distributed to members of the house in which it is pending and every amendment been made available upon a member’s request.
(D) No bill shall contain more than one subject, which shall be clearly expressed in its title. No law shall be revived or amended unless the new act contains the entire act revived, or the section or sections amended, and the section or sections amended shall be repealed.
(E) Every bill which has passed both houses of the general assembly shall be signed by the presiding officer of each house to certify that the procedural requirements for passage have been met and shall be presented forthwith to the governor for his approval.
(F) Every joint resolution which has been adopted in both houses of the general assembly shall be signed by the presiding officer of each house to certify that the procedural requirements for adoption have been met and shall forthwith be filed with the secretary of state, [emphasis added]

The applicable section of the Ohio statutes is Revised Code § 2329.66.2 which *115 reads from Page’s Ohio Revised Code Annotated, as follows: .

[§ 2329.66.2] § 2329.662 Repealed, 138 v H 674, § 3[138 v H 674], Eff. 9-28-83.
For Section 2329.66.2 in effect until 9-28-83, see bound volume:
[§ 2329.66.2] § 2329.662 [Federal exemption not authorized.]
Pursuant to the “Bankruptcy Reform Act of 1978,” 92 Stat. 2549, 11 U.S.C. 522(b)(1), this state specifically does not authorize debtors who are domiciled in this state to exempt the property specified in the “Bankruptcy Reform Act of 1978,” 92 Stat. 2549, 11 U.S.C. 522(d).
History: 138 v H 674. Eff. 9-28-79.

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Related

In Re Dixon
885 F.2d 327 (Sixth Circuit, 1989)
Ford Motor Credit Corp. v. Dixon (In re Dixon)
885 F.2d 327 (Sixth Circuit, 1989)
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53 B.R. 825 (D. Minnesota, 1985)
Thorp Credit, Inc. v. McGuire (In re McGuire)
47 B.R. 182 (S.D. Ohio, 1985)
In Re Donald W. Hall and Lucile E. Hall, Debtors, Donald W. Hall and Lucile E. Hall v. Finance One of Georgia Inc., in Re Joe E. Stubblefield and Vicky L. Stubblefield, Debtors, Joe E. Stubblefield and Vicky L. Stubblefield v. Finance One of Georgia Inc., in Re Clinton Eugene Register and Doris Elaine Register, Debtors, Clinton Eugene Register and Doris Elaine Register v. Kennesaw Finance Company, in Re Ronald Gary Hall, Debtor, Ronald Gary Hall v. Finance One of Georgia Inc.
752 F.2d 582 (Eleventh Circuit, 1985)
Hall v. Finance One of Georgia Inc.
752 F.2d 582 (Eleventh Circuit, 1985)
Morelock v. All Phase Electric Supply Co. (In Re Morelock)
47 B.R. 533 (N.D. Ohio, 1985)
Ledford v. Brown (In re Brown)
48 B.R. 19 (S.D. Ohio, 1984)
Thompson v. THORP FINANCIAL SERVICES
44 B.R. 530 (S.D. Ohio, 1984)
In Re Bland
56 B.R. 1 (N.D. Ohio, 1984)
Lunsford v. Avco Financial Services (In Re Lunsford)
41 B.R. 822 (N.D. Ohio, 1984)

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Bluebook (online)
38 B.R. 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-lewis-ohsb-1984.