VanGorp v. Norwest Financial Wyoming, Inc. (In re VanGorp)

128 B.R. 579, 1991 Bankr. LEXIS 881
CourtUnited States Bankruptcy Court, D. Wyoming
DecidedMay 9, 1991
DocketBankruptcy No. 90-05214-C; Adv. No. 90-0517
StatusPublished
Cited by1 cases

This text of 128 B.R. 579 (VanGorp v. Norwest Financial Wyoming, Inc. (In re VanGorp)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Wyoming primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
VanGorp v. Norwest Financial Wyoming, Inc. (In re VanGorp), 128 B.R. 579, 1991 Bankr. LEXIS 881 (Wyo. 1991).

Opinion

DECISION DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT

HAROLD L. MAI, Bankruptcy Judge.

THIS MATTER is before the court on the debtor/plaintiff’s Motion for Partial Summary Judgment.

The issue before the court today is whether a debtor’s claim of exemption in a vehicle under W.S.1977, § l-20-106(a)(iv) (July 1990 Cum.Supp.) is superior to a non-purchase money security interest in that vehicle.

UNDISPUTED FACTS

The facts, as necessary for determination of this Motion for Partial Summary Judgment, are not in dispute. On July 12,1989, the plaintiff borrowed $3,406.57 from defendant. To secure this loan, the plaintiff gave defendant a security interest in a 1982 Ford Pickup, Y.I.N. 1FTEX14G3CKA 195 19. The plaintiff did not use the proceeds of the loan to purchase the pickup truck. Defendant has a valid and properly perfected security interest in the pickup truck. On July 23, 1990, the debtor/plaintiff filed a voluntary petition for relief under Chapter 13 of the Bankruptcy Code. On her B-4 Schedule of property claimed as exempt, the plaintiff claimed a $2,000 exemption in the pickup pursuant to W.S. 1977, § l-20-106(a)(iv) (July 1990 Cum. Supp.). There was no objection filed to this claim of exemption, and the time for filing such objection has now expired. The value of the pickup truck, was approximately $2,000 at the time of the confirmation hearing.

DISCUSSION AND CONCLUSIONS

The Wyoming Statutes provide for an exemption from judicial process for a vehicle:

(a) The following property, when owned by any person, is exempt from levy or sale upon execution, writ of attachment of any process issuing out of any court in this state and shall continue to be exempt while the person or the family of the person is moving from one (1) place of residence to another in this state:
* * * * * *
(iv) A motor vehicle not exceeding in value two thousand dollars ($2,000.00). * * * * * *

W.S.1977, § l-20-106(a)(iv) (1990 Cum. Supp.).

In this adversary proceeding, the debt- or/plaintiff seeks to use § 506 of the Bankruptcy Code to avoid $2,000 worth of the consensual lien she granted to the defendant. Section 506 of the Bankruptcy Code provides, in part:

(a) An allowed claim of a creditor secured by a lien on property in which the estate has an interest, ... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property, ... and is an unsecured claim to the extent that the value of such creditor’s interest ... is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor’s interest. ******
(d) To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void, unless—
(1) such claim was disallowed only under section 502(b)(5) or 502(e) of this title; or
[581]*581(2) such claim is not an allowed secured claim due only to the failure of any entity to file a proof of such claim under section 501 of this title.

11 U.S.C. §§ 506(a) and (d).

A debtor in a Chapter 7 case may not use § 506(d) as a lien avoidance section for property not administered by the trustee. In re Dewsnup, 908 F.2d 588 (10th Cir.1990). In this jurisdiction, a debtor in a Chapter 13 case may use § 506(d) to avoid the unsecured portion of an undersecured lien. In re Hart, 923 F.2d 1410 (10th Cir.1991), reh’g denied.

It is the plaintiff's position that the amount of her $2,000 vehicle exemption must be subtracted first from the value of the vehicle. If so, then there is no remaining value to secure defendant’s loan. Therefore, the plaintiff argues the lien should be declared entirely void pursuant to § 506(d).

In other words, the plaintiff believes that a non-purchase money consensual lien does not attach to the first $2,000 of value of a vehicle belonging to an individual in Wyoming.

Wyoming case law does not answer the question of whether or not the plaintiff’s $2,000 exemption in a vehicle is superior to a previously granted consensual lien.

A review of Federal case law on this issue yields two (2) cases decided under the former Bankruptcy Act, in which the Tenth Circuit Court of Appeals held that the Oklahoma vehicle exemption applied only to the debtor’s equity in the vehicle, In re McCoy, 643 F.2d 684 (10th Cir.1981), and that the Colorado household goods exemption applied only to the debtors’ equity. In re Cummings, 413 F.2d 1281 (10th Cir.1969).

Although these decisions are persuasive, neither of the statutes construed in these two (2) cases are exactly identical to the Wyoming vehicle exemption statute at issue here. The Colorado household goods exemption statute construed in the Cummings case defined “value,” as net of consensual liens. 413 F.2d at 1284. Similarly, the McCoy case was construing an Oklahoma statute providing an exemption for “[o]ne (1) motor vehicle having an equity value not to exceed One Thousand Five Hundred Dollars.” 643 F.2d at 687 (emphasis added); see also In re Pebsworth, 121 B.R. 600 (Bankr.N.D.Okla.1990) (Oklahoma homestead exemption applies only to the debtor’s equity in mobile home).

Unlike the statutes construed in Cummings and McCoy, the Wyoming exemption statutes do not define or specify whether or not “value” is limited to equity value.

Upon careful reading of § l-20-106(a), this court concludes that under Wyoming law, a consensual lien still attaches and is valid even though it encumbers a debtor’s exempt personal property. This is because the protection afforded by § l-20-106(a) is limited to protection from involuntary transfer by a creditor’s use of legal process, such as forced sale upon attachment or execution. The statute specifies that the exemption is from “levy or sale upon execution, writ of attachment or any process issuing out of any court in this state.” Thus, a consensual lien encumbering exempt property may still be enforced if the debtor sells, or otherwise attempts to voluntarily transfer, an interest in the property.

Plaintiff cites In re Eldridge, 22 B.R. 218 (Bankr.D.Maine 1982), in support of her position. Eldridge is clearly distinguishable because it involved a Maine statute with very different language than the one at issue in this case. That Maine statute and its legislative history made it clear that the first $1,200 value of an automobile was exempt from any security interest. Id. at 221. In contrast to the Maine statutes at issue in Eldridge,

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Bluebook (online)
128 B.R. 579, 1991 Bankr. LEXIS 881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vangorp-v-norwest-financial-wyoming-inc-in-re-vangorp-wyb-1991.