Opinion
CASE NO. 15-30070
11-26-2018
IN RE PAUL R. CURTIS DEBTOR
MEMORANDUM RE ORDER AVOIDING JUDICIAL LIEN [ECF No. 43]
This matter is before the Court on the Debtor's Motions to Avoid Liens pursuant to 11 U.S.C. § 522(f)(1)(A). [ECF Nos. 35-37 ("Motions").] The Debtor seeks to avoid 3 judicial liens recorded by Asset Acceptance LLC and Portfolio Recovery Associates, LLC, as impairing his exemption pursuant to 11 U.S.C. § 522(f).
The pending Motions represent the Debtor's fourth attempt to avoid the judicial liens. The prior history is set forth in more detail in an Order entered on October 24, 2018. [ECF No. 34.] The October 24 Order set the matter for hearing on November 20, 2018, to give the Court an opportunity to explain to counsel the deficiencies that prevent entry of an order granting the requested relief. Prior to the hearing, counsel filed the pending Motions. The docket reflects that no action would be taken pending the November 20 hearing. [ECF No. 38.]
Following the November 20 hearing, counsel submitted a new proposed order to correct the deficiencies. [ECF No. 43.] Unfortunately, the calculations in the most recent proposed order are not correct. Counsel's proposed order includes the following problems (highlighted in red):
ORDER
This matter is before the Court of the Debtor's Motion to Avoid Lien pursuant to 11 U.S.C. § 522(f)(1)(A). The Debtor represents that the following judicial liens impair one or more exemptions to which the Debtor would have been entitled to under 11 U.S.C. § 522(b) (listed in order of highest priority to lowest priority):
| Name of Lienholder | Collateral | Location | Book/Page | Amount Owed |
| | Real propertylocated at 255East CrossMain Street,New Castle,Kentucky | HenryCounty | | |
| Asset Acceptance,LLC | Real propertylocated at 255East CrossMain Street,New Castle,Kentucky | HenryCounty | Book E25, Page423 | $1,128.12 |
| | Real PropertyLocated at255 EastCross MainStreet, NewCastle,Kentucky | HenryCounty | | |
| TOTAL: | $10,267.76 |
|---|
The judicial liens are listed in the incorrect order, but the liens are computed in the correct order in the calculations below. The lien with the highest priority should be listed first and the lowest priority listed last. The calculations should begin with the lien with the lowest priority and end with the lien with the highest priority (if all liens are avoidable).
The Debtor states the liens held by Asset Acceptance, LLC impairs the Debtor's exemption in the Real Property as follows:
| A. Amount of lien to be avoided: | $7,901.87 |
| B. Amount of all other liens: | $44,365.89 |
| C. Value of claimed exemption: | $8,000.00 |
| Statutory basis for exemption: | |
| D. Total of adding lines A, B, and C: | $60,276.76 |
| E. Value of debtor(s)' interest in property: | $50,000.00 |
| F. Subtract line E from line D: | $10,267.76 |
| G. Extent of Impairment (choose one of thefollowing): | Line F is equal to or greater than line A, sothe entire lien is avoided. |
The Debtor states the lien held by Asset Acceptance, LLC impairs the Debtor's exemption in the Real Property as follows:
| A. Amount of lien to be avoided: | $1,128.12 |
| B. Amount of all other liens: | |
| C. Value of claimed exemption: | $8,000.00 |
| Statutory basis for exemption: | |
| D. Total of adding lines A, B, and C: | |
| E. Value of debtor(s)' interest in property: | $50,000.00 |
| F. Subtract line E from line D: | |
| G. Extent of Impairment (choose one of thefollowing): | Line F is equal to or greater than line A, sothe entire lien is avoided. |
| A. Amount of lien to be avoided: | $1,237.77 |
| B. Amount of all other liens: | |
| C. Value of claimed exemption: | $8,000.00 |
| Statutory basis for exemption: | |
| D. Total of adding lines A, B, and C: | |
| E. Value of debtor(s)' interest in property: | $50,000.00 |
| F. Subtract line E from line D: | |
| G. Extent of Impairment (choose one of thefollowing): | Line F is equal to or greater than line A, sothe entire lien is avoided. |
Line B, "the amount of all other liens," improperly includes the prior avoided lien securing $7,901.87.
Line B, "the amount of all other liens," improperly includes prior avoided liens securing $7,901.87 and $1,128.12. --------
This memorandum is intended as an educational tool. If the calculations are corrected as instructed, the liens are avoidable pursuant to § 522(f). Thus, the Court will enter a separate order with the correct calculations granting the relief requested. The Court highly encourages counsel to compare the highlighted areas noted above with the Order prepared and entered by the Court.
The affixing of this Court's electronic seal below is proof this document has been signed by the Judge and electronically entered by the Clerk in the official record of this case.
Signed By:
Gregory R . Schaaf
Bankruptcy Judge
Dated: Monday, November 26, 2018
(tnw)