Opinion
Case No. 01-46547-JBR.
December 3, 2008
ORDER ON MOTION TO REOPEN
This matter came before the Court for hearing on the Debtor's Motion to Reopen Bankruptcy for Limited Purpose [#10], namely to file a Motion to Avoid Judicial Lien of Seymore James LLC [#11], and Seymore-James, LLC's Opposition to both motions [#14]. Although Seymore-James raises a variety of reasons for denying the motions, the Motion to Avoid Judicial Lien establishes the best reason to deny reopening this bankruptcy: reopening the case would serve no purpose as the judicial lien cannot be avoided.
In her Motion to Avoid Judicial Lien the Debtor alleges that the value of the real estate at issue was $110,000 as of the petition date; the property was encumbered by a mortgage which, again as of the petition date, was $81,349.24. The Debtor alleges she is entitled to an exemption of $20,200. The property is encumbered by a judicial lien in the amount of $6,000. Using these figures demonstrates that the total of the encumbrances plus the value of the asserted exemption equals $107,549.24, as the Debtor correctly notes in her avoidance motion. Since the value of the property as of the petition date exceeds the total of the encumbrances plus the exemption to which the Debtor would have been entitled, there is no impairment. Thus the judicial lien cannot be avoided.
The Court notes that the exemption that the Debtor alleges is the current amount of the homestead exemption under 11 U.S.C. § 522(d)(1). That amount exceeds the amount to which she would have been entitled as of the petition date and thus the maximum exemption in effect as of October 25, 2001 when the Debtor filed her petition should have been used. Because using the current value has not impact on the outcome, however, the Court will use the Debtor's figure.
Although the Debtor argued at the hearing that the amount of the judicial lien has now increased to approximately $12,000, the Debtor is not free to pick and chose the dates on which the various components of the § 522(f) are to be measured as her use of the incorrect amount of the exemption suggests she believes. All determinations relevant to § 522(f) are made as of the petition date. Wilding v. CitiFinancial Consumer Financial Services, Inc. (In re Wilding), 475 F.3d 428, 432 (1st Cir. 2007). See also In re Fox, 353 B.R. 388, 393 (Bankr. D. Conn. 2006); In re Blue, 2006 WL 3077418 at *2-*3 (Bankr. E.D. Wash. October 20, 2006); In re Salanoa, 263 B.R. 120, 123 (Bankr.S.D.Cal. 2001). It is unfair to avoid some portion of the lien because it has increased in size due to the passage of time when the value of the property is fixed as of the petition date. 11 U.S.C. § 522(a)(2).
Section 350(b) of the Bankruptcy Code permits the Court to reopen a case "to accord relief to the debtor, or for other cause." 11 U.S.C. § 350(b). Because the avoidance motion cannot be granted and because no other cause has been shown or even suggested, reopening this case would not accord relief to the Debtor.
For the foregoing reasons, the Motion to reopen is DENIED.