Opinion
Case No. 95-10759-AM
August 29, 1996
Anne W. Stockvis, Arlington, Virginia, for Debtor, pro se
MEMORANDUM OPINION AND ORDER
Before the court is a Petition for Reconsideration Or, In the Alternative, Request For An Extension of Time filed by the debtor on October 30, 1995. The motion seeks reconsideration of this court's memorandum opinion and order dated October 6, 1995, denying the debtor's motion to avoid a warehouseman's lien against stored goods that she claimed exempt in her bankruptcy case.
The debtor in her motion states that a properly-addressed copy of the memorandum opinion and order were not mailed to her until October 18, 1995. The court file reflects that a copy was originally mailed to the debtor on or shortly after October 6, 1996, the date the order was entered on the docket, but was addressed to "222 N. Roosevelt Street," Arlington, Virginia, rather than "2222 N. Roosevelt Street," and was returned by the U.S. Postal Service with the notation "NO SUCH NUMBER." While the debtor's motion does not specify the rule under which she is proceeding, the court will treat the petition both as a motion under F.R.Bankr.P. 9023 to alter or amend the court's order of October 18, 1995, and as a motion under F.R.Bankr.P. 9024 for relief from the order. A motion under F.R.Bankr.P. 9023, which incorporates Fed.R.Civ.P. 59(e), is required to be served "not later than 10 days after entry of the judgment." However, under F.R.Bankr.P. 9006(b)(1), the court may extend the time where the failure to act within the time required by the rules was the result of "excusable neglect." Based on the fact that the memorandum opinion and order were, through no fault of the debtor, misaddressed, and that the debtor promptly filed her motion within 10 days after they were remailed to her (taking into account the extension in F.R.Bankr.P. 9006(a) where the last day falls on a Saturday, Sunday, or legal holiday), the court will treat the debtor's motion as including a motion under F.R.Bankr.P. 9006(b)(1)(2) for enlargement of time, and the court will extend the time through and including October 30, 1995.
The court has carefully considered the motion and concludes that no basis has been set forth under F.R.Bankr.P. 9023 to alter or amend the order or under F.R.Bankr.P. 9024 to grant relief from it. The debtor's argument is essentially that in a prior bankruptcy, filed 8 years ago in the District of Maryland, she brought an essentially identical motion against two other moving or storage companies and obtained (apparently uncontested) orders avoiding their claimed storage and lessor's lien and that she "believes that similar orders have been issued in Alexandria over the past seven years." But whether similar orders have been entered — whether rightly or wrongly — in other cases, either in this District or other districts, is simply not germane. The issue is whether the debtor in this case has shown that she is entitled to the relief requested. It is frequently the case that courts — where no response has been filed to a motion — routinely enter orders presented by the moving party granting the relief requested. In fact, Local Rule 410(H)(4) specifically provides:
Effect of not timely filing an objection with a supporting memorandum. If a response with a supporting memorandum is not timely filed and served, the Court may deem the opposition waived, treat the motion, application, pleading, or proposed action as conceded, and enter an order granting the requested relief.
(emphasis added). Nevertheless, the court is not a rubber stamp and is not required to grant a motion simply because no opposition has been filed, but may at its discretion inquire into the merits of the motion and make an independent determination as to whether the relief requested should be granted. Indeed, the court should do so when important rights are at stake.
In her motion for reconsideration, the debtor suggests that the court misconstrued the original motion. She points out that the motion and proposed order cited to § 522(d), Bankruptcy Code, not § 522(f). The difficulty is that § 522(d), by itself, is not a grant of authority to avoid a lien. Rather, § 522(d) is simply a list of property — the so-called "Federal exemptions" — that may be claimed as exempt in a bankruptcy. The fact that property is successfully claimed as exempt, however, does not prohibit the enforcement of valid prepetition liens against that property after the debtor receives her discharge. § 522(c)(2), Bankruptcy Code. To set aside a lien against property claimed exempt requires an affirmative motion or adversary proceeding to avoid the lien. The Bankruptcy Code provides two statutory grounds for such avoidance by a debtor. In re Wilkinson, 196 B.R. 311 (Bankr. E.D. Va. 1996). First, under § 522(f), Bankruptcy Code, the debtor may avoid certain types of judicial liens and certain types of non-possessory, non-purchase money security interests in property that could have been claimed exempt but for the lien. Second, under § 522(g), Bankruptcy Code, the debtor may step into the shoes of the trustee and may avoid certain involuntary transfers of property (including the fixing of a lien) if the trustee could have avoided the transfer, the debtor did not conceal the transfer, and the debtor could otherwise have claimed the property as exempt. Here, the only possible basis for lien avoidance that appears from the original motion is § 522(f), Bankruptcy Code, and it was in light of that statutory provision that the court analyzed the debtor's motion.
Under § 522(b), Bankruptcy Code, an individual debtor may "exempt from property of the estate" either the property specified in § 522(d), Bankruptcy Code ("the Federal exemptions"), or, alternatively, the exemptions allowable under state law and general (nonbankruptcy) Federal law. A state may, however, "opt out" of allowing its residents to take advantage of the Federal exemptions. § 522(b)(1), Bankruptcy Code. Virginia has done precisely that. Va. Code Ann. § 34-3.1. Accordingly, residents of Virginia filing bankruptcy petitions may not claim the § 522(d) exemptions and may claim only those exemptions allowable under state law and general Federal law. In re Smith, 45 B.R. 100 (Bankr. E.D. Va. 1984). It appears from the debtor's petition that she is a resident of Virginia, and, accordingly, was not entitled to claim exemptions under § 522(d). However, no objection was filed to her claim of exemptions within the period allowed by F.R.Bankr.P. 4003(b), and, accordingly, the property claimed exempt "is exempt," whether or not the debtor had a colorable statutory basis for claiming it. § 522(1), Bankruptcy Code; Taylor v. Freeland Kronz, 503 U.S. 638, 643-644, 112 S.Ct. 1664, 1648, 118 L.Ed.2d 280 (1992).
As discussed in the court's original memorandum opinion, a warehouseman's lien is neither a judicial lien nor a nonpossessory, nonpurchase money security interest. It is certainly a possessory lien, and in all probability is also a statutory lien. Neither a possessory security interest nor a statutory lien is subject to avoidance under § 522(f). The debtor has set forth no legal authority or facts that would demonstrate that the court's original analysis of this issue was incorrect. Thus, no basis has been shown to warrant alteration or amendment of the October 6, 1995 order or the granting of relief from such order.
In her motion, the debtor also requests a period of not less than 60 days in which to further research the issues discussed in the court's memorandum opinion. It has now been nine months since the motion for reconsideration was filed, and no supplemental memorandum or citation of authorities has been filed. No further extension of time is warranted.
ORDER
For the foregoing reasons, it is ORDERED:
1. The motion for reconsideration, including the request for additional time to file a "response" to the court's memorandum opinion and order of October 6, 1995, is DENIED.
2. The clerk will mail a copy of this memorandum opinion and order to the debtor and the respondent.