In re Faughn, Bankruptcy No. 86-10163-DPM

• Decision Date: 05 September 1986
• Docket Number: Motion 01.,Bankruptcy No. 86-10163-DPM
• Citation: 69 BR 18
• Parties: In re Kevin Wayne FAUGHN and Dena Lou Faughn, His Wife, Debtors.
• Court: U.S. Bankruptcy Court — Eastern District of Missouri

69 B.R. 18 (1986)

In re Kevin Wayne FAUGHN and Dena Lou Faughn, His Wife, Debtors.

Bankruptcy No. 86-10163-DPM, Motion 01.

United States Bankruptcy Court, E.D. Missouri, Southeastern Division.

September 5, 1986.

Douglas R. Kennedy, Poplar Bluff, Mo., for debtors.

Jeffrey S. Gavin, Poplar Bluff, Mo., for movant.

Tom K. O'Loughlin, II, Cape Girardeau, Mo., trustee.

MEMORANDUM OPINION

DAVID P. McDONALD, Bankruptcy Judge.

INTRODUCTION

On April 8, 1986, Debtors filed their voluntary Chapter 7 petition. On June 18, 1986, Anderson's Home Furnishings ("Anderson's") filed its Motion To Modify Stay wherein it requested the Court to modify the stay by permitting it to foreclose its security interest on certain of Kevin Faughn's personal property. On July 9, 1986, Debtors conceded the validity of Anderson's motion as to some of the personalty, but alleged that the remainder of it was subject to lien avoidance under the Bankruptcy Code. At the pretrial conference on July 14, 1986, the parties agreed to submit the matter upon a stipulation and briefs. Based upon that record, the Court will this date enter an order modifying the stay in accordance with Debtors' concession and avoiding Anderson's security interest as to the remaining personalty.

FACTS

On July 18, 1985, Debtor purchased a Magnavox radio cassette recorder from Anderson's. Anderson's financed the purchase and Debtor granted Anderson's a security interest in the merchandise to secure his debt. Anderson's perfected its security interest by filing a Financing Statement with the Butler County, Missouri Recorder of Deeds.

The total amount financed at the initial purchase was as follows:

                   Retail cost                  $149.95
                   Sales Tax                       8.58
                   Prepaid Insurance Premiums
                      Credit Life                  1.10
                      Physical Damage              5.53
                   Recording Cost                  4.00
                                               ________
                   TOTAL AMOUNT FINANCED       $169.16
                

In August, 1985, Debtor made a $15.00 payment which Anderson's credited to his account. Then in September, 1985, Debtor purchased additional merchandise from Anderson's, namely, a Berkline wallaway and a Cooke sleeper and recliner. Anderson's also financed this purchase together with the remaining balance due on the initial contract. To secure this debt, Debtor granted Anderson's a security interest in the additional merchandise which Anderson's also perfected by filing a Financing Statement with the Butler County, Missouri Recorder of Deeds.

The total amount financed at the second purchase was as follows:

                  Retail cost                      $350.00
                  Sales Tax                          20.04
                  Prepaid Insurance Premiums
                      Credit Life                     8.64
                      Physical Damage                43.20
                  Recording Cost                      4.00
                  Net Balance of Initial Contract        $159.53
                                                   ________
                  TOTAL AMOUNT FINANCED            $585.41
                

In both October and November, 1985, Debtor made $30.00 payments which Anderson's credited to his account. Then, in November, 1985, Debtor again purchased additional merchandise from Anderson's, namely, an Ashley wood heater, two 6" elbows, two 6" flue steps, a stove board, and three 6" stove pipes. Anderson's also financed this purchase together with the remaining balance of the second contract. To secure the debt, Debtor granted Anderson's a security interest in the merchandise acquired in this third purchase which Anderson's also perfected by filing a Financing Statement with the Butler County, Missouri Recorder of Deeds.

The total amount financed at the third purchase was as follows:

                  Retail cost                     $ 626.77
                  Sales Tax                          33.94
                  Prepaid Insurance Premiums
                      Credit Life                    18.45
                      Physical Damage                92.29
                  Recording Cost                      4.00
                  Net Balance of Second Contract    $ 510.30
                                                  _________
                  TOTAL AMOUNT FINANCED           $1251.81
                

Debtor has made no payments to Anderson's on the third contract.

JURISDICTION

This Court has jurisdiction over the parties and subject matter of this proceeding pursuant to 28 U.S.C. §§ 1334, 151, and 157 and Local Rule 29 of the United States District Court for the Eastern District of Missouri. This is a "core proceeding" pursuant to 28 U.S.C. § 157(b)(2)(B), (G), and (K), which the Court may hear and determine.

DISCUSSION

Section 522(f)(2)(A) of the Bankruptcy Code permits a debtor to avoid a nonpossessory, nonpurchase-money security interest in household furnishings, household goods, or appliances which are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor to the extent that the lien impairs an exemption to which the debtor otherwise would be entitled. In the case at bar, the only issue is whether Anderson's liens are non-purchase money liens. Debtor contends that Anderson's liens are nonpurchase money and avoidable as to all merchandise except the Ashley wood heater and its accessories. Anderson's, on the other hand, contends that all merchandise purchased by Debtor is covered by purchase money liens which are not avoidable under section 522(f)(2)(A).

The Debtor argues that the purchase money character of Anderson's lien on the Magnavox radio cassette recorder did not survive the formation of Debtor and Anderson's second contract which provided for payoff of Debtor's obligation on the initial contract. According to Debtor, once his obligation on the initial contract had been extinguished by the payoff recited in the...