In re Fisher
| Citation | 11 BR 666 |
| Decision Date | 11 June 1981 |
| Docket Number | Bankruptcy No. BK-80-02525. |
| Parties | In re Donald Dale FISHER, aka Don Fisher, and Judy Louette Fisher, Debtors. Donald Dale FISHER, aka Don Fisher, and Judy Louette Fisher, Plaintiffs, v. CREDITHRIFT OF AMERICA, INC., Defendant. |
| Court | United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — Western District of Oklahoma |
Steven L. Parker, Tecumseh, Okl., for plaintiffs/debtors.
Charles M. Laster, Shawnee, Okl., for defendant.
This action was commenced with Credithrift of America's filing an Application for the return of several items of the debtor's personal property in which Credithrift asserted a nonpossessory, nonpurchase-money security interest. The debtors, Donald and Judy Fisher, responded to Credithrift's Application with their Application to avoid Credithrift's lien under 11 U.S.C. § 522(f) which permits the avoidance of such liens where the lien impairs an exemption to which the debtor would have been entitled. By agreement of the parties, this matter was submitted for decision on stipulated facts, the sole dispositive question of law being whether the particular items of personal property involved can be exempted under Oklahoma state law.
The facts as stipulated by the parties are that in September of 1980, Credithrift loaned the Fishers a certain sum of money. As security for this loan, the Fishers gave Credithrift a security interest in numerous items of their personal property.
Credithrift now seeks the return of five of these items in particular, namely, two air conditioners, one vacuum cleaner, a television set and a stereo. Credithrift does not claim that loan proceeds were used to purchase any of these items. Credithrift's claim is based on the contention that these five items cannot be exempted under Oklahoma law and, therefore, 11 U.S.C. § 522(f) cannot be used by the Fishers to avoid the lien.
The Fishers rely on 11 U.S.C. § 522(f) which provides in pertinent part:
The exemptions to which Oklahoma residents are entitled are specified in 31 Okl.St. Ann. § 1, effective June 25, 1980, which provides in pertinent part:
Credithrift argues that the five items involved herein are not "furniture" within the meaning of 31 Okl.St.Ann. § 1. In support of its argument, Credithrift cites the case of Michealson v. Elliott, 209 F.2d 625 (8th Cir. 1954), which held that a television set did not come within the exemptions provided for by a Minnesota statute. The Minnesota statute in that case exempted "all wearing apparel of the debtor and his family; all beds, bedsteads, and bedding kept and used by the debtor and his family; all stoves and appendages put up or kept for the use of the debtor and his family; all cooking utensils; and all other household furniture not herein enumerated, not exceeding $500 in value". In construing the meaning of the words "household furniture" as used in the statute, the circuit court applied the principal of ejusdem generis, as had the district court which previously considered the case, and found the words "household furniture" to be restricted in their meaning by the preceding particular words in the statute. Moreover, the circuit court quoted the language used in the opinion of the district court: "If the phrase `household furniture' appeared in the statute without the preceding enumeration of specific terms, then under a broad construction it might be held to include a television set."
In the Oklahoma statute no such preceding enumeration of specific terms is present. The only qualification placed on the household and kitchen furniture exemption by the Oklahoma statute is that such household and kitchen furniture be held primarily for the personal, family or household use of the debtor or his dependent. Thus, any assistance we might derive from Michealson in construing Oklahoma's statute is, at best, minimal.
Although there is very little Oklahoma case law regarding the application of the exemption to particular items of personal property, the Oklahoma courts have long taken the position that exemption statutes are to be liberally construed. In fact, the Oklahoma Supreme Court has stated on more than one occasion that where there is a doubt as to whether certain property is exempt or not, the doubt should be resolved in favor of the exemption. See Phelan v. Lacey, 51 Okl. 393, 151 P. 1070 (1915), and Nelson v. Fightmaster, 4 Okl. 38, 44 P. 213 (1896).
The only specific application of the exemption which this Court has been able to find by the Oklahoma courts is the case of Cook v. Fuller, 35 Okl. 339, 130 P. 140 (1913). In that case the Oklahoma Supreme Court held that a piano was within the exemption of all "household and kitchen furniture."
Credithrift urges that the word "furniture" be limited in its meaning so as not to include "mechanical devices" such as the air conditioners and vacuum cleaner. Although it is true that in modern everyday English parlance the word "furniture" is generally not used in reference to such devices, the Oklahoma Supreme Court rejected such a limitation on the word as used in the exemption statute. In Swisher v. Clark, 202 Okl. 25, 209 P.2d 880 (1949), the court said:
". . . In Commercial Casualty Insurance Co. of Newark, New Jersey v. Adkisson, 152 Okl. 216, 4 P.2d 50, we used the...
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