In re Nowak
| Decision Date | 11 December 1984 |
| Docket Number | Bankruptcy No. WF7-84-00745,No. 84-C-822-5.,84-C-822-5. |
| Parties | In re Bankruptcy of Philip J. NOWAK and Kristen K. Nowak, Debtors. The BANK OF EDGAR, Appellant, v. Philip J. NOWAK, Respondent. |
| Court | U.S. District Court — Western District of Wisconsin |
Thomas W. Batterman, of Terwilliger, Wakeen, Piehler, Conway & Klingberg, Wausau, Wis., for appellant.
Robert F. Dopkins, Wausau, Wis., for respondent.
This is an appeal by the Bank of Edgar from an order of the Bankruptcy Court for the Western District of Wisconsin, the Hon. William H. Frawley, United States Bankruptcy Judge, presiding, avoiding the Bank's lien on the 1980 Oldsmobile Cutlass automobile of debtor Philip Jerome Nowak. 43 B.R. 545.
In light of the findings made by the Bankruptcy Judge, this Court must conclude that the 1980 Oldsmobile Cutlass, Number 3R47FAR509920, as described in Schedule B-2, Personal Property of the debtor's bankruptcy schedule, is a motor vehicle.
A debtor may avoid a lien to the extent it impairs an exemption if the lien is a non-possesory, non-purchase money security interest in any of those items listed in 11 U.S.C. § 522(f)(2)(A), (B) or (C).
The debtor claims his automobile is not a motor vehicle, but instead, generically speaking, a tool of his trade. This creativity is for our legislative branch. Congress could certainly have provided an exemption for an automobile or motor vehicle used in the debtor's trade or business. Instead, 11 U.S.C. § 522(d)(2) provides an exemption not to exceed $1,200 in value, in one motor vehicle.
An automobile cannot be considered a tool of trade.
Without further comment, perhaps there are some who may suggest that a cab-tractor is, indeed, a "tool of the trade," Matter of Pockat, 6 B.R. 24 (W.D.Wis.1980), and perhaps there are others who could be convinced that a specialized van used for the buffing of floors and installed with specialized equipment could be a "tool of the trade," In re Dempsey, 39 B.R. 561 (E.D. Penn.1984). And finally, again without comment, farm implements may be considered tools or implements commonly used by persons employed in the debtor's trade, Middleton v. Farmers State Bank of Fosston, 41 B.R. 953 (D.C.1984). This Court, however, believes that its imagination will not allow it to envision a 1980 Oldsmobile Cutlass as being anything other than a motor vehicle.
The reasoning set forth In re Sweeney, 7 B.R. 814 (E.D.Wis.1980) is more helpful, where the bankruptcy judges reason as follows:
A close inspection of subsections (2)(A), (B) and (C) of § 522(f) shows that the property described therein and subject to its terms is identical, word for word, to the property exemptions granted in § 522(d)(3), (4), (6) and (9). Having in mind the congressional purpose as set out above, we believe that the impact of § 522(f) should be limited to those particular categories of exempted property, and that as so limited, the section is constitutional. For example, in some cases, the section has been applied to a motor vehicle, which has been found to be a "tool of the trade" of the debtor. We would not apply it in that fashion. As Congress has specifically and separately exempted motor vehicles in § 522(d)(2), we would...
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