In re Sizemore

• Decision Date: 30 January 1995
• Docket Number: Bankruptcy No. 92-60305.
• Parties: In re Ralph M. SIZEMORE, Linda Sizemore, Debtors.
• Court: United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — Eastern District of Kentucky

177 B.R. 530 (1995)

In re Ralph M. SIZEMORE, Linda Sizemore, Debtors.

Bankruptcy No. 92-60305.

United States Bankruptcy Court, E.D. Kentucky, Corbin Division.

January 30, 1995.

Joe T. Roberts, London, KY, for debtors.

Darrell Saunders, Corbin, KY, for Laurel Warehousing Co.

MEMORANDUM OPINION

WILLIAM S. HOWARD, Bankruptcy Judge.

This matter is before the Court on the debtors' Motion to Reopen and Motion to Avoid Lien, filed herein on April 18, 1994. The case was closed on November 20, 1992. The debtors filed their Motions for the purpose of avoiding a lien of Laurel Warehousing Company ("Laurel"), a creditor of the debtors. The case was reopened by Order dated May 25, 1994. Laurel filed a Response and Objection to the Motion to Avoid Lien. The Motion and Response and Objection were heard on December 15, 1994, and the matter was submitted for decision on January 3, 1995.

Laurel states that the lien which the debtors seek to avoid is an execution lien created by a March 10, 1988, judgment for recovery by Laurel of the sum of $15,127.14 from debtor Ralph Sizemore. The judgment was granted in an action styled Laurel Warehousing Company v. Ralph Sizemore, Laurel Circuit Court Action No. 84-CI-482. A Notice of Execution against all of Ralph Sizemore's real property was filed on March 22, 1989, and appears of record in Encumbrance Book 21, at page 239, in the Laurel County Court Clerk's office. Copies of the judgment and execution have not been placed in the record herein, nor have the judgment and execution been listed on any of the debtors' schedules.

The lien which the debtors seek to avoid is on a 60 acre tract in Laurel County in which each of them had a one-fourth interest. They sold the tract in December 1993, and when the purchasers attempted to borrow money against the property, Laurel's execution lien was revealed to them. Laurel maintains that the debtors lack standing to reopen the case to avoid the lien because they did not do so until after they sold the property.

Case law appears to support Laurel's position. They cite In re Carilli, 65 B.R. 280 (Bkrtcy.E.D.N.Y.1986), a case with a similar fact pattern, in which the court held that ". . . the debtor must have a present cognizable interest in the property for her to have standing to move the court pursuant to section 522(f)." At page 282. The court came to this conclusion after analyzing the language of 11 U.S.C. § 522(f) which states in pertinent part:

Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the

...