In Re Moe, 199 B.R. 737 (Bankr. D. Mont. 1995). · Go Syfert
In Re Moe, 199 B.R. 737 (Bankr. D. Mont. 1995). Cases Citing This Book View Copy Cite
27 citation events (9 in the last 25 years) across 14 distinct courts.
Strongest positive: Pearson v. Security Properties, LLC (In Re Pearson) (cob, 2010-04-16)
Treatment trajectory · 1997 → 2026 · click a year to view as-of
1997 2011 2026
Top citers, strongest first. 13 distinct citers. How cited ↗
discussed Cited as authority (rule) Pearson v. Security Properties, LLC (In Re Pearson)
Bankr.D. Colo. · 2010 · confidence medium
See, e.g., In re Brinley 403 F.3d 415 (6th Cir.2005); In Kolich v. Antioch Laurel Veterinary Hospital (In re Kolich), 328 F.3d 406, 410 (8th Cir.2003); In re Silveira, 141 F.3d 34 (1st Cir.1998); In re Finn, 211 B.R. 780 (1st Cir. BAP 1997); In re Hastings, 185 B.R. 811 (9th Cir. BAP 1995); In re Keenan, 364 B.R. 786 (Banrk.D.N.M 2007); In re Barrett, 370 B.R. 1 (Bankr.D.Me.2007); In re Saucier, 353 B.R. 383 (Bankr.D.Conn.2006); In re Varallo, 2006 WL 2433469 (Bankr.N.D.Ind.); In re Ryan, 210 B.R. 7 (Bankr.D.Mass.1997); In re Sheth, 225 B.R. 913, 917 (Bkrtcy.N.D.Ill.,1998) In re Corson, 206 B.…
discussed Cited as authority (rule) Dollar Bank v. Tarbuck (In Re Tarbuck)
Bankr. W.D. Pa. · 2004 · confidence medium
Further, the general rule is that unsecured creditors “bear the burden of debtor exemptions.” In re Simonson, 758 F.2d 103 , 108 (3d Cir.1985)(superseded by statute on other grounds, In re Moe, 199 B.R. 737, 739 (Bankr.D.Mont.1995)).
cited Cited as authority (rule) Rodriguez v. First American Bank (In Re Rodriguez)
Bankr. N.D. Tex. · 2002 · confidence medium
(In re Bell), 194 B.R. 192, 197-98 (Bankr.S.D.Ill.1996); In re Moe, 199 B.R. 737, 740 (Bankr.D.Mont.1995); In re Driver, 133 B.R. 476, 479 (Bankr.S.D.Ind.1991).
discussed Cited as authority (rule) In Re Kolich (2×) also: Cited "see, e.g."
Bankr. W.D. Mo. · 2001 · confidence medium
Simonson v. First Bank of Greater Pittston, 758 F.2d 103 (3rd Cir.1985). 11 . 11 U.S.C. § 522 (f)(2)(A). 12 . 199 B.R. 737, 739 (Bankr.D.Mont.1995). 13 .
cited Cited as authority (rule) In Re Freeman
Bankr. D.S.C. · 2001 · confidence medium
Corp. v. Finn (In re Finn), 211 B.R. 780, 783 (1st Cir. BAP 1997); In re Moe, 199 B.R. 737, 739-40 (Bankr.D.Mont.1995); In re Raines, C/A No. 98-01463-W (Bankr.D.S.C.1998).
discussed Cited as authority (rule) East Cambridge Savings Bank v. Silveira (In Re Silveira)
1st Cir. · 1998 · confidence medium
See Brantz, 106 B.R. at 68 ; see also Ryan, 210 B.R. at 10-12 (discussing Gonzalez, Chabot and Brantz); Moe, 199 B.R. at 739-40 (explaining that the Brantz formula permits only partial avoidance of judicial liens where there is some equity in debtor’s property in excess of the debtor’s exemption and all consensual liens).
discussed Cited as authority (rule) East Cambridge v. Silveira
1st Cir. · 1998 · confidence medium
See Brantz, 106 B.R. at 68 ; see also Ryan, 210 B.R. at 10-12 (discussing Gonzalez, Chabot and Brantz); Moe, 199 B.R. at 739-40 (explaining that the Brantz formula permits only partial avoidance of judicial liens where there is some equity in debtor's property in excess of the debtor's exemption and all consensual liens).
discussed Cited as authority (rule) In Re Duvall
Bankr. W.D. Tex. · 1998 · confidence medium
And see also In re Andres, 212 B.R. 306, 308, 310-11 (Bankr.N.D.Ill.1997) (avoiding the qualifying hen only in the amount of the impairment when the amount of the impairment was less than the amount of the hen); In re Gostian, 215 B.R. 237, 238-39 (Bankr.M.D.Ala.1997) (same); Canelos v. Mignini (In re Canelos), 216 B.R. 159, 164-65 (Bankr.D.Md.1997) (same); In re Moe, 199 B.R. 737, 739-40 (Bankr.D.Mont.1995) (same); In re Todd, 194 B.R. 893, 897-98 (Bankr.D.Mont.1996) (same); cf. Choice v. Copelco Capital, Inc. (In re Choice), Nos. 97-15868DAS, 97-0852, 1997 WL 599577 , at *3 (Bankr.E.D.Pa.
cited Cited as authority (rule) Bank of America National Trust & Savings Ass'n v. Hanger (In Re Hanger)
9th Cir. BAP · 1997 · confidence medium
Accord In re Kerbs, 207 B.R. 211, 215-16 (Bankr.D.Mont.1997); In re Todd, 194 B.R. 893, 897-98 (Bankr.D.Mont.1996); In re Moe, 199 B.R. 737, 739-40 (Bankr.D.Mont.1995).
discussed Cited as authority (rule) In Re Kerbs
Bankr. D. Mont. · 1997 · confidence medium
City National Bank v. Chabot (In re Chabot), 992 F.2d 891, 895-896 (9th Cir.1993) (while this Court has held that the Bankruptcy Reform Act of 1994 overruled portions of Chabot, the above quoted passage remains intact, see In re Moe, 199 B.R. 737, 738 (Bankr.Mont.1995)).
discussed Cited "see" In re: Alicia Marie Richards
9th Cir. BAP · 2023 · signal: see · confidence high
See Galvan v. Galvan (In re Galvan), 110 B.R. 446, 449 (9th Cir. BAP 1990), superseded by statute on other grounds as recognized in In re Moe, 199 B.R. 737, 739 (Bankr.
discussed Cited "see" Federal Deposit Insurance v. Finn (In Re Finn) (2×)
1st Cir. BAP · 1997 · signal: see · confidence high
See In re Moe, 199 B.R. 737, 739-40 (Bankr.D.Mont.1995); In re Johnson, 184 B.R. 141, 147 (Bankr.D.Wyo.1995); In re Thomsen, 181 B.R. 1013, 1016 (Bankr.M.D.Ga.1995).
cited Cited "see, e.g." Sheth v. Affiliated Realty & Management Co. (In Re Sheth)
Bankr. N.D. Ill. · 1998 · signal: see also · confidence low
See also In re Moe, 199 B.R. 737 (Bankr.D.Mont.1995) and Household Finance Corp. III v. Wilk, 1992 WL 165770 (W.D.N.Y.) (unpublished opinion ) deducting delinquent taxes in the avoidance calculation.
Retrieving the full opinion text from the archive…
In Re Arvid R. MOE, P/D/B/A Moe Motor Company, Debtor
19-60116.
United States Bankruptcy Court, D. Montana.
Mar 14, 1995.
199 B.R. 737
Stephen C. Mackey, Billings, Montana for Debtor., Laura Christoffersen, Wolf Point, Montana, for Citizens First National Bank.
John L. Peterson.
Cited by 17 opinions  |  Published

ORDER

JOHN L. PETERSON, Bankruptcy Judge.

In this Chapter 7 case, the Debtor filed a motion on January 17, 1995, under 11 U.S.C. § 522(f) to avoid the judgment hen of Citizens First National Bank (Bank), in the sum of $216,937.81, as impairing the Debtor’s homestead exemption. Hearing on the matter was held February 14, 1995. Both parties have filed memoranda in support of their respective positions.

The facts are undisputed. The Bank obtained a judgment against the Debtor on September 20, 1991, for the above sum in Cause No. 10357 in Montana Fifteenth Judicial District Court, Roosevelt County. The Debtor and Debtor’s spouse recorded a Homestead Declaration pursuant to Mont. Code Ann. § 70-32-105 through 107 on October 12, 1990, and claim the property is exempt in this bankruptcy case. The Bank presented an appraisal of the property fixing the fair market value at $63,900. The Debt- or owns the property subject to the homestead in joint tenancy with Debtor’s spouse, thereby making the Debtor a 50 percent (50%) owner of the property under Montana law as of the bankruptcy petition date, November 8, 1994. Further, the property is subject to a valid first lien for unpaid real property taxes of $5,535.27.

Mont.Code Ann. § 70-32-104(1) limits a homestead to a monetary value of $40,000 and subsection (2) further provides:

If a claimant who is an owner of an undivided interest in real property claims a homestead exemption, he is limited to an exemption amount proportional to his undivided interest.

See, In re Loeb, 12 Mont.B.R. 524, 533 (Bankr.Mont.1993).

The Debtor’s interest in the real property has a value of $31,950, which is subject to the Debtor’s proportional homestead interest of $20,000.

Debtor’s motion to avoid the Bank’s judicial lien is based upon § 522(f)(1). Congress’ recent amendments to § 522(f) by the Bankruptcy Reform Act of 1994, P.L. 103-394, determine the result of the pending motion. Neither party in their memorandum discusses the recent legislation.

The holding of In re Chabot, 992 F.2d 891 (9th Cir.1993), [1] was legislatively reversed by The Bankruptcy Reform Act of 1994, Section 303, by amending Section 522(f) to provide a definition of impairment as follows:

(2)(A) For the purposes of this subsection, a lien shall be considered to impair an exemption to the extent that the sum of—
(i) the hen
(ii) all other hens on the property; and
(hi) the amount of the exemption that the debtor could claim if their were no hens on the property;
[*739] exceeds the value that the debtor’s interest in the property would have in the absence of any hens.
(B) In the case of a property subject to more than 1 hen, a hen that has been avoided shall not be considered in making the calculation under subparagraph (A) with respect to other hens.
(C) This paragraph shah not apply with respect to a judgment arising out of a mortgage foreclosure.

Unlike Chabot, using the new mathematical formula of § 522(f)(2)(A), a judgment hen will impair a debtor’s homestead exemption to the extent the sum of that judgment hen, other avoidable hens, if any, and the apphcable exemption exceed the value of the debtor’s interest in the property. This new amendment apphes to cases filed after October 22, 1994. The Debtor’s petition was filed November 8, 1994, and so § 522(f)(2)(A) ap-phes.

The section-by-section description of the Bankruptcy Reform Act of 1994, P.L. 103-394, adopted by the House includes the following pertinent analysis of Section 303:

Because the Bankruptcy Code does not currently define the meaning of the words “impair an exemption” in section 522(f), several court decisions have, in recent years, reached results that were not intended by Congress when it drafted the Code. This amendment would provide a simple arithmetic test to determine whether a hen impairs an exemption, based upon a decision, In re Brantz, 106 B.R. 62 (Bankr.E.D.Pa.1989), that was favorably cited by the Supreme Court in Owen v. Owen, [500 U.S. 305, 313, n. 5,] 111 S.Ct. 1833, 1838, n. 5, [114 L.Ed.2d 350],
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The second situation is where the judicial hen the debtor seeks to avoid is partially secured. Again, in an example where the debtor has a $10,000 homestead exemption, a $50,000 house and a $40,000 first mortgage, most commentators and courts would have said that a judicial hen of $20,000 could be avoided in its entirety. Otherwise, the creditor would retain all or part of the hen and be able to threaten post-bankruptcy execution against the debtor’s interest which, at the time of the bankruptcy is totally exempt. However, a few courts, including the Ninth Circuit in In re Chabot, 992 F.2d 891 (9th Cir.1992), held that the debtor could only avoid $10,000 of the judicial hen in this situation, leaving the creditor after bankruptcy with a $10,-000 hen attached to the debtor’s exempt interest in property. This in turn will result, at a minimum, in any equity created by mortgage payments from the debtor’s post-petition income — income which the fresh start is supposed to protect — going to the benefit of the lienholder. It may also prevent the debtor from selling his or her home after bankruptcy without paying the lienholder, even if that payment must come from the debtor’s $10,000 exempt interest. The formula would not permit this result.

H.R.Rep. No. 835, 103rd Cong., 2nd Sess., U.S.Code Cong. & Admin.News 3340, P. 159-60(1994), 1994 WL 562232.

The holding of Chabot which is now overruled is—

Under the plain meaning of the statute, then, an exemption is not impaired unless its amount is diminished in value. CNB’s lien has no impact on the Chabot’s ability to recover their $45,000 homestead exemption. Therefore, it is not impaired and cannot be avoided. Id. at 895.

In addition, the case of In re Simonson, 758 F.2d 103 (3rd Cir.1985) is also reversed by P.L. 103-994. Simonson held that where the Debtor has no equity in the homestead property, no impairment of the homestead exemption exists, and thus a judicial lien cannot be avoided. Id., 758 F.2d at 105. Finally, Section 303 amendments likewise overruled Ivie v. Frey (In re Ivie), 165 B.R. 477 (Bankr.Mont.1994) and In re Galvan, 110 B.R. 446 (9th Cir. BAP 1990), both of which relied on the Simonson case.

Using the new legislative formula of § 522(f)(2)(A), the sum of the judgment lien ($216,937.81), the tax hen ($5,535.27) and the amount of exemption the Debtor can claim ($20,000), totals $242,473.08, and exceeds the value of the Debtor’s interest in the property ($31,950), or what the Debtor would have in[*740] the absence of the judgment lien, by $210,-523.08. Therefore, the Bank’s judgment lien is avoidable under § 522(f) to the extent of $210,523.08, and not avoidable to the extent of $6,414.73. [2]

IT IS ORDERED the motion of the Debt- or to void the judgment lien of Citizens First National Bank dated September 20, 1991, in the Montana Fifteenth Judicial District, Roosevelt County, Montana, Cause No. 10357, is granted in part and denied in part; the Bank’s judgment lien is avoided to the extent of $210,523.08; and the Bank’s judgment lien is allowed as a secured claim in the sum of $6,414.73, with the balance as a general, unsecured claim.

1

. In Chabot, the equity in the debtor’s home was $400,000. There were prior liens on the property. totaling at least $125,000 and the state homestead exemption was $45,000. The debtor sought to avoid a subsequent judgment lien on the home of $240,000, which the court found attached to the debtor’s equity in the home. The court held since the homestead exemption would not be diminished, i.e., it would be paid before the CNB judgment, the exemption was not impaired, and thus could not be avoided under § 522(f). 992 F.2d at 894-95.

2

.The same result would be reached under the somewhat different formula from Brantz, 106 B.R. at 68:

1. Property value on which judicial lien is sought to be awarded $31,950.00
2. Deduct liens not to be avoided ( 5,535.27)
3. Deduct Debtor's allowable exemptions (20,000,00)
6,414.73
4. Since (3) results in a positive figure, do not allow avoidance of liens to that extent only(Citing In re Magosin, 75 B.R. 545, 547 (Bankr.E.D.Pa.1987).