Bank of Edgar v. Nowak (In Re Bankruptcy of Nowak)Bank of Edgar v. Nowak (In Re Bankruptcy of Nowak)
ORDER
This is an appeal by the Bank of Edgar from an order of the Bankruptcy Cоurt 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.
In light of the findings made by the Bankruptcy Judge, this Court must cоnclude 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 dеbtor may avoid a lien to the extent it impairs an exemption if the liеn 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 vеhicle, 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 tо 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-tractоr is, indeed, a “tool of the trade,”
Matter of Pockat,
/ The reasoning set forth
In re Sweeney,
A close inspection of subsections (2)(A), (B) and (C) of § 522(f) shows that theprоperty described therein and subject to its terms is identical, word for word, tо the property exemptions granted in § 522(d)(3), (4), (6) and (9). Having in mind the congressionаl purpose as set out above, we believe that the impact of § 522(f) should be limited to those particular categories of exеmpted property, and that as so limited, the section is constitutionаl. For example, in some cases, the section has been aрplied to a motor vehicle, which has been found to be a “toоl of the trade” of the debtor. We would not apply it in that fashion. As Congrеss has specifically and separately exempted motor vehicles in § 522(d)(2), we would not include them in the property described in § 522(d)(6). Similarly, we do not believe that Congress intended that the so-called wild card exеmptions of § 522(d)(1) and (5) should be subject to the lien avoidance provisions of § 522(f). The well-known rule that exemption statutes are to be liberally сonstrued has been mentioned in a number of the decisions dealing with the validity of § 522(f), but it is important to remember that the direct thrust of the section in question deals not with the granting of exemptions, but with the avoidance of liens.
This Court believes that the more restrictive interpretation rather than the broad one requested by debtor is appropriate. Were Congress to allow the avoidance of a lien against a motor vehicle, it could certainly have drawn upon its expertise to have said so. It did not, and accordingly this Court will not expand its clear intention to treat automobiles as motor vehicles, particularly where to treat them as tools in trаde would allow a complete avoidance of a non-рossessory, non-purchase money security interest by virtue of 11 U.S.C. § 522(f).
The debtor is entitled to no more than a $1,200 exemption.
Accordingly,
ORDER
IT IS ORDERED that the Order of the Bankruptcy Court avoiding the lien of the Bank of Edgar on the 1980 Oldsmobile Cutlass automobile of debtor is REVERSED.