20 B.R. 258 | Bankr. W.D. Ky. | 1981
In re Samuel Lee JONES, Gayle Juanita Jones, Debtors.
United States Bankruptcy Court, W.D. Kentucky.
Henry Jarrett, Louisville, Ky., for debtors.
Stephen W. Fleck, Louisville, Ky., for creditor.
G. William Brown, Louisville, Ky., trustee.
MEMORANDUM AND ORDER
STEWART E. BLAND, Bankruptcy Judge.
This bankruptcy proceeding is before the Court on the objection of AVCO Financial Services, a creditor, to a lien avoidance by the debtors regarding household goods.
The identical issues were raised before this Court recently in the case of In Re Schrimp, 17 B.R. 36 (Bkrtcy.Ky.1981). The reasoning and decision of that case apply likewise to the instant case, and therefore the opinion in In Re Schrimp, supra, is herein attached and incorporated by reference as if set out in full.
The Schrimp decision dealt with a bankruptcy petition filed under the provisions of Chapter 7 of the Bankruptcy Code. The instant case is distinguishable in the respect that it involves a Chapter 13 proceeding.
Nevertheless, section 522(f) of the Bankruptcy Code, 11 U.S.C. § 522(f), is applicable to a Chapter 13 case. Section 103(a) of the Bankruptcy Code, 11 U.S.C. § 103, states that:
"(a) Except as provided in section 1161 of this title, chapters 1, 3 and 5 of this title apply in a case under chapters 7, 11, or 13 of this title."
5 Collier on Bankruptcy, ¶ 1300.81 (15th Ed. 1981), notes that:
"A chapter 13 debtor is entitled to claim the same exemptions allowed a chapter 7 debtor . . . [T]he debtor's avoiding powers and other rights granted under section 522 will be of importance in a chapter 13 case." See also In Re Ohnstad, 6 BCD 6 (D.S.D.1980).
Having determined that the exemption provisions and avoidance of liens on exempt property of the debtor apply to a Chapter 13 case, the Schrimp decision would indicate that a nonpossessory, nonpurchase money lien on household goods can be avoided by statement in the chapter 13 plan. A complaint is not mandated procedurally so long as the requisites of due process are afforded the creditor.
WHEREFORE, IT IS ORDERED AND ADJUDGED that the nonpossessory, nonpurchase *259 money lien of AVCO Financial services on household goods be and is avoided to the extent of the debtors' exempt interest therein.
A copy of this memorandum and order is mailed to Henry Jarrett, attorney for the debtors; to Stephen W. Fleck, attorney for the creditor, Avco Financial Services; and to the trustee, G. William Brown.
