OPINION
This Pаnel is asked to review the Bankruptcy Court’s determination that the judgment of Zeigler Engineering Sales, Inc. (“Zeigler”) against Donald L. Cozаd (“debt- or”) is avoided in its entirety under 11 U.S.C. § 522(f)- For the reasons set out below, we conclude that the Bankruptcy Court was correct in its сomputation that Zeigler’s judgment was avoidable in its entirety.
JURISDICTION
A Bankruptcy Appellate Panel, with consent of the parties, has jurisdiction to hear appeals from final judgments, orders and decrees of bankruptcy judges within this circuit. 28 U.S.C. § 158(a), (b)(1), (c)(1). Since neither party to this appeal has opted to have the ease heard by the District Court for the District of Utah, they have consented to the jurisdiction. 10th Cir. BAP L.R. 8001-l(c).
The Bankruptcy Appellate Panel may affirm, modify, or reverse a bankruptcy court’s judgment, order, or decree, or remand with instructions for further proceedings. Findings of fact shall not be set aside unless clearly erroneous. Fed.R.Bankr.P. 8013;
see First Bank v. Reid (In re Reid),
This matter was submitted to the Bankruptcy Judge on stipulated facts; therefore, the facts are not at issue on this appeal.
FACTS
In this chapter 7 case, Zeigler filed a proof of claim asserting a judicial lien in the amount of $76,972.75. Zeigler asserted a secured claim to the extent of debtor’s interest in his home and sought an unsecured claim for the balance. The debtor owned an undivided one-half interest in the homestead with his wife. She is not in bankruptcy. The real property and improvements had a
Before filing bankruptcy, the debtor filed a claim of homestead exemption on the subject property in the amount of $11,000.00, claiming himself, his wife, his wife’s daughter, and his wife’s granddaughter. Debtor has never adopted his wife’s daughter or her granddaughter. No one ever objected to the debt- or’s claim of homestead exemption.
The debtor filed an actiоn against Zeigler under 11 U.S.C. § 522(f)(1), which allows a debtor to avoid certain hens to the extent that they impair a debtor’s exemption. Zeigler strenuously argues that in calculating the impairment, you must first deduct the mortgage from the full value of the property to determine the equity; then, divide the debt- or’s one-half interest to figure the value of the debtor’s interest. To illustrate Zeigler’s calculatiоn, it urges the formula to be applied in this case should be as follows:
Total value of home: $96,328.54
less mortgage: -$42,223.00
net equity: $54,105.54
one-half debtor’s interest: -$27,052.77
less exemption: -$11,000.00
less IRS lien: -$ 3,888.40
Net Secured Claim: $12,164.37 1
The Bankruptcy Judge found that the proper procedure to interpret § 522(f)(2)(A) is as follows:
Mortgage: $ 42,223.47
IRS hen: $ 3,888.00
Zeigler Judgment: $ 76,972.75
Exemption: $ 11,000.00
Total: $134,084.22
Debtor's interest: $ 48,164.50
-$134,084.22
Value of Debtor’s interest: -$ 85,919.72
The court’s order found that one-half of the debtor’s interest was $48,164.50 and Zeigler advances that thе mortgage balance is $42,223.00. A partial transcript, which is part of the record on appeal, indicates the partiеs stipulated that the mortgage balance was $42,223.47 as of the date of filing and this balance will be adopted by this panel for its decision.
The Bankruptcy Court held that § 522(f)(2)(A) was not ambiguous and further held that a lien as defined in § 101(37) should include consensual as well as judgment hеns. Therefore, the Bankruptcy Court held that the debtor’s one-half interest was impaired by the full amount of Zeigler’s hen. The Bankruptсy Court granted judgment for the debtor and set aside Zeigler’s hen in its entirety.
DISCUSSION
The issue before the Panel is the appropriate calculation, pursuant to § 522(f)(2)(A), used to determine whether the creditor’s judgment hen impairs the debtor’s exemption when the debtor owns a property jointly with a non-debtor spouse. Section 522(f)(2)(A), as amended by the Bankruptcy Reform Act of 1994, provides:
(2)(A) For the рurposes of this subsection, a hen shah 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 there were no hens on the property;
exceeds the value that thе debtor’s interest in the property would have in the absence of any hens.
“Courts properly assume, absent sufficient indicatiоn to the contrary, that Congress intends the words in its enactment to carry ‘their ordinary, contemporary, common meaning.’ ”
Pioneer Inv. Serv. v. Brunswick Assocs.,
1. The words have more than one meaning;
2. There is an unusual use of otherwise unambiguous words, e.g., terms оf art;
3. The purpose, intent or object of the statute cannot be ascertained from the language therein.
Kenan v. Fort Worth Pipe Co. (In re George Rodman, Inc.),
In the absence of an ambiguity, when there is a dispute over the interpretation of the statute, courts should not analyze the legislative history.
Id.
Any ambiguity must appear on the face of the statute.
Roberts v. United States (In re Roberts),
The Bankruptcy Court determined that § 522(f)(2)(A) was not ambiguous and therefore, it did not look to the legislative history. We agree. It is not the court’s function to legislate but rather to construe and apply the statute.
In re Allard,
In its brief and at oral argument, the Appellant raised an equal protection argument. An appellate court should not consider new issues not properly raised before the court below.
Gillihan v. Shillinger,
Accordingly, the Bankruptcy Court’s decision is AFFIRMED.
Notes
. The Bankruptcy Judge in her findings of fact concluded there was an exemption of $11,-000.00. The Bankruptcy Judge determined that there was a $1,000.00 dispute on the allowance of the homestead exemption, but found that it did not impact the impairment of the lien. We agree.