Opinion
Case No. 16-56000
06-26-2017
In re: GWENDOLYN E MINGO, pro se, Debtor.
Chapter 13
OPINION AND ORDER DENYING DEBTOR'S MOTION TO VOID LIEN
The case is before the Court on the Debtor's Motion entitled "Motion for the Court to Void Lien," filed on June 9, 2017 (Docket # 68, the "Motion"). The Motion seeks to void a lien based at least in part on 11 U.S.C. § 522(f), and more specifically, it appears that Debtor seeks to void the lien under 11 U.S.C. § 522(f)(1)(A). That section only permits avoidance of a "judicial lien," which term is defined in 11 U.S.C. § 101(36). But the Motion fails to identify any lien or claimed lien that is a 'judicial lien" as that term is used in 11 U.S.C. §§ 522(f)(1)(A) and 101(36). The lien that Debtor seeks to void is a mortgage on her residence located at 269-71 Watson Street, Detroit, MI 48201, but a mortgage is not a "judicial lien" and therefore is not voidable under § 522(f)(1)(A). See William Houston Brown, Lawrence R. Ahern, III, & Nancy Fraas MacLean, Bankr. Exemption Manual § 6:2 The Debtor's Power to Avoid Liens on Exempt Property—Section 522(f) (June 2017 Update) ("[T]he phrase 'judicial lien' does not include a consensual lien, such as a mortgage, and section 522(f)(2)(C) specifically clarifies that judgments authorizing the sale of mortgaged property in judicial foreclosure states are not 'judicial liens,' subject to avoidance under section 522(f)(1)(A)."); cf. In re Pace, No. 16-8036, 2017 WL 2644630, at *7 (B.A.P. 6th Cir. June 20, 2017) (stating that "Congress used §522(f)(2)(C) to contrast mortgage foreclosure judgments from liens which are avoidable under § 522(f), clarifying that the entry of a foreclosure judgment does not convert the underlying consensual mortgage into a judicial lien which may be avoided" and that "[m]ortgage foreclosure judgments do not become judicial liens subject to avoidance under § 522"); Nichols v. BJ Fox Enterprises, Inc. (In re Nichols), 265 B.R. 831, 834-35 (B.A.P. 10th Cir. 2001) (holding that a creditor's "security interest [(a mortgage) was] not transformed into a judicial lien as a result of the state court's foreclosure decree"). So there is no basis on which the Court could void any lien or claimed lien described in the Motion under § 522(f)(1)(A).
"The term 'judicial lien' means lien obtained by judgment, levy, sequestration, or other legal or equitable process or proceeding." 11 U.S.C. § 101(36).
And to the extent the Motion seeks to void a lien under any other basis in law, such relief can only be obtained by filing an adversary proceeding, under Fed. R. Bankr. P. 7001(2). (The only exception to that is an action seeking to void a lien under § 522(f), which may be brought "by a motion in the manner provided by Rule 9014." See Fed. R. Bankr. P. 4003(d); see also Fed. R. Bankr. P. 7001(2) (referencing Fed. R. Bankr. P. 4003(d)).)
Fed. R. Bankr. P. 7001(2) provides, in relevant part:
The following are adversary proceedings:
. . .
(2) a proceeding to determine the validity, priority, or extent of a lien or other interest in property, other than a proceeding under Rule 4003(d);
The Court notes that the Debtor did bring an adversary proceeding, No. 17-4257, but that was dismissed.
Accordingly,
IT IS ORDERED that the Motion (Docket # 68) is denied. Signed on June 26, 2017
/s/ Thomas J. Tucker
Thomas J. Tucker
United States Bankruptcy Judge