Local Rule RULE 9013-6: MOTION TO AVOID JUDICIAL LIEN – 11 U.S.C. § 522(f)(1)(A)

RULE 9013-6 MOTION TO AVOID JUDICIAL LIEN – 11 U.S.C. § 522(f)(1)(A)

(a) Contents. A motion to avoid a judicial lien shall include:

(1) The date the bankruptcy was filed ("petition date");

(2) A description of the real property owned by the debtor on the petition date to which the lien has attached;

(3) A statement that the debtor has claimed the property as exempt on Schedule C, the amount of the claimed exemption and the statutory basis for the exemption (i.e., 11 U.S.C. § 522(b)(3) and N.Y. CPLR 5206(a), or, 11 U.S.C. § 522(b)(2) and (d)(1) and/or (d)(5));

(4) Whether the debtor owns the property solely or jointly and, if owned jointly, the nature of the debtor's ownership interest in the property (e.g., joint tenant, tenant by the entirety or tenant in common);

(5) Proof as to the value of the real property as of the petition date;

(6) The name(s) of the judicial lien creditor(s), listed in order of their priority, the amount(s) of the lien(s) sought to be avoided, and the recording information for each judgment;

(7) For each lien sought to be avoided, a statement that the lien does not secure a debt arising out of a domestic support obligation of the kind described in § 523(a)(5);

(8) A copy of the recorded judgment or transcript of the judgment that reflects recording information and the name and address of the attorney who obtained the judgment on behalf of the creditor;

(9) The name(s) of the holder(s) of each additional lien against the property, the nature of such lien(s) (e.g., mortgage, tax, or statutory) and proof of the amount of each lien as of the petition date;

(10) The address of all other real property owned by the debtor (i.e., rental property, commercial property);

(11) The date on which the debtor acquired an interest in the real property; and

(12) A showing that the lien impairs the claimed exemption in that the sum of the amounts described in subparagraphs (3), (6) and (9) above exceeds the value that the debtor's interest in the property would have in the absence of any liens.

Comment In a chapter 13 case, relief under § 522(f)(1)(A) should be sought through the Local Form Plan and not by motion practice.

With reference to establishing the fair market value of the property or the balances owed on outstanding liens as of the petition date, values contained in debtors' schedules shall not constitute adequate proof thereof. Among other things, the court may consider a broker's price opinion or appraisal as evidence of value of real property and a proof of claim, payoff letter or account statement as evidence of a lien amount.

Code § 522(f) operates solely with respect to judicial liens. See § 101(36) for the definition of "judicial lien." A statutory lien, as e.g. a mechanic's lien, cannot be avoided under this section.

See § 101(53) for the definition of "statutory lien." Papers submitted in support of the motion should allow the court to readily ascertain the nature of the lien. See In re Schick, 418 F.3d 321 (3d Cir. 2005) (discussing the distinction between judicial liens, which are avoidable under § 522(f), and statutory liens, which are not.)