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In re Moore

United States Bankruptcy Appellate Panel of the Eighth Circuit

July 8, 2013

In re: Patricia Anne Moore Debtor
v.
Patricia Anne Moore Debtor - Appellee J & M Securities, LLC Creditor - Appellant

Submitted: May 14, 2013

Appeal from United States Bankruptcy Court for the Eastern District of Missouri - St. Louis

Before KRESSEL, SALADINO and SHODEEN, Bankruptcy Judges.

KRESSEL, Bankruptcy Judge

J&M Securities, LLC, appeals from an order of the bankruptcy court[1] granting Patricia Anne Moore's motion to avoid a judicial lien on her homestead. Plainly stated, the ultimate question in this case is whether a state law exception to an exemption for a single creditor can prevent the debtor from exempting her homestead from property of the estate. 11 U.S.C. § 522(b). We hold that it does not and affirm.

Background

The facts are undisputed. On August 16, 2000, Patricia Ann Moore, the debtor, a/k/a Patricia Wallingsford, in conjunction with her then husband, John Wallingsford signed a guaranty of lease agreement with Caplaco Ten Inc., and Dierbergs Lemay, Inc.

The deed to Moore's home was recorded in the St. Louis County Recorder of Deeds office on April 11, 2003. Moore holds a one half ownership interest in the home. She owns the property with her brother and sister-in-law, who together hold the other one half interest. Of the three owners, Moore is the only one occupying the house and resides in it as her homestead. Her brother and sister-in-law do not claim Moore's home as their homestead.

On March 9, 2005, a judgment was entered against Moore in the Circuit Court of St. Louis County in favor of Caplaco and Dierbergs; Caplaco and Dierbergs transcribed the judgment on June 7, 2006, thereby creating a lien against Moore's home. J&M Securities obtained the judgment and lien by assignment on July 10, 2006. In January 2011, Moore granted the Anheuser-Busch Employees' Credit Union a mortgage against her home. Moore filed her chapter 7 petition on September 6, 2011. She soon converted her case to one under chapter 13. On the petition date, the judgment lien was $72, 770.73, the consensual lien (the mortgage) with ABECU was $108, 603.00 and Moore's home had a fair market value of $143, 000.00. In her schedules, Moore claimed a homestead exemption of $15, 000.00 pursuant to Mo. Ann. Stat. § 513.475. J&M objected to Moore's homestead exemption in her chapter 7 case, but did not similarly object after she converted to chapter 13.[2] The bankruptcy court entered the order confirming Moore's chapter 13 plan on February 22, 2012.

Moore filed a motion to avoid J&M's judicial lien. The credit union supported the motion and J&M objected. The bankruptcy court ruled that 11 U.S.C. § 522(f) allowed avoidance of all but $2, 198.50 of the lien and granted the motion except to that extent. We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 158(b).

Standard of Review

We review factual findings for clear error and legal conclusions de novo. Temperato Revocable Trust v. Unterreiner (In re Unterreiner), 699 F.3d 1022 (8th Cir. 2012).

Analysis

On appeal, J&M challenges the propriety of the Eighth Circuit's ruling in Kolich v. Antioch Laurel Veterinary Hospital (In re Kolich), 328 F.3d 406 (8th Cir. 2003), and the bankruptcy court's reliance on Kolich. We recognize that Kolich is controlling precedent in the Eighth ...


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