Filed: Sep. 22, 2015
Latest Update: Sep. 22, 2015
Summary: Not for publication MEMORANDUM DECISION AND ORDER DENYING DEBTOR'S MOTION FOR RECONSIDERATION PER FRBP RULE 9014(c) AND FRCP RULE 54(b) FOR AVOIDANCE OF JUDICIAL LIEN PURSUANT TO 11 U.S.C. 522(f)(1)(A) and (i) S. MARTIN TEEL, Jr. , Bankruptcy Judge . The debtor, Yelverton, seeks reconsideration of this court's Memorandum Decision and Order denying Debtor's Motion for Avoidance of Judicial Lien Pursuant to 11 U.S.C. 522(f)(1)(A) and (i)(1) . I will assume the reader has familiarity wit
Summary: Not for publication MEMORANDUM DECISION AND ORDER DENYING DEBTOR'S MOTION FOR RECONSIDERATION PER FRBP RULE 9014(c) AND FRCP RULE 54(b) FOR AVOIDANCE OF JUDICIAL LIEN PURSUANT TO 11 U.S.C. 522(f)(1)(A) and (i) S. MARTIN TEEL, Jr. , Bankruptcy Judge . The debtor, Yelverton, seeks reconsideration of this court's Memorandum Decision and Order denying Debtor's Motion for Avoidance of Judicial Lien Pursuant to 11 U.S.C. 522(f)(1)(A) and (i)(1) . I will assume the reader has familiarity with..
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MEMORANDUM DECISION AND ORDER DENYING DEBTOR'S MOTION FOR RECONSIDERATION PER FRBP RULE 9014(c) AND FRCP RULE 54(b) FOR AVOIDANCE OF JUDICIAL LIEN PURSUANT TO 11 U.S.C. 522(f)(1)(A) and (i)
S. MARTIN TEEL, Jr., Bankruptcy Judge.
The debtor, Yelverton, seeks reconsideration of this court's Memorandum Decision and Order denying Debtor's Motion for Avoidance of Judicial Lien Pursuant to 11 U.S.C. 522(f)(1)(A) and (i)(1). I will assume the reader has familiarity with the prior Memorandum Decision and the prior Order.1
I
Yelverton asserts that it was not necessary for him to pursue relief via an adversary proceeding because § 522(f) relief is sought instead by way of motion. The 277 acres at issue remain Marm's non-estate property. Under Rule 7001, any proceeding under § 548 to avoid the transfer of that property to Marm must be brought as an adversary proceeding. Section 522(f), dealing with avoidance of liens on property of the estate exempted by the debtor, cannot be used to avoid the transfer. So, with respect to the request to avoid the transfer to Marm, it is irrelevant that a proceeding under § 522(f) may be brought by a motion instead of an adversary proceeding. I permitted Yelverton's § 522(f) request to be pursued by motion but denied it for lack of proper service and on the merits because there was no estate property that had been exempted.
II
When a proceeding is pending as a contested matter under Fed. R. Bankr. P. 9014 (as in the case of a § 522(f) motion) Rule 9014(b) makes clear that service must be made as under Fed. R. Bankr. P. 7004. Yelverton is thus wrong in contending that Rule 7004 is inapplicable.
III
The dismissal of the appeal in the Court of Appeals regarding Adversary Proceeding No. 10-10004 leaves intact the adjudication on the merits by this court in that proceeding that no transfer occurred that was avoidable under § 548, and by reason of res judicata, that adjudication bars Yelverton's pursuing any avoidance of the transfer to Marm:
• That the dismissal of the appeal is the subject of a petition for reconsideration does not deprive that adjudication on the merits of res judicata effect.2 See Hunt v. Liberty Lobby, Inc., 707 F.2d 1493, 1497 (D.C. Cir. 1983) (noting "well-settled federal law" that appeal "does not diminish the res judicata effects of a judgment rendered by a federal court").
• That the dismissal of the adversary proceeding was via the granting of a motion for summary judgment does not deprive the court's judgment of its character as an adjudication on the merits that is entitled to res judicata effect.
• To the extent the Court of Appeals views the appeal as moot, that is because it views the claims as being subject to termination by the terms of the Settlement Agreement. The Court of Appeals, moreover, granted the request for a dismissal with prejudice. The clear message is that the § 548 claims pursued in the adversary proceeding are to be treated as terminated.
IV
Yelverton argues that a judicial lien exists on the 277 acres and that he is entitled to avoid that lien because "the Settlement Agreement Judgment, entered June 19, 2012, impairs the Exemption of the 277 acres by arguably blocking the Avoidance under 11 U.S.C. 548 of the transfer of the 277 acres from Yelverton to Marm." Motion at 5, ¶ (p). The 277 acres are not property of the estate,3 and thus cannot be exempted from the estate. Yelverton's assertion of an exemption of the 277 acres is a nullity, no more effective (as I noted in my prior Memorandum Decision) than would be an exemption of the Washington Monument. There is no exemption that is being impaired even if (which would be absurd) the Settlement Agreement is somehow viewed as a judicial lien. Accordingly, § 522(f) does not apply.
V
The remainder of Yelverton's criticisms of my prior Memorandum Decision are so frivolous as to warrant no comment.
In accordance with the foregoing, it is
ORDERED that Debtor's Motion for Reconsideration Per FRBP Rule 9014(c) and FRCP Rule 54(b) for Avoidance of Judicial Lien Pursuant to 11 U.S.C. 522 (f)(1)(A) and (i) is DENIED.
