Filed: Jul. 24, 2019
Latest Update: Jul. 24, 2019
Summary: MEMORANDUM OPINION DOUGLAS D. DODD , Bankruptcy Judge . Debtor Russell Wayne Babin has moved to avoid judgments in favor of Hancock/Whitney Bank 1 and Capital One Bank 2 and for an expedited hearing on those motions. Babin is not entitled to relief from this court on the two principal motions, which will be denied without prejudice. The motion for expedited hearing also will be denied as moot. Babin's motions as well as schedule A filed in his case indicated that he owned no immovable pr
Summary: MEMORANDUM OPINION DOUGLAS D. DODD , Bankruptcy Judge . Debtor Russell Wayne Babin has moved to avoid judgments in favor of Hancock/Whitney Bank 1 and Capital One Bank 2 and for an expedited hearing on those motions. Babin is not entitled to relief from this court on the two principal motions, which will be denied without prejudice. The motion for expedited hearing also will be denied as moot. Babin's motions as well as schedule A filed in his case indicated that he owned no immovable pro..
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MEMORANDUM OPINION
DOUGLAS D. DODD, Bankruptcy Judge.
Debtor Russell Wayne Babin has moved to avoid judgments in favor of Hancock/Whitney Bank1 and Capital One Bank2 and for an expedited hearing on those motions. Babin is not entitled to relief from this court on the two principal motions, which will be denied without prejudice. The motion for expedited hearing also will be denied as moot.
Babin's motions as well as schedule A filed in his case indicated that he owned no immovable property to which the judicial mortgages could attach when he filed chapter 7 on June 19, 2013.3 Because he owned no such property, he did not claim — indeed, he was not entitled to claim — a homestead exemption under Louisiana R.S. 20:1. The debtor received a discharge on September 24, 20134 and the case was closed as a no asset case the same day.
Bankruptcy Code section 522(f) empowers bankruptcy courts to avoid judicial liens on exempt property that impair exemptions. The statute provides in relevant part:
(f)(1) . . . the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is—
(A) a judicial lien, other than a judicial lien that secures a debt of a kind that is specified in section 523(a)(5) . . .
Because Babin owned no immovable property that he could claim as exempt on the date he filed chapter 7, section 522(f) affords him no remedy by way of canceling the inscriptions of the judicial mortgages.
This ruling does not leave Babin without a remedy. Louisiana Revised Statute 9:5175(C) permits Louisiana state courts to order the cancellation of judgments under specified conditions. That statute provides:
C. (1) A judgment debtor may obtain a partial cancellation of the inscription of a judgment as it affects property not owned by the judgment debtor on the date of his filing a petition under Chapter 7 or Chapter 13 of the United States Bankruptcy Code upon the filing of an affidavit in accordance with this Subsection.
(2) The affidavit shall contain all of the following:
(a) A statement that the judgment debtor filed a petition under Chapter 7 or Chapter 13 of the United States Bankruptcy Code.
(b) The name of the court where the bankruptcy proceeding was filed.
(c) The date on which the petition was filed.
(d) A statement that the debt or debts upon which the judgment is based were listed in the bankruptcy proceeding and that the debtor was subsequently released from personal liability on the debt or debts by virtue of a discharge in bankruptcy.5
(e) A description of any particular property to be partially released and a statement that the property was not owned by the debtor at the time of filing the bankruptcy proceeding.
(f) A copy of the schedule or schedules listing the debt.
(g) A copy of the discharge order.
(3) Upon the filing of an affidavit in compliance with this Subsection, the recorder shall partially cancel the judgment insofar as it affects the property described in the affidavit and any property that may have been acquired after the date stated in Subparagraph (2)(c) of this Subsection that the debtor filed his petition for bankruptcy.
To summarize, this court lacks power to direct the cancellation of the judicial mortgages as Babin requests. His remedy lies in the Louisiana state courts.
