UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF KENTUCKY

COVINGTON DIVISION

IN RE:

JIMMY W. LEMING

LINDA L. LEMING CASE NO. 93-20639

DEBTORS

MEMORANDUM OPINION AND ORDER

Citizens Deposit Bank of Vanceburg, Kentucky has a valid first mortgage lien against the entire property in the amount of $6,928.27 which was recorded in both Lewis and Mason Counties. General Motors Acceptance Corporation (GMAC) has an execution lien against the property lying in Lewis County, levied against the property on October 4, 1990 in the amount of $5,543.41. Ford Motor Credit (FMC) has an execution lien levied against the same Lewis County property on April 19, 1993 in the amount of $7,835.71. Neither GMAC or FMC has a lien against the portion of the property in Mason County. The property involved is described in 5 tracts in the deed wherein the debtors obtained it.

Pursuant to motion of the debtors, this case was reopened by the court to address the avoiding of the liens of GMAC and FMC. The property in question has been abandoned by the trustee.

GMAC and FMC argue that since the tracts are divisible and, since they have liens only against the tracts in Lewis County, and since the tracts in Mason County are more than enough to satisfy the first mortgage indebtedness and the allowed homestead exemption of the debtors that their (GMAC and FMC) liens should not be avoided.

The debtors make two alternative arguments. First, they argue that the first mortgage debt should be apportioned against the properties and the exemptions should likewise be apportioned and, when these prorata amounts are subtracted from the value of the Lewis County property, there would be a remaining $3,708 above the apportionment of the first mortgage and homestead which would be a valid lien of GMAC (who executed on the property earliest), and that the lien of FMC would be worth zero and should be totally avoided.

Alternatively, debtors argue that the situation should be analogized to a foreclosure action brought by GMAC against the Lewis County property and, under these circumstances, debtors contend that since Citizens Deposit Bank could assert its entire lien in such a foreclosure proceeding, and, after application of the claimed homestead exemption, there would be no net proceeds, that both liens should be avoided.

The creditors argue that the size of the parcels involved, 72 acres, and the fact that they are in multiple tracts, are necessarily determinative of the outcome of this matter. That argument may be quickly addressed. Kentucky law does not limit the size of acreage which may be claimed pursuant to a homestead exemption. In re Gill, 61 B.R. 201 (Bankr. W.D.Ky. 1986); Graham v. Humm, 229 S.W. 80, 181 Ky. 28 (1921). Additionally, Kentucky law recognizes that a valid homestead claim may be made of multiple tracts of land even where those tracts are acquired in different purchases and even where those tracts may not be contiguous. Graham v. Humm, supra; Farmer v. Hampton, 156 S.W. 1041, 154 Ky. 83 (1913); Gaar, Scott and Company v. Reesor, 91 S.W. 717 (Ky. 1906), and Bishop v. Simpson, 6 S.W.2d 253, 224 Ky. 189 (1928). The above is not, however, determinative of the outcome of this matter. Kentucky courts have consistently held that, where there are multiple tracts which exceed the value of the homestead exemption, the debtors are entitled to claim a homestead exemption in as many tracts as is necessary to add up to the value of the exemption involved, but no more. Watson v. Strunnett, 10 Ky. Opin. 259 (1878); Nickols v. Sennett, 5 Ky. Law Rep. 199 (1883); Graham v. Humm, supra. and Franks v. Lucas, 77 Ky. 395 (1878).

It is therefore ORDERED that the motions to avoid the liens of General Motors Acceptance Corporation and Ford Motor Credit Company be, and the same hereby are, OVERRULED.

Dated this ____ day of January, 1997.

BY THE COURT

____________________________

JUDGE

COPIES TO:

Thomas L. Canary Jr., Esq.

Ronald E. Butler, Esq.

U.S. Trustee

Trustee