UNITED STATES BANKRUPTCY COURT

    EASTERN DISTRICT OF KENTUCKY

  COVINGTON DIVISION

 

IN RE:

 

LAURIE NIENABER CASE NO. 00-20612

 

DEBTOR

 

MEMORANDUM OPINION AND ORDER

 

There is before the court a Motion by debtor, Laurie Nienaber, to Avoid a Lien with Michael Brumback filed herein on March 24, 2000.  Brumback has filed his Response and the matter was heard on July 3, 2000.  At that hearing, the court gave the parties an opportunity to further brief the matter and the debtor filed Debtor’s Reply on Motion to Avoid Judicial Lien on Exempt Property Under Section 522(f) on July 12, 2000 and the creditor filed Creditor’s Response to Debtor’s Reply as to Avoiding Judicial Lien on July 18, 2000.

Prior to filing this Chapter 7 proceeding, the creditor, Michael Brumback, was the spouse of Laurie Nienaber.  At some point after that marriage, Brumback obtained a judgment against the debtor in the approximate amount of $13,190 in the Campbell Circuit Court.  Subsequently, the debtor has remarried and has acquired, jointly with her new spouse, real property at 6048 Kenner Drive, Florence, Kentucky.


The debtor asserts that she is entitled to avoid the lien pursuant to 11 USC 522(f)(1)(A).  The creditor responds that because that Section allows avoidance only where an exemption is impaired, avoidance is not allowed here because the exemption does not apply to this creditor.  The creditor proceeds to point out that KRS 427.060, which provides the homestead exemption, also provides as follows:

“...This exemption shall not apply if the debt or liability existed prior to the purchase of the property or the erection of the improvements thereon.”

 

The debtor also asserts that KRS 427.160 is applicable in that the $1,000 “wildcard” exemption of the debtor leaves a balance also to apply to this property.  The creditor argues that the debtor has more than used up the “wildcard” exemption on other property, including cash in a checking account and other property.

With respect to the homestead exemption, it appears that the plain language of KRS 427.060 precludes the assertion of the homestead exemption as against this creditor since the property was acquired after the debt to this creditor was created.  In re Bush, 197 BR 378 (Bankr. W.D.Ky. 1995).  In re Kincaid, 55 BR 652 (Bankr. W.D.Ky. 1985).  Therefore, the debtor is not entitled to avoid the judgment lien of creditor, Michael Brumback in this matter.  Further, even if the debtor has not used all of her “wildcard” exemption as she contends, that exemption arises only upon the filing of the bankruptcy case which is after the creditor’s execution lien had already attached so it would be inferior to the execution lien.  KRS 427.160.

Wherefore, it is hereby ordered that the Motion to Avoid the Lien of creditor, Michael Brumback, herein against the debtor’s residence be, and the same hereby is, OVERRULED.

Dated this          day of July, 2000.

BY THE COURT

 

                                  

JUDGE


 

COPIES TO:

 

Steven Schiller, Esq.

Justin Verst, Esq.

James Nolan, Esq.