UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF KENTUCKY
LAURIE NIENABER CASE NO. 00-20612
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 Debtors Reply on Motion to Avoid Judicial Lien on Exempt Property Under Section 522(f) on July 12, 2000 and the creditor filed Creditors Response to Debtors 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 creditors 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 debtors residence be, and the same hereby is, OVERRULED.
Dated this day of July, 2000.
BY THE COURT
Steven Schiller, Esq.
Justin Verst, Esq.
James Nolan, Esq.