Margaret M Tyus

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
MARGARET M. TYUS,
Debtor.
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Case No. 09-00003
(Chapter 13)
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER PARTIALLY GRANTING MOTION TO
AVOID SECURITY INTEREST OF THE INTERNAL REVENUE SERVICE
The debtor has filed a Motion to Avoid Security Interest in
Real Property Located at 42 Girard Street, NE, Washington, DC
20002 Pursuant to 11 U.S.C. § 506 (Dkt. No. 47). 	The lien at
issue is a tax lien of the Internal Revenue Service (“IRS”), not
a security interest. 	In her motion, the debtor contends that (1)
because the appraised value of her real property is $315,000.00,
and the balance on the first mortgage on the real property is
$342,887.60, the IRS’s lien on the real property should be
avoided, and that (2) the IRS’s claim should be treated as an
The document below is hereby signed.
Signed: October 03, 2009.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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1 	The court notes that a chapter 13 debtor seeking to strip
a lien from her residential real property should do so by way of
an adversary proceeding, not the filing of a motion in the main
case. 	Because the IRS does not assert a secured claim as to the
debtor’s real property, however, and does not dispute the
debtor’s assertion that the debtor’s real property lacks equity
against which the IRS could assert a lien, the court will
adjudicate the debtor’s motion without requiring the filing of an
adversary proceeding.
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entirely unsecured claim. 1
The IRS asserts secured status with respect to $12,195.00 of
its $47,594.04 claim based upon the value of the debtor’s
personal property, not the value of the debtor’s real property.
Likewise, the IRS does not contend that its claim is secured by
the debtor’s real property, but instead contends that its lien
attaches to the debtor’s personal property. 	The debtor having
misconstrued the nature of the lien asserted by the IRS, and it
being clear that the IRS does not take the position that its
claim is secured by the debtor’s real property, the court will
avoid the IRS’s lien on the debtor’s real property but will still
treat $12,195.00 of the claim as a secured claim.
In her response to the IRS’s opposition to the motion, the
debtor challenges the IRS’s assertion that its secured claim of
$12,195.00 is secured based on the value of the debtor’s
household and personal property because the debtor has claimed
all such property as exempt. 	Although 11 U.S.C. § 522(f)
restricts the fixing of a lien on the debtor’s exempt personal
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property, § 522(f) does not apply to statutory liens such as the
tax lien at issue in this case, and thus does not present a bar
to the IRS’s assertion of a lien against the debtor’s personal
property. 	The debtor having failed to show why the IRS’s secured
claim of $12,195.00 ought to be treated as a general unsecured
claim, it is
ORDERED that the debtor’s motion (Dkt. No. 47) is granted in
part and is otherwise denied. 	It is further
ORDERED, that at such time as a discharge Order is entered
pursuant to 11 U.S.C. § 1328(a) in this case, the lien held in
favor of the IRS on the debtor’s real property described as:
Lot numbered One Hundred Eight (108) in square numbered
Three Thousand Five Hundred (3500), in the subdivision
made by Howard Homes, Inc., as per plat recorded in
Plat Book 109 at folio 84 in the Office of the Surveyor
for the District of Columbia. 	The improvements
thereupon being known as: 42 Girard Street, NE,
Washington, D.C. 20002
shall be void, and it is further
ORDERED that the secured portion of the IRS’s claim in the
amount of $12,195.00, based on the IRS’s lien on the debtor’s
personal property is allowed as a secured claim, without
prejudice to an objection based on grounds other than that the
lien of the IRS on the debtor’s real property does not give rise
to an allowed secured claim or that the IRS’s lien on the
debtor’s personal property impairs the debtor’s exemptions.
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4	O:\TEEL\Laura\ORDERS\Tyus_mem decision and order denying motion to avoid security interest of IRS_Tyus_v2.wpd
[Signed and dated above.]
Copies to: Debtor; Debtor’s attorney; Chapter 13 Trustee;
Thomas J. Jaworski
Trial Attorney, Tax Division
U.S. Department of Justice
P.O. Box 227
Washington, D.C. 20044
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