Leo S. Kushner

UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS
EASTERN DIVISION
_____________________________________
IN RE:
LEO S. KUSHNER, 	Chapter 7
DEBTOR 	Case No. 08-18168-WCH
_____________________________________
MEMORANDUM OF DECISION
I. INTRODUCTION
The matter before the Court is Leo S. Kushner’s (the “Debtor’s”) Second Amended
Motion to Avoid Judicial Lien on Exempt Property Pursuant to 11 U.S.C. § 522(f)(1)(A) (the
“Motion”). Through the Motion, the Debtor seeks to avoid a judicial lien (the “Lien”) held by
Shirley Fisher (the “Lienholder”) on the Debtor’s residence at 252 Draper Avenue, North
Attleboro, Massachusetts (the “Property”). For the reasons set forth below, I will enter an order
granting the Motion.
II. BACKGROUND
The Debtor filed for Chapter 13 bankruptcy relief on October 28, 2008, and on the
Debtor’s motion, I converted the Debtor’s case to Chapter 7 on November 10, 2008. 	On
Schedule A – Real Property, the Debtor listed a one-half ownership interest in the Property with
his nondebtor spouse, Kara Kushner, valued at $350,000. 	On Amended Schedule C – Property
Claimed as Exempt, the Debtor electing the state exemptions under 11 U.S.C. § 522(b)(3),
claimed an exemption in the Property in the amount of $350,000 pursuant to Mass. Gen. Laws
ch. 188, § 1. On Schedule D – Creditors Holding Secured Claims, the Debtor disclosed the Lien,
as well as a first mortgage held by Navigant Credit Union, in the amount of $322,610.80, and a
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judicial lien held by Material Concrete Corporation, in the amount of $1,800.76. On Schedule H
– Codebtors, the Debtor listed Kara Kushner as also being liable on the Lien.
On February 19, 2009, the Debtor filed the Motion, seeking to avoid the Lien because it
impairs the Debtor’s exemption. 	The Lienholder filed an objection on March 5, 2009 on the
basis of fraud allegations, and the Debtor filed a response on March 6, 2009. I held a hearing on
March 18, 2009, and both the Debtor and the Lienholder appeared telephonically, raising
arguments not articulated in their papers. 	At the hearing’s conclusion, I took the Motion under
advisement.
III. POSITIONS OF THE PARTIES
The parties dispute the breadth of 11 U.S.C. § 522(f)(1)’s lien avoidance provision. The
Debtor argues that if the Lien were avoided, it is avoided in its entirety as to the whole of the
Property, regardless of the Debtor’s interest. 	In opposition, the Lienholder maintains that the
Lien is avoided only to the extent of the Debtor’s interest in the Property. 1
IV. DISCUSSION
A debtor’s ability to avoid the fixing of a judicial lien derives from 11 U.S.C. § 522(f)(1),
which provides, in relevant part, that:
(f)(1) 	Notwithstanding 	any 	waiver 	of 	exemptions 	but 	subject 	to
paragraph (3), 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). . . 2
1 The Lienholder also objects on the grounds of fraud, which I find irrelevant to a motion under
11 U.S.C. § 522(f)(1).
2 11 U.S.C. § 522(f)(1)(A).
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The formula to avoid a judicial lien is set forth in 11 U.S.C. § 522(f)(2)(A), which states:
(2)(A) For the purposes of this subsection, a lien shall be considered to
impair an exemption to the extent that the sum of—
(i) the lien;
(ii) all other liens on the property; and
(iii) the amount of the exemption that the debtor could claim if there
were no liens on the property;
exceeds the value that the debtor’s interest in the property would have in
the absence of any liens. 3
Applying the formula to the facts of this case, it is apparent that the Lien impairs the Debtor’s
exemption. 	The issue, therefore, is whether, by impairing the Debtor’s exemption, the Lien is
avoided in its entirety or only to the extent of the Debtor’s interest in the Property. 	A plain
reading of 11 U.S.C. § 522(f)(1) indicates the latter. Because the extent of the Debtor’s interest
in the Property is not before me, I need go no further.
V. CONCLUSION
In light of the foregoing, I will enter an order granting the Motion, avoiding the Lien to
the extent of the Debtor’s interest in the Property.
_______________________________
William C. Hillman
United States Bankruptcy Judge
Dated: April 27, 2009
3 11 U.S.C. § 522(f)(2)(A).
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