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In re Duff (Case No. 00-01458) 11/03/2005

The Debtor seeks to avoid a lien as a preferential transfer under 11 U.S.C. § 547 and § 522(f)(1) because it was recorded within 90 days prior to the petition date.  The Court found that a judicial lien qualifies as a preference but the Debtor can only avoid the lien to the extent that it impairs the Debtor's exemption in the property under Section 522(f)(1).  A debtor may bring an action to avoid a transfer of property of the debtor, to the extent that the property is properly claimed exempt by the debtor, if (1) the transfer was involuntary; (2) the debtor did not conceal the property; (3) the trustee could avoid the transfer, but does not attempt to do so; and (4) the debtor has exempted the transferred property.  See 11 U.S.C. § 522(g)(1) and (h).  Applying Section 522(f)(2), the Court held that the judicial lien may only be partially avoided.

Date: 
Thursday, November 3, 2005
Category: 
Avoidance
Exemptions
Lien Avoidance
Preference
Chapter: 
13