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Case 13-27992 Filed 06/28/13 Doc 19



Law Office of Stephen Murphy
STEPHEN N. MURPHY #207102
622 Jackson St.
Fairfield, CA 94533
Telephone: 707-425-3358
Facsimile: 707-359-0211
E-mail: [email protected]


Attorney for the Debtor(s)
Susan Louise Magliano−Bassoff















UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF CALIFORNIA

SACRAMENTO



In re




Susan Louise Magliano−Bassoff
XXX-XX-5182














Debtor(s).











Case No.: 13−27992 − B − 13J

Chapter 13

DC No.: SNM-2



MOTION TO AVOID JUDICIAL LIEN OF
JOHN A. DERONDE, JR.








Date: July 30, 2013
Time: 9:32 a.m.
Courtroom: 32, 6th Floor
Judge: Thomas C. Holman

Debtor, Susan Louise Magliano−Bassoff, by and through her attorney of record, Stephen N.

Murphy, Esq., hereby moves the court for an order avoiding the judicial lien of John A. DeRonde, Jr.

(hereinafter “Lien-holder”), as against the real property located at 3500 Pleasants Trail, Vacaville,

CA, and identified by Solano County Assessor’s Parcel Number 0102-090-100 (the “Subject

Property”). This motion is based on the following.

MOTION TO AVOID JUDICIAL LIEN OF JOHN A.
DERONDE, JR.
MAGLIANO-BASSOFF 13-27992 (SNM-2)


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Case 13-27992 Filed 06/28/13 Doc 19

1. Debtor commenced this case on June 19, 2013, by filing the above-numbered voluntary

petition for relief under Chapter 13 of title 11, United States Code.

2. This motion is filed pursuant to 11 U.S.C. § 522(f) for an order avoiding 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.” 11 U.S.C. § 522(f)(1).

3. Lien-holder filed proof of claim number one (1) on June 19, 2013 (the “Proof of Claim”).

See Exhibit 1. Lien-holder’s Proof of Claim asserts that the debt is secured by real estate

described as 3500 Pleasants Trail, Vacaville, CA 95688.

4. Lien-holder recorded an Abstract of Judgment with the Solano County Recorder’s Office

on September 17, 2010 as Instrument #201000085060. See Exhibit 2. The Abstract of

Judgment secures the debt by all real property owned by the Debtor in the County of

Solano. The Subject Property is located in the County of Solano. Therefore, the debt

owed to Lien-holder, as asserted in the Proof of Claim, is a secured debt.

5. As of the date of the filing, the value of the Subject Property was $607,000.00. Refer to

the Declaration of Debtor filed herewith.

6. As of the date of the filing, the Subject Property was encumbered by a mortgage secured

by a first deed of trust in favor of Wells Fargo Bank. The balance of the loan secured by

the first deed of trust as of the date of filing was $659,999.00, see the Declaration of

Debtor filed herewith.

Fair Market Value







Wells Fargo Bank’s First Deed of Trust





$607,000.00

$659,999.00

Ne Equity (negative)







? $52,999.00

MOTION TO AVOID JUDICIAL LIEN OF JOHN A.
DERONDE, JR.
MAGLIANO-BASSOFF 13-27992 (SNM-2)


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Case 13-27992 Filed 06/28/13 Doc 19

7. Debtor claimed an exemption on the Subject Property pursuant to C.C.P. § 703.140(b)(1),

see Exhibit 4. Debtor lives in the Subject Property, and is entitled to the claim the

exemption under 11 U.S.C. § 522(b).

8. The claim of Lien-holder in third priority and secured by an Abstract of Judgment

identified as Instrument #201000085060, is a judicial lien, and it impairs an exemption to

which the Debtor would be entitled to under 11 U.S.C. § 522(b).

POINTS AND AUTHORITIES

Section 522(f) of the Bankruptcy Code authorizes the court to avoid 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.” 11 U.S.C. § 522(f)(1). There are four elements to avoidance of a lien that

impairs an exemption: (1) there must be an exemption to which the debtor would have been entitled;

(2) the property must be listed on the schedules and claimed as exempt; (3) the lien must impair the

exemption claimed; and (4) the lien must be a judicial lien or a non-possessory, non-purchase money

security interest in property described in 11 U.S.C. § 522(f)(1)(B). Goswami v. MTC Distributing

(In re Goswami), 304 B.R. 386, 390-391 (B.A.P. 9th Cir. 2003); In re Mohring, 142 B.R. 389, 392-

393 (Bankr. E.D. Cal. 1992), aff’d 153 B.R. 601 (B.A.P. 9th Cir. 1993), aff'd, 24 F.3d 247 9th Cir.

1994); Morgan v. FDIC (In re Morgan), 149 B.R. 147, 151 (B.A.P. 9th Cir. 1993).





Impairment is statutorily defined, “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.” 11 U.S.C. §522(f)(2)(A).





In this case, the total of all unavoidable liens and the exemption is $660,000.00. The value of

the property without liens is $607,000.00.

MOTION TO AVOID JUDICIAL LIEN OF JOHN A.
DERONDE, JR.
MAGLIANO-BASSOFF 13-27992 (SNM-2)


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Case 13-27992 Filed 06/28/13 Doc 19

PRAYER





WHEREFORE, Debtor prays this Court makes its order declaring the judicial lien of John A.

DeRonde, Jr. identified as Instrument #201000085060 is void as it affects the Subject Property, and

for such further relief as the Court considers proper.

Dated: June 28, 2013























/s/ Stephen N. Murphy
STEPHEN N. MURPHY
Attorney for Debtor







MOTION TO AVOID JUDICIAL LIEN OF JOHN A.
DERONDE, JR.
MAGLIANO-BASSOFF 13-27992 (SNM-2)


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