Weilert v. Gwartz (In re Weilert)

Summarized by David Hercher , U.S. Bankruptcy Court, District of Oregon
9 years 7 months ago

Citation:

In re Weilert, No. EC-15-1144-JuDTa (9th Cir. B.A.P. July 8, 2016). Not for publication.

Tag(s):

Ruling:

The lien of a judgment is avoidable under 522(f)(1)(A) even if the property is held in a trust of which the debtor is trustor, trustee, and beneficiary.

Procedural context:

The chapter 7 debtor, Montremare, moved under 522(f)(1)(A) to avoid the lien of a judgment entered against her, which impaired her homestead exemption. The bankruptcy court denied the motion. On appeal, the BAP reversed and remanded.

Facts:

Montremare formed a trust of which she was the trustor, trustee, and beneficiary. Her husband conveyed to the trust California real property in which the couple resided. Pendragon obtained a judgment against Montremare. The couple filed chapter 7 and without objection claimed the property as an exempt homestead. Section 522(f)(1)(A) permits a debtor to avoid the lien of a judgment on exempt property. To be avoidable, the judgment must result in the “fixing of a lien on an interest of the debtor in property.” Montremare held an interest in the property by virtue of her status as trustor, trustee, and beneficiary of the trust, her power to amend or revoke the trust, and her retention of full control over and benefit from the property as if the trust did not exist. Those interests permitted her to avoid the judgment lien.

Judge(s):

Meredith A. Jury, Randall B. Dunn, and Laura S. Taylor, Bankruptcy Appellate Panel Judges.

ABI Membership is required to access the full summary. Please Sign In using your ABI Member credentials. Not a Member yet? Join ABI now - it is absolutely worth it!