Buck Green v. GMAC Mortgage Corp. ( 2003 )

United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
No. 03-6046EM
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In re: *
*
Buck Green, *
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Debtor. *
*
*
Buck Green, *
* Appeal from the United
Debtor - Appellant. * States Bankruptcy Court
* for the Eastern District of
v. * Missouri
*
GMAC Mortgage Corporation, *
*
Creditor - Appellee. *
*
*
*
Submitted: September 25, 2003
Filed: October 9, 2003
Before DREHER, MAHONEY, and VENTERS, Bankruptcy Judges.
DREHER, Bankruptcy Judge.
This is an appeal from an order of the bankruptcy court 1 dated July 3, 2003,
which denied the Appellant’s motion to avoid a lien. For the reasons stated below,
we affirm.
FACTS and PROCEDURAL HISTORY
The Appellant, Buck Green (“Green”), sought to avoid the consensual lien of
GMAC Mortgage Corp. Home Equity, dated May 25, 2000, based upon 11 U.S.C. §
522(f) which provides, in part, that a debtor may avoid the fixing of either a judicial
lien or a nonpossessory, nonpurchase-money security interest in personal property.
See 11 U.S.C. §§ 522(f)(1) and (f)(2). At the hearing, Green did not allege or present
evidence that the mortgage of GMAC was a judicial lien, but only alleged that the
lien was a nonpossessory, nonpurchase-money mortgage. The bankruptcy court
determined that GMAC’s consensual mortgage did not fit the statutory definition of
an avoidable nonpossessory, nonpurchase-money security interest and denied Green’s
motion to avoid the lien.
DECISION
Since this appeal raises only legal issues, we review the bankruptcy court's
interpretation of the statute de novo. See Kolich v. Antioch Laurel Veterinary Hosp.
(In re Kolich), 273 B.R. 199, 201 (8th Cir. 2003). Although in his brief Green raises
the issue of the mortgage being a judicial lien, that issue was not raised before the
1
The Honorable James J. Barta, United States Bankruptcy Judge for the
Eastern District of Missouri.
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bankruptcy court and we will not address the issue here. See First Bank Investors'
Trust v. Tarkio Coll., 129 F.3d 471, 476-77 (8th Cir.1997) (requiring factual issues
to be considered on appeal to be presented to the bankruptcy court first).
Therefore, the only issue before us is whether the the mortgage secured by
Green’s residential property constituted an avoidable security interest. The
bankruptcy court properly held that it does not. Section 522(f)(1)(B) provides that
only a nonpossessory, nonpurchase-money security interest in any of the following
may be avoided by the debtor:
(i) household furnishings, household goods, wearing apparel,
appliances, books, animals, crops, musical instruments, or jewelry that
are held primarily for the personal, family, or household use of the
debtor or a dependent of the debtor;
(ii) implements, professional books, or tools, of the trade of the debtor
or the trade of a dependent of the debtor; or
(iii) professionally prescribed health aids for the debtor or a dependent
of the debtor.
11 U.S.C. § 522(f)(1)(B). Mortgages on real property are not within this description.
As the bankruptcy court correctly concluded, since GMAC’s lien is not the type that
may be avoided under Section 522(f)(1)(B), the formula under section 522(f)(2) does
not apply. See 11 U.S.C. § 522(f)(2); In re Bland, 793 F.2d 1172, 1175 n.4 (11th
Cir.1986). Therefore, the bankruptcy court properly denied Green’s motion to avoid
GMAC’s lien pursuant to 11 U.S.C. § 522(f)(2).
ACCORDINGLY, we AFFIRM.
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A true copy.
Attest:
CLERK, U.S. BANKRUPTCY APPELLATE PANEL
FOR THE EIGHTH CIRCUIT
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