Matter of Lipe , 36 B.R. 597 ( 1983 )

36 B.R. 597 (1983)

In the Matter of John LIPE, Debtor.
John LIPE, Movant,
v.
CORNER STONE BANK, Respondent.

Bankruptcy No. 83-02365-SW.

United States Bankruptcy Court, W.D. Missouri, Southwestern Division.

December 21, 1983.

W. Henry Johnson, Douglas, Douglas & Johnson, Neosho, Mo., for movant.

Abe R. Paul, Paul & Paul, Pineville, Mo., for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL JUDGMENT GRANTING MOTION FOR LIEN AVOIDANCE

DENNIS J. STEWART, Bankruptcy Judge.

The movant debtor requests the avoidance of the respondent's lien, under the provisions of section 522(f)(2) of the Bankruptcy Code, upon certain farm implements, including a 1980 Ford tractor which he values at $500, a rotary cutter valued at $150, a subsoiler valued at $25, a sickle mower valued at $100, a blade valued at $75, and a field cultivator valued at $100. The debtor claims the implements as his exempt property under the provisions of section 513.430(4) RSMo, which exempts "(a)ny implements, professional books or tools of the trade of such person or trade of a dependent of such person not to exceed two thousand dollars in value in the aggregate." The respondent lienholder, however, contends that "plaintiffs is not a farmer and does not derive his primary source of income from farm operations and . . . the equipment listed is property held by the plaintiff for his convenience and enjoyment and as such does not constitute property that is exempt."

On the issue thus joined, the court conducted its plenary evidentiary hearing on December 16, 1983, in Joplin, Missouri. The evidence which was then adduced showed that the debtor suffers from a service-connected disability incurred some 38 years ago during World War II; that, on account of this disability, he receives a payment from the Air Force in the sum of $1200 monthly; that, additionally, 18-20 years ago, he was injured as the result of sustaining an electrical shock; that, as a result of his cumulative disabilities, he is unable to do farm work personally, other than as a bookkeeper and manager; that the land which he claims to farm is 40 acres owned by his mother on which he has hired others to use the abovementioned equipment to plant and harvest alfalfa; that, in the last two years, the total gross proceeds of this farming operation have been $1800; that, during these seasons, however, he has been able to obtain only one cutting of the alfalfa because of drouth conditions, whereas, ordinarily, three or four cuttings could be expected; that he rents the 40-acre farm from his mother at $800 per year which he pays to her upon harvesting the alfalfa crop; that he intends to engage in farming the alfalfa in the years to come when he hopes that weather conditions will permit him to realize three or four cuttings per year; and that, in seeking a loan from the respondent Corner Stone Bank, the movant did not disclose that he had any farm income, but rather disclosed only his pension income.

The evidence thus adduced leaves little question that farming is the debtor's primary —in fact his only—trade, even though his income may come primarily from other sources. And the uncontradicted evidence further demonstrates a likelihood that the debtor's farming operations will increase in the future. Thus, the court has little difficult in finding that farming is the trade or business of the debtor and that the implements in respect to which lien avoidance is sought are tools of that trade or business. The defendant relies upon the holding in In re O'Neal, 20 B.R. 13 (Bkrtcy.E.D.Mo.1982), holding that the tools of a farming business could not be exempted as tools of the debtor's trade. But that decision was made under the provisions of a former Missouri exemption statute which imposed no value limit on what might be exempted as tools of a debtor's trade. It thus has little or no application to the matter at bar, which involves the current Missouri statute which places a $2,000 limit on a claim of exemption for tools of the trade, a limit which is not surpassed in the matter at bar. Further, the O'Neal case has not, in its applicable holding, been followed in this district. See In re Seacord, 7 B.R. 121 (Bkrtcy.W.D. Mo.1980). Furthermore, the standard definitional sources define "trade" so as to include not only that which results in a subsistence, but also that which may be plied for profit. "Trade" is defined as "(t)he business which a person has learned which he carries on for procuring subsistence, or for profit." Black's Law Dictionary, p. 1665 (1968) (Emphasis added.).

The laws which now prevail on the issue of lien avoidance admittedly leave much to be desired in the way of fairness and their congruence with the spirit of our national Constitution. See, e.g., Miller v. Peoples Bank of Miller, 8 B.R. 43 (Bkrtcy.W.D.Mo. 1980); Matter of Cole, 15 B.R. 322 (Bkrtcy. W.D.Mo.1981). But see In re Lovett, 11 B.R. 123 (D.C.W.D.Mo.1981), expressly overruling Miller, supra. Accordingly, the bankruptcy court is bound by the Lovett decision and the Seacord decision, supra, and their application to the facts of this case compels the granting of the requested lien avoidance. It is therefore

ORDERED that the debtor's motion for lien avoidance be, and it is hereby, granted.