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In re Amiri

filed: June 19, 1995.

IN RE AKBAR AMIRI; MANIJEH AMIRI, DEBTORS. AKBAR AMIRI; MANIJEH AMIRI, APPELLANTS,
v.
COLLECTION BUREAU OF SAN JOSE, APPELLEE.



Appeal from the United States Bankruptcy Court for the Northern District of California. BK. No. 94-41715-TP. Honorable Leslie Tchaikovsky, Bankruptcy Judge, Presiding.

Before: Russell, Volinn, and Hagan, Bankruptcy Judges.

Author: Russell

RUSSELL, Bankruptcy Judge:

The debtors moved to avoid a judicial lien pursuant to § 522(f)(1)*fn1 as impairing the debtors' homestead exemption. The bankruptcy court denied the motion, stating that the issue was controlled by In re Chabot, 992 F.2d 891 (9th Cir. 1993). The debtors appeal. We AFFIRM.

I. FACTS

The facts are not in dispute. The debtors/appellants, Akbar and Manijeh Amiri ("Amiris") filed their joint chapter 13 petition on March 10, 1994. On that same date, the Amiris filed a motion pursuant to § 522(f) to avoid the fixing of a judicial lien held by the appellee, Collection Bureau of San Jose ("Bureau"). The judicial lien attached to the Amiris' residence located at 3506 Honeysuckle Way, Concord, California.

The Amiris offered the following evidence in support of their motion: (1) the value of the property was $250,000; (2) the Amiris' homestead exemption under California law was $75,000; (3) the first trust deed on the property in favor of General Motors Mortgage Corp. was for $191,500; (4) the second trust deed on the property in favor of Ail Anvari was for $20,000; (5) the Bureau's judicial lien was for $4,500; and (6) an additional judicial lien in favor of Commerce Collections was for $5,100.*fn2

The Bureau did not file a response to the Amiris' motion. Pursuant to local rules, the Amiris lodged a proposed order avoiding the Bureau's judicial lien. The bankruptcy court denied the motion and refused to sign the proposed order based on Chabot.

The Amiris subsequently filed a motion for reconsideration. A hearing was held on the Amiris' motion for reconsideration, which the bankruptcy court denied.

The Amiris timely filed their notice of appeal.

II. ISSUE*fn3

Whether a judicial lien impairs the debtors' homestead exemption within the meaning of § 522(f)(1) when there is little or no equity.

III. STANDARD OF REVIEW

"The determination of a homestead exemption based on undisputed facts is a legal Conclusion interpreting statutory construction which is reviewed de novo." In re Mayer, 167 Bankr. 186, 188 (9th Cir. BAP 1994). See also Chabot, 992 F.2d at 893; In re Roosevelt, 176 Bankr. 534, 535 ...


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