Form 33Motion to Avoid Judicial Lien on Residential Real Estate[1]
[Caption: Official Form 16A]
Motion to Avoid Judicial Lien
1. Debtors, [debtor--husband], and [debtor--wife], his wife, commenced this case on [date], by filing the above-numbered voluntary petition for relief under chapter 7 of title 11, United States Code.
2. This motion is filed pursuant to 11 U.S.C. § 522(f) to avoid and cancel a judicial lien held by the [creditor] on real property used as the Debtors’ residence.
3. In January, 1998, Plaintiff/Debtors received a loan of $7,216 from [creditor]. On or about May 30, 2011, [creditor] obtained a judicial lien in and on the real property used as Debtors’ residence at [address]. This judicial lien is entered of record as follows:
June Term, 2011, No. 851: $7,216.
4. The Debtors’ interest in the property referred to in the preceding paragraph and encumbered by the lien does not exceed $20,000 in value and has been claimed as fully exempt in their bankruptcy case.[2]
5. The existence of [creditor]’s lien on Debtors’ real property impairs exemptions to which the Debtors would be entitled under 11 U.S.C. § 522(b).
WHEREFORE, Debtors pray for an Order against [creditor] for the cancellation and avoidance of the judicial liens on their residential real estate, and for such additional or alternative relief as may be just and proper.
Date:[signature]
Attorney for Debtors
[1]Federal Rule of Bankruptcy Procedure 4003(d) provides that debtors proceeding under 11 U.S.C. § 522(f) to avoid judicial liens or household goods security interests shall proceed by motion rather than complaint. Federal Rule of Bankruptcy Procedure 9013 requires service of a motion by the moving party on the trustee and on others as the court may direct. Normally, the creditor holding the lien would be the only other party served. If the creditor holding the lien is an insured depository institution, service generally will not be effective unless an officer of the institution is served by certified mail. See Fed. R. Bankr. P. 7004(h); In re Hamlett, 322 F.3d 342 (4th Cir. 2003). Many courts have local rules as to service, the amount of time for filing a response (if one is necessary), and certifications of service. Many courts will not schedule a hearing on the matter unless it is contested by the creditor, but will instead simply grant the relief requested. For a discussion of judicial lien avoidance, see Chapter 8, supra, and NCLC’s Bankruptcy Treatise § 10.4.2.3.
[2]This motion contemplates a case in which the property subject to the lien is fully exemptible. If the lien covers property which cannot be exempted as well, the motion should specify what property, or portion of the property should be relieved of the lien. Responding to several cases which had misconstrued the lien avoidance provisions, Congress amended section 522(f) in 1994 to specifically set forth an arithmetic formula for determining whether a lien can be avoided. The amendment overrules cases which had limited the availability of lien avoidance in certain situations. See NCLC’s Bankruptcy Treatise § 10.4.2.3.