Short et al v. Citi Financial Mortgage

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
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06/11/06
Judith A. Short, et al. v. Citi Financial Mortgage
04-01201
Order Dismissing Adversary Proceeding .
Received on: 2004-12-16 15:30:21.000
2004-12-16 00:00:00.000
2004-12-16 00:00:00.000
James Burke
Case 04-01201-s Doc 4 Filed 12/16/04 Entered 12/16/04 15:50:00 Page 1 of 3

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re:
JUDITH ARLEEN SHORT AND
CECIL DWAINE SHORT,
Debtors.
Case No. 7-04-16556 SR
JUDITH A. SHORT, et al.,
Plaintiffs,
v.
CITI FINANCIAL MORTGAGE,
Defendant.
Adv. No. 04-1201 S
ORDER DISMISSING CASE
This matter is before the Court sua sponte. At the
initial pretrial conference held on December 7, 2004, the
Court informed Plaintiff’s counsel that he could provide legal
support for the position taken in the complaint within one
week, and if no support were forthcoming, the Court would
consider a sua sponte dismissal. Counsel has not provided any
support.
The Court finds that the complaint should be dismissed.
First, the complaint seeks to avoid a “preferential lien”.
The Debtors have no standing to avoid preferences; under 11
U.S.C. § 547 the trustee must pursue recovery of preferential
transfers. Second, the complaint is captioned “Complaint
under Section 522(f) to avoid lien which impairs and [sic]
exemption.” Bankruptcy Rule 4003(d) states that a procedure
Case 04-01201-s Doc 4 Filed 12/16/04 Entered 12/16/04 15:50:00 Page 2 of 3

Page -2-
by a debtor to avoid a lien on exempt property under section
522(f) “shall be by motion in accordance with Rule 9014.”
Therefore, no adversary is required. Third, Section 522(f)
allows a debtor to avoid a lien only if the lien is “a
judicial lien” (§ 522(f)(1)(A)), or “a nonpossessory,
nonpurchase-money security interest” in certain described
items of personal property (§ 522(f)(1)(B)(i)-(iii)). The
lien described in the complaint is a second mortgage given to
Defendant and is neither a judicial lien nor a lien on
personal property. Finally, presumably a second mortgage is a
voluntary transfer of property to the mortgagee. A debtor may
not exempt property that has been voluntarily transferred
before the petition. See 11 U.S.C. § 522(g). Therefore,
IT IS ORDERED that this complaint is dismissed.
Honorable James S. Starzynski
United States Bankruptcy Judge
I hereby certify that on December 16, 2004, a true and correct
copy of the foregoing was either electronically transmitted,
faxed, delivered, or mailed to the listed counsel and parties.
Eric D Dixon
309 S Ave A
Portales, NM 88130-6284
Case 04-01201-s Doc 4 Filed 12/16/04 Entered 12/16/04 15:50:00 Page 3 of 3