Bernadine E. Fitzgerald

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
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06/10/06
Bernadine E. Fitzgerald
04-18472
Order Denying [20-1] Motion To Avoid Lien with Vanderbilt Mortgage & Finance by
Bernadine E. Fitzgerald .
Received on: 2005-04-04 10:59:28.000
2005-04-04 00:00:00.000
2005-04-04 00:00:00.000
Patti Hennessy
Case 04-18472-m7 Doc 25 Filed 04/04/05 Entered 04/04/05 14:52:00 Page 1 of 4

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re: BERNADINE E. FITZGERALD, No. 7-04-18472 MF
Debtor.
ORDER DENYING PETITIONER’S MOTION TO AVOID JUDGMENT LIEN OF
VANDERBILT MORTGAGE & FINANCE INC.
THIS MATTER is before the Court on the Petitioner’s Motion to Avoid Judgment Lien of
Vanderbilt Mortgage & Finance Inc. (“Motion to Avoid Lien”) filed by the Debtor, pro se. The
Motion to Avoid Lien asserts that the lien of Vanderbilt Morgage & Finance, Inc. (“Vanderbilt”)
against the Debtor’s manufactured home should be avoided because the Debtor has claimed the
manufactured home as an exemption in her bankruptcy statements and schedules. The Court has
reviewed the Motion to Avoid Lien and the Debtor’s Statements and Schedules, and finds that the
Motion to Avoid Lien must be denied for the following reasons:
1. A motion to avoid lien is a contested matter governed by Rule 9014, Fed.R.Bankr.P.
Debtor failed to serve the Motion to Avoid Lien on Vanderbilt Mortgage & Finance, Inc. as required
by Rule 9014, Fed.R.Bankr.P.
2. Pursuant to 11 U.S.C. § 522(f), a debtor may avoid the fixing of a judicial lien against an
interest of the debtor in property to the extent the lien impairs an exemption the debtor is otherwise
entitled to. This section may not be used to avoid a consensual lien, such as a mortgage against the
debtor’s property, even if the mortgage is reduced by the creditor to judgment through state court
foreclosure proceedings. In re Nichols, 265 B.R. 831, 835 (B.A.P. 10th Cir. 2001) (noting that "[i]t is
the origin of the creditor's interest rather than the means of enforcement that determines the nature of
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the lien," and determining that a creditor’s actions to enforce its lien through judicial process do not
transform the lien into a judicial lien subject to avoidance under § 522(f)) (quoting In re Sanders, 61
B.R. 381, 383 (Bankr.D.Kan.1986)). The Debtor’s Statements and Schedules indicate that the
source of the debt to Vanderbilt is a promissory note and mortgage on the Debtor’s property. See
Debtor’s Schedule D - Creditors Holding Secured Claims, listing Vanderbilt with a disputed claim in
the amount of $43,051.00, and listing the unsecured portion of the claim as the full amount of the claim.
In a prior bankruptcy filed by the Debtor’s spouse, L.R. Fitzgerald, Vanderbilt is listed as a secured
creditor on the Debtor’s Schedule D, with no unsecured portion listed.
3. Security interests pass through a debtor’s bankruptcy while a debtor’s personal liability for
any deficiency remaining after a secured creditor realizes its security interest is discharged. See 11
U.S.C. § 727(b).
4. The Debtor’s request for relief seeks sanctions against Vanderbilt “‘for starting and
maintaining’ an action against L. R. Fitzgerald for deficiency amounts in violation of 11 U.S.C.
524(a)(2).” A motion to enforce the discharge injunction as to L.R. Fitzgerald must be brought in his
bankruptcy proceeding.
WHEREFORE, IT IS HEREBY ORDERED, that the Motion to Avoid Lien is DENIED.
Debtor is not personally liable for any deficiency that may remain in the event Vanderbilt forecloses on
its security interest in the Debtor’s real property.
___________________________________
MARK B. McFEELEY
United States Bankruptcy Judge
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I certify that on the date shown on the attached
document verification, a true and correct copy of
the foregoing was either electronically transmitted,
faxed, delivered or mailed to the listed counsel
and/or parties.
Bernadine E. Fitzgerald
PO Box 433
Waterflow, NM 87421
Robert Finch
Chapter 7 Trustee
555 East Main Street
Farmington, NM 87401
Office of the United States Trustee
PO Box 608
Albuquerque, NM 87103
Vanderbilt Mortgage
Attn: Managing Agent
PO Box 9800
Maryville, TN 37802
Michael J. Craddock
3100 Monticello Avenue
Suite 550
Dallas, TX 75205-3442
________________________________
Patti G. Hennessy
Law Clerk
(505) 348-2545
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