Case No. 95-10759-AMUnited States Bankruptcy Court, E.D. Virginia
October 6, 1996
Anne W. Stockvis, Arlington, Virginia, for Debtor, pro se
MEMORANDUM OPINION AND ORDER DENYING MOTION TO AVOID LIEN
STEPHEN MITCHELL, Bankruptcy Judge
Before the court is a motion filed by the debtor on April 7, 1995, under § 522(f) of the Bankruptcy Code to avoid a storage lien held by Berry Van Lines.[1] An addendum to the motion was filed on August 9, 1995. No response has been filed by Berry Van Lines, and the debtor has tendered a proposed order avoiding the claimed storage lien. For two reasons, however, the court cannot grant the motion.
First, the motion has not been properly served on the respondent. Under Rule 4003(d), Federal Rules of Bankruptcy Procedure, “A proceeding by the debtor to avoid a lien or other
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transfer of property exempt under § 522(f) of the [Bankruptcy] Code shall be by motion in accordance with Rule 9014.” Rule 9014 (“Contested Matters”) in turn requires, “The motion shall be served in the manner provided for service of a summons and complaint by Rule 7004.” Rule 7004 permits service by any of the traditional means permitted by Rule 4, Federal Rules of Civil Procedure, and also provides a simplified mode of service by first class mail. F.R.Bankr.P. 7004(b). In particular, service may be made upon “a domestic or foreign corporation or upon a partnership or other unincorporated association, by mailing a copy of the summons and complaint to the attention of an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process, and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant.” F.R.Bankr.P. 7004(b)(3) (emphasis added).
Here, the only service reflected on the certificate of service was the mailing of the original motion and the addendum by first class mail to “Berry Van Lines, 747 N. DuPont Hwy., Dover, Delaware 19901.” Rule 7004, however, requires that mailed process be directed to the attention of a specific officer or agent. Without proper service of process, the court is without jurisdiction to grant the requested relief.
If the only issue were service of process, the court would simply require that the debtor reserve the motion by one of the means permitted by Rule 7004. It appears from a review of the motion itself, however, that no proper basis has been pleaded for avoiding the claimed lien. Ordinarily, liens and other security interests survive bankruptcy Farrey v. Sanderfoot, 500 U.S. 291, 297, 111 S.Ct. 1825, 114 L.Ed.2d 337 (1991). The Bankruptcy Code does, however, permit certain liens to be set aside, or avoided. In particular, and relevant to the motion before
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the court, under § 522(f) of the Bankruptcy Code,
the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under [Section 522(b)], if such lien is —
(1) a judicial lien; or
(2) a nonpossessory, nonpurchase-money security interest in any —
(A) household furnishings, household goods, wearing apparel, appliances, books, animals, crops, musical instruments, or jewelry that are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor.
(emphasis added). The debtor’s motion, while reciting that the storage lien “was created by a warehouse receipt dated March 23, 1990,” also states that “the items of personal property are stored at the Respondent’s facility.” The lien is therefore clearly a possessory, and not a nonpossessory, security interest.[2] Even if, therefore, as alleged, all the remaining requirements of § 522(f)(2) are met, the statute simply does not permit the court to grant the relief requested. Since relief could not be granted in any event, requiring reservice of the motion would accomplish no useful purpose.
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For the foregoing reasons, it is
ORDERED:
1. The motion to avoid lien is DENIED.
2. The debtor is advised that any motion under F.R.Bankr.P. 9023 to alter or amend this order, or any notice of appeal therefrom to the United States District Court, is required to be filed within 10 days of the entry of this order on the docket.
3. The clerk will mail a copy of this order to the debtor and to the respondent.