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Levinson v. R&E Property Corp.

August 27, 2008

MICHAEL LEVINSON, APPELLANT,
v.
R&E PROPERTY CORP., APPELLEE



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM OF DECISION AND ORDER

On December 20, 2006, Michael Levinson (the "Debtor" or the "Appellant") filed a petition under Chapter 13 of the Bankruptcy Code (the "Petition"). Presently before the Court is an appeal by the Appellant from an Order of United States Bankruptcy Judge Dorothy T. Eisenberg which denied his motion for an order pursuant to 11 U.S.C. § 522(f)(1), avoiding the judicial lien of R&E Property Corp. ("R&E" or the "Appellee") against his interest in certain real property located at 20 Meadow Drive, Woodmere, New York (the "Property"), owned by the Appellant and his wife as tenants in the entirety.

I. BACKGROUND

A. Factual Background

R&E is a secured creditor of the Debtor by virtue of a judgment in the amount of $428,576.79, entered in the Nassau County Clerk's Office on October 10, 2006. On October 21, 2006, the Debtor's Property, owned as a tenant in the entirety with his wife, was appraised at a value of $900,000, pursuant to an appraisal obtained by the Debtor. On December 20, 2006, the Debtor filed the Petition and a Chapter 13 Plan. On January 10, 2007, R&E filed a secured claim in the amount of $436,080.07 plus statutory interest from October 10, 2006. In May 2007, the Debtor filed an Amended Chapter 13 Plan, proposing payment to R&E in the sum of $51,172, plus interest.

In the Petition, the Debtor valued his interest in the Property at $103,706.10, based on an actuarial analysis obtained by the Debtor from an actuary, Barry Kaplan. The Debtor contended that the present value of his survivorship interest in the Property as a tenant in the entirety was 11% of the Property's total value, based upon the fact that he is three years older than his wife and that neither spouse receives disability payments. The total liens against the Property were as follows: (1) a home equity line of credit held by Bank of New York in the amount of $16,966.04; (2) a $20,000 mortgage held by Chase Bank with a balance of $84.44, which has since been satisfied; and (3) R&E's judgment lien in the amount of $436,080.07, plus interest.

On June 13, 2007, the Debtor moved for an order pursuant to 11 U.S.C. §522(f), avoiding R&E's judicial lien against the Property. The Debtor contended that the lien impaired his homestead exemption. Specifically, the Debtor argued that the home equity line of credit and the mortgage on the Property totaled $17,050.48. He further contended that he was entitled to a $50,000 homestead exemption. As a result, with his value in the Property totaling only $103,706.10, the Debtor claimed that after the homestead exemption and the home equity and mortgage liens, only $36,655.52 remained in his interest in the Property. He assertedthat, as a result, R&E's lien should be partially avoided and reduced to the remaining sum of $36,655.52.

B. The Bankruptcy Court's Decision

On June 26, 2007, thismotion was argued before the Bankruptcy Court. On July 24, 2007, the Bankruptcy Court denied the motion. In a comprehensive and detailed decision, Judge Eisenberg determined that under New York law, in a tenancy by the entirety, both spouses possess the right to the entire property because both parties are deemed "seized of the whole" estate. As a result, a debtor who holds real property by a tenancy in the entirety holds an interest in the entire property. Judge Eisenberg determined that the value of the Debtor's interest in the Property is the whole value of the Property, namely the sum of $900,000. She further rejected the Debtor's proposed use of actuarial tables, noting that such a valuation of the Property was speculative and should not be utilized in the context of section 522(f). As a result, Judge Eisenberg determined that R&E's lien did not impair the homestead exemption and denied the motion for lien avoidance.

C. The Present Appeal

On September 18, 2007, the Debtor appealed from the decision of the Bankruptcy Court. The Appellant contends that the Bankruptcy Court erred in valuing his interest in the Property at the total value of the Property or $900,000. The Appellant further contends that the Bankruptcy Court should have applied an actuarial analysis to value his interest in the Property. In sum, the Appellant claims that he is entitled to avoid R&E's lien.

In opposition, R&E contends that Judge Eisenberg correctly found that tenants by the entirety possess 100% interests in the property. R&E contends that actuarial analysis in the present case is inappropriate and that the cases relied upon by the Debtor are limited to sale of property by a trustee pursuant to section 363(h).

II. DISCUSSION

A. Standard Of ...


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