UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MISSOURI In re: Name of Debtor(s), Movant/Debtor, vs. Name of Creditor, Serve: Name of Person to be Served Respondent/Creditor. ) ) ) ) ) ) ) ) ) ) ) ) Case No. Chapter ___ EXAMPLE – (sample dollar values shown to illustrate partial lien avoidance calculation) NOTICE AND MOTION TO AVOID JUDICIAL LIEN OF [NAME OF CREDITOR] PLEASE TAKE NOTICE: ANY RESPONSIVE PLEADING IN OPPOSITION TO THIS MOTION MUST BE FILED IN WRITING NO LATER THAN TWENTY (20) DAYS FROM THE DATE OF SERVICE OF THIS MOTION AS SHOWN ON THE CERTIFICATE OF SERVICE. THE RESPONSE MUST BE IMMEDIATELY SERVED UPON THE UNDERSIGNED AND UPON ALL CREDITORS AND PARTIES IN INTEREST WHO WERE SERVED WITH THIS MOTION PURSUANT TO THE LOCAL RULES OF BANKRUPTCY PROCEDURE. THE COURT MAY GRANT THE MOTION WITHOUT FURTHER NOTICE TO ANY PARTY UPON EXPIRATION OF THE RESPONSE PERIOD IF NO RESPONSE IS FILED. IF A RESPONSE IS FILED, THE MOVANT SHALL SET THE MATTER FOR HEARING AND PROVIDE NOT LESS THAN TEN (10) DAYS WRITTEN NOTICE THEREOF TO THE RESPONDENT AND TO ALL CREDITORS AND PARTIES IN INTEREST SERVED WITH THE RESPONSE. 1. Debtor [name of debtor] commenced this case on [date of petition] by filing a voluntary petition for relief under Chapter ___ of the United States Bankruptcy Code. 2. The Court has jurisdiction pursuant to 28 U.S.C. Sec. 1334 to avoid and cancel the judicial lien held by [name of creditor] on real property of the Debtor pursuant to 11 U.S.C. Sec. 522(f). 3. On or about [date], [name of creditor] obtained a judgment against the Debtor and obtained a lien against the Debtor’s real property located at [address of property]. The judgment is entered of record in [style of case, case number], in [court name, American LegalNet, Inc. www.FormsWorkflow.com division and location]. The amount of the judgment is $ [dollar amount] plus court costs and attorneys’ fees, which constitutes the amount of the lien. 4. The fair market value of the real estate owned by Debtor and subject to the judicial lien is $ [dollar amount]. 5. The Debtor claims an exemption in the property referred to in the preceding paragraph in the amount of $ [dollar amount]. 6. At the time Debtor filed this bankruptcy petition, this real estate was subject to consensual mortgage lien(s) and other liens in the amount of $ [dollar amount]. 7. At the time Debtor filed this bankruptcy petition, the Creditor's judicial lien secured an indebtedness in the amount of $ [dollar amount] 8. The existence of the [name of creditor]=s lien on Debtor's real estate impairs exemptions to which the Debtor would be entitled under 11 U.S.C. Sec. 522(b). The applicable formula as set forth in Kolich v. Antioch Laurel Veterinary Hospital Inc. (In re Kolich), 273 B.R. 199 (B.A.P. 8th Cir. 2002) aff’d 328 F.3d 406 (8th Cir. 2003) is: Creditor's Judicial Lien [$14,822.85] Plus all other liens [$140,000.00] Plus exemptions [$15,000.00] Total [$169.822.85] Minus value of land interest absent liens [$165,000.00] Extent of Impairment [$4,822.85] 9. The extent of impairment exceeds the amount of the Creditor's judicial lien so that the entire judicial lien should be avoided. /OR/ The lien impairs Debtor’s exemption to the extent of $ [dollar amount], and the lien should be avoided to the extent of the impairment. WHEREFORE, Debtor prays for an order against [name of creditor] avoiding and canceling the judicial lien in the above-mentioned property to the extent of the lien impairs Debtor’s exemptions, and for such additional or alternative relief as may be just and proper. 2 American LegalNet, Inc. www.FormsWorkflow.com _______________________________ Attorney Name, Fed. & State Bar # Attorney for Movant/Debtor Address City, State, Zip Code Phone: Fax: e-mail CERTIFICATE OF SERVICE __________________________________ Printed Name 06/08 3 American LegalNet, Inc. www.FormsWorkflow.com