In re Sherman Wilson Hicks, Jr. and Dianna Lynn Hicks, Debtors

Summary

The United States Bankruptcy Court for the Western District of Arkansas denied the debtors’ motion under 11 U.S.C. § 522(f) to avoid the City of Fort Smith’s lien for costs incurred to remove a dead tree from their property. The court held that the lien arose as a statutory clean-up lien under Arkansas Code Annotated § 14-54-903, rather than as a judicial lien, because it arose automatically upon the occurrence of statutory conditions and did not require a hearing or adjudication. Accordingly, the lien was not avoidable under § 522(f).

Holdings

1. The City's lien was a statutory clean-up lien rather than a judicial lien because it arose by operation of Arkansas Code Annotated section 14-54-903 after the statutory conditions occurred and was limited to the City's abatement and related costs.
2. Arkansas Code Annotated section 14-54-903(f) made a public hearing permissive, not mandatory, when the property owner's name and address were known; therefore, no hearing was required before the City's lien arose in this case.
3. The appeal provision in Arkansas Code Annotated section 14-54-903(h)(1) did not apply because no governing-body determination was made or required when the City proceeded without a hearing.
4. The foreclosure and tax-collection enforcement mechanisms in Arkansas Code Annotated section 14-54-904 did not transform the City's statutory lien into a judicial lien.

Questions Presented

1. Whether the City of Fort Smith's lien for costs incurred in abating a municipal code violation was a judicial lien avoidable under 11 U.S.C. § 522(f), or a statutory lien not subject to avoidance.
2. Whether Arkansas Code Annotated section 14-54-903 required a hearing or provided an appeal right before the City's clean-up lien arose under the facts of this case.
3. Whether the enforcement mechanisms in Arkansas Code Annotated section 14-54-904 converted the City's statutory lien into a judicial lien.

Disposition

other