Menu    1 ABR 284 

HERBERT A. ROSS
U.S. Bankruptcy Judge


UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF ALASKA
605 West 4th Avenue, Anchorage, AK 99501-2296




____________________________________x 
In reCase No. A90-00337-HAR 
 In Chapter 7 
LEE MILLER, a/k/a GILBERT LEE 
MILLER, 
 Debtor(s) 
____________________________________x 
LEE MILLER, a/k/a GILBERT LEE 
MILLER, 
 Plaintiff(s), 
 v.Adv. No. A90-00337-001-HAR
NAVY FEDERAL CREDIT UNION, 
 Defendant(s).ORDER DENYING APPLICATION FOR DEFAULT JUDGMENT
____________________________________x 

      The debtor filed an adversary complaint to strip down the secured claim of Navy Federal Credit Union from about $3,883.64 to $1,200.00. He lodged a proposed order. Plaintiff's procedure does not appear to comply with Civil Rule 55, but the motion is denied for other reasons.

      The complaint does not state the basis for allowing stripdown in a Chapter 7 case. This court has ruled previously in In re Larson, 99 B.R. 1 (Bankr. Alaska 1989) that strip down is unavailable in a Chapter 7 case except in aid of exemptions. See TOP    1 ABR 285  § 522(c)(2)(A)(ii) of the Bankruptcy Code. The 1979 Mazda automobile involved in this adversary proceeding may be exempt property, but this certainly was not spelled out in the complaint.

      Apparently, the debtor is trying to redeem this property. § 722 of the Bankruptcy Code allows a redemption of tangible, personal property used for personal family or household use upon payment of the allowed secured claim. The complaint does not state that the personal property qualifies for redemption or even ask for redemption. If a redemption is sought, it, as well as the valuation of the Navy Federal Credit Union secured claim, could have been brought by motion under Bankruptcy Rules 3012 and 6018.

      A redemption requires a cash payment to the secured creditor. In re Polk, 76 B.R. 148, 150 (9th Cir.BAP 1987)

      Notwithstanding the failure of the defendant to answer, the defects noted cause this Court to deny the request for the order or a judgment which plaintiff seeks. Therefore,

      IT IS HEREBY ORDERED that,

      1. The application for default judgment is DENIED WITHOUT PREJUDICE to debtor modifying the complaint to make the necessary allegations to effect a redemption or to reopening the main case to bring the motion under Bankruptcy Rule 6018.

      2. Debtor shall file an appropriate amended complaint by January 31, 1991 or this adversary proceeding may be dismissed without prejudice.

TOP    1 ABR 286  3. The closing clerk is requested to defer sending the main case to storage until after February 15, 1991 since the debt may choose to move to reopen the main case and file a Bankruptcy Rule 6018 motion in the main case.



DATED: December 28, 1990. 
  
 _______________
 HERBERT A. ROSS
 Bankruptcy Judge


Serve: 
-James W. Hill, Jr., Attorney for Debtor 
-Navy Federal Credit Union, One Security Place, P.O. Box 3100, Merrifield, VA 22119 
-Peggy Gingras, Adv. Case Mgr. 
-Sheila Watkins, Closing ClerkH3280(HAR/lp)