Petition for Writ of Certiorari — Owen v. Owen

QOSEPH F. SPANMAL, JF.

o COLE 2k

7 —_ oo 7

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1989

DWIGHT H. OWEN

Petitioner

vs

HELEN OWEN

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ISIDORE KIRSHENBAUM

1900 Main Street

Sarasota, Florida

QUESTIONS PRESENTED

“ 1. Whether the Court of Appeals correctly

interpreted and applied 11 USC 522(f)(1)

in denying lien avoidance, with respect

to otherwise exempt property, based upon

Florida law which provides that certain

judgment or judicial liens create excep-

tions to the exemptions.

2. Whether a state law provision that

creates exceptions to state homestead

exemption for certain judgment liens based

upon the time that the lien attaches is a

premissible exemption provision for a

state which has “opted out" of the federal

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exemptions when such "exception" is a judi- ‘

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USC 522(f)(1). .

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STATEMENT PURSUANT TO RULE 28.1

a a Dwight H. Owen is an individual petitioner

Helen Owen is an individual respondent

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Statutes Involved

TABLE OF CONTENTS

Questions Presented

Statement Pursuant to Rule 28.1

Table of Contents

Index to Appendix

Table of Authorities

Opinions Below

Jurisdiction

Federal

State

Constitutional Provisions Involved

State A36,

Statement of the Case

Introduction

Fact Summary

Argument 8

Reasons for Granting the Writ 12

Conclusion 22

Certificate of Service 23

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INDEX TO APPENDIX

Opinion of the Court of Appeals

Opinion of District Court

Opinion of Bankruptcy Court

Order of the Court of Appeals

Denying Petition for Rehearing

and Suggestion for Rehearing

In Banc

Judgment of Court of Appeals

Judgment of District Court

Federal Statutes Involved

11 USC 522(b)

11 USC 522(f)

Constitutional Provisions Involved

Article 10, Section 4, Fla. Const.

Article 11, Section 5, Fla. Const.

State Statutes Involved

Chapter 222.20, Florida Statutes

iv

Al

Al3

A24

A28

A30

A36

A38

A39

TABLE OF AUTHORITIES

Cases

Aetna Insurance Co. v LaGasse

223 So. 2d 727 (Fla. 1969) 6

B.A. Lott, Inc. v Padgett

14 So. 2d 667 (Fla. 1943) 6

In Re Baxter

19 B.R. 674 (9th Cir. BAP 1982) 19

Bowers v Mozingo

399 So. 2d 492 (Fla. 3d DCA 1981) 5

In Re Brown

734 F. 24 119 (2d Cir. 1984) 13

Dominion Bank of the Cumberlands NA

v Nuckolls

780 F. 2d 408 (4th Cir. 1985) 13

First National Bank of Chipley v Peel

145 So. 177 (Fla. 1933) 5

Gilpen v Bower

12 So. 2d 884 (Fla. 1942) 21

ee ee rer ae eee

sn ee ee ee ee

In Re Hall

752 F. 2d 582 (llth Cir. 1985) 9,14,15,16

In Re Hershey 4

50 B.R. 329 (DC SD Fla. 1985) 17,19 :

Lamb v Ralston Purina Co.

21 So. 2d 127 (Fla. 1945) 6 ;

In Re Leonard |

866 F. 2d 335 (10th Cir. 1989) 13 |

Lewis v Manufacturer's National Bank |

364 US 603, 81 S Ct 347, 5 L Ed 24 |

323 (1961) 8 |

In Re Maddox : |

713 F. 2d 1526 (llth Cir. 1983) 16 .

In Re McManus |

681 F. 2d 353 (5th Cir. 1982) 15,17,18 | :

In Re Pelter

64 B.R. 492 (Bankr WD Okla 1986) |

In Re Pine

717 F. 24 281 (6th Cir. 1983) cert

den

L Ed 2d 183 (1984)

466 US 928, 104 S Ct 1711, 80

vi

se es ae a ae

Porter-Mallard Co. v Dugger

157 So. 429 (Fla. 1934) 7

| Quigley v Kennedy & Ely Insurance, Inc.

| 207 So. 2a 431 (Fla. 1968) 20

° | In Re Taylor

| 73 B.R. 149 (9th Cir. BAP 1987) 17

In Re Thompson

750 F. 2d 628 (8th Cir. 1984) 13

In Re Zahn

605 F. 2a 323 (7th Cir. 1979) cert den

444 US 1075, 100 S Ct 1072, 62 L zd 24 :

757 (1980) 7 :

vii 3

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OPINIONS BELOW

The July 11, 1989 opinion of the llth

Circuit Court of Appeals, whose judgment

is herein sought to be reviewed, is repor-

ted at 877 F.2d 44 (llth Cir. 1989) and is

reprinted in the Appendix to this petition

at Al. The prior opinion of the United

States District Court, Middle District of

Florida, entered on June 7, 1988, is repor-

ted at 86 B.R. 691 (DC MD Fla 1988), and is

reprinted in the Appendix at Al3. The

prior opinion of the United States Bankrup-

tcy Court, Middle District of Florida, en-

tered on February 8, 1988, was unreported

and is reprinted in the Appendix at A24.

5 a a

JURISDICTION

The decision of the llth Circuit

Court of Appeals was entered on the llth

day of July 1989 and affirmed the decision

of the United States District Court, Middle

District of Florida. (Al) A timely filed

Petition for Rehearing and Suggestion for

Rehearing In Banc were denied on the 3i1st

day of August 198%. (A28) This Court has

jurisdiction pursuant to 28 USC 1254(1).

STATUTES INVOLVED

Title 11, United States Code §§ 522(b),

522(f), reproduced at (A33-35).

Section 222.20, Florida Statutes, re-

produced at (A39).

Poe ae GN OS PSS Oy Oe ara SF

STATEMENT OF THE CASE

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1. INTRODUCTION

The Petitioner, the debtor in a

Chapter 7 bankruptcy case, sought to

avoid Respondent's judgment or judicial

lien, pursuant to 11 USC 522(f)(1), upon

the debtor's homestead real property

which was claimed and allowed as exempt

in the bankruptcy proceedings. The courts

below held the lien to be unavoidable be-

cause the law in Florida, which has "opted

out" of the federal exemptions, permits

enforcement of this lien. Under state

law, the attachment of Respondent's judg-

ment as a lien created an "exception" to

the otherwise available exemption.

Petitioner contends that the plain

language of 11 USC 522(f) permits avoi-

dance and that the state created "excep-

tion" under 11 USC 522(b) remains subject

3

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to the provisions of 11 USC 522(f). The

Petitioner also contends that to permit

state law definitions of "exceptions"

to include judgment or "judicial" liens

(to which 11 USC 522(f£) should apply),

would authorize state law nullification,

or “opting out", of the federal lien

avoidance provision, a result not con-

sistent with proper statutory interpre-

tation.

II. THE FACTS

There is no dispute as to the facts.

The Respondent obtained a money judgment

against the Petitioner in circuit court,

Manatee County, Florida in December 1975.

A certified copy of that judgment was re-

corded in the public records of Sarasota

County, Florida on 29 July 1976. At that

time Petitioner owned no property in Sara-

sota County.

On 27 November 1984, Petitioner ac-

quired record fee ownership of the real

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property at issue herein, Unit 304 of En-

bassy House, a condominium, located in

Sarasota County. At that time, Petitioner

was a single man and not "the head of a

family" as was then required for entitle-

ment to the Florida Constitutional home-

stead exemption. Article 10, Section 4,

Fla. Const.

On 6 November 1984 the citizens of

Florida approved an amendment to the con-

stitutional homestead provision which

substituted "a natural person" for the

previously required “head of a family".

That amendment became effective

on 8 January 1985. Article 11, Section

5(c), Fla. Const.

Under Florida law, no judgment is

a lien upon any property until property

is owned by the judgment debtor. First

National Bank of Chipley v. Peel, 145 So.

177 (Fla. 1933), Bowers v. Mozingo, 399

So. 2d 492 (Fla. 3d DCA 1981). A duly

5

recorded judgment against a debtor be-

comes a lien upon that debtor's real pro-

perty at the time the debtor acquires

ownership of real property in the county

in which that judgment is recorded. B.A.

Lott, Inc. v. Padgett, 14 So. 2d 667

(Fla. i943). Thus, the Respondent's

judgment attached as a lien at the time

the above property was acquired by Peti-

tioner on 27 November 1984. In addition,

a judgment which attaches as a lien upon

the debtor's property at a time when the

debtor is not eligible to claim the home-

stead exemption will remain enforceable

despite the fact that the debtor later

qualifies for the exemption. Aetna Insur-

ance Co. v. LaGasse, 223 So. 2d 727 (Fla.

1969). Although the attachment of such a

lien does not prevent subsequent acquisi-

tion of the homestead right, see Lamb v.

Ralston Purina Co., 21 So. 2d 127 (Fla.

1945), such a lien will remain enforceable

6

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even as to homestead property. See Porter-

Mallard Co. v. Dugger, 157 So. 429 (Fla.

1934). As a result, under state law the

Respondent's lien is enforceable despite

acquisition of the right to assert the exemp-

tion.

On 13 January 1986, the Petitioner

filed his Chapter 7 bankruptcy petition

and claimed the above property as exempt

as Ais homestead on his B-4 schedule, in

accordance with Chapter 222.20, Florida

Statutes (A39), the provision which limits

Florida debtors to state, rather than

federal, exemptions in bankruptcy. The

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bankruptcy court allowed this exemption

for purposes of general administration of |

the estate. The exemption was allowed

because the relevant date for determining

exemption entitlements is measured by the

exemption provisions in effect on the

date of the filing of the petition. 11

USC 541, In Re Zahn, 605 F. 2d 323 (7th

7

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Cir. 1979) cert den 444 US 1075, 100

S Ct 1072, 62 L Ed 2d 757 (1980), Lewis

v. Manufacturer's National Bank, 364 US

603, 81 S Ct 347, 5 L Ed 2d 323 (1961).

In due course the Petitioner received

his bankruptcy discharge. Thereafter, the

court permitted the case to be re-opened,

at Petitioner's request, for the purpose

of filing a motion to avoid Respondent's

lien pursuant to 11 USC 522(f). The

order of 8 February 1988 (A24 ) in which

the bankruptcy court held the lien to be

unavoidable is the order appealed to the

District Court and Court of Appeals. The

District Court (Al3 ) and Court of Appeals

(Al) both affirmed the bankruptcy court.

III. ARGUMENT

In denying lien avoidance, the opi-

nions below have focused primarily upon

the survivability of the lien provided

by state law. The opinions have failed

to independently apply the plain language

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of 522(f). The bankruptcy court opinion

at (A26 ), quoted by the Court of Appeals

at (A 5 ), recites only the rule of survi-

vability under state law. Furthermore,

in concluding that "a judicial lien"

could be construed as the characteristic

which creates an "exception" to the exemp-

tion, the Court of Appeals not only fail-

ed to observe prior llth Circuit prece-

Gent, see In Re Hall, 752 F. 2d 582 (llth

Cir. 1985), but set forth a prescription

for nullification of the "judicial lien

as an impairment" concept so clearly set

forth in 522(f£)(1).

In other words, Congress specifically

allowed states to devise their own lists

of types and quantities of property which

could be exempted in bankruptcy. This is

the "opt out” provision found in 522(b).

No similar option is accorded to the states

under 522(f), however. The lien avoidance

provision under 522(f) applies to both

9

state and federal exemptions alike. Each

section serves distinct purposes and well

settled principals of statutory construc-

tion requires that those sections be cons-

trued in such a way as give effect to each.

522(b) is designed to identify exemptions.

522(f) is designed to permit removal of

a certain obstacles to the enjoyment or

assertion of those exemptions. A char-

acteristic which is identified under

522(f) as an obstacle to the enjoyment or

assertion of an exemption can not at the

same time be designated, by state law, as

an “exception” to the exemption descri-

bed in 522(b). Such a definition under

522(b) would, all too obviously, nullify

Or defeat the use and purpose of 522(f).

Not only is such a result inconsistent

with proper statutory construction, but

it can not be assumed that Congress inten-

ded that exemptions under 522(b) could be

defined in such a way, under the “opt out”

10

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provision, that 522(f) would be rendered

functionless. The precise situation out-

lined above is presented in Owen and the

decision of the Court of Appeals fails to

properly resolve it. See the opinion of

the Court of Appeals at (A 8-9).

Here, the Petitioner meets the re-

quirements for lien avoidance, i.e. 1)

the lien is a judicial lien within the

code definition of that term, 2) the lien

has attached to his property and is enfor-

ceable against it unless avoided, hence

impairment, 3) the property qualified as

his homestead on the date of the filing

of the Chapter 7 petition and therefore

is an exemption to which the debtor

“would have been entitled."

11

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REASONS FOR GRANTING THE WRIT

The essential question presented in

this case concerns the relationship be-

tween two significant code provisions, i.e.

11 USC 522(b) and 11 USC 522(f). The

proper application of the federal lien

avoidance provision, 522(f), to state

exemption schemes enacted pursuant to

the “opt out" provision of 522(b) is an

issue which has produced conflicting de-

cisions among the circuits, conflicting

decisions within the llth Circuit and

uncertainty as to the scope of state

authority under the Code.

CONFLICT AMONG THE CIRCUITS

1. The following cases have indicated

that 522(f) must be applied in states

which have enacted their own exemptions.

The 2d, 4th, 8th, 10th and llth circuits

indicate that it is federal, rather than

12

state, law which governs lien avoidance.

In Re Brown, 734 F.2d 119 (2d Cir. 19864)

authorized avoidance of a judicial lien

where, in the absence of the lien, the

exemption could be enjoyed. Dominion

Bank of the Cumberlands, NA v Nuckolls,

780 F.2d 408 (4th Cir. 1985) authorized

avoidance of a liem pursuant to 522(f)

notwithstanding its enforceability under

state law. In Re Thompson, 750 F.2d 628

(8th Cir. 1984) noted that, although state

law may control exemptions, federal law

determined lien avoidance availability,

and that exemption statutes and lien avoi-

dance provision served different purposes.

In Re Leonard, 866 F.2d 335 (10th Cir.

.

1989) cited the rule that states may not

“opt out" of lien avoidance provision,

noting, at pg 336-337,

",...The debtor's right to claim

avoidance of a lien on property

under 522(f) is determined by

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considering whether the property,

if unencumbered, is exempted under

the state statutory exemptions..."

and concluding that avoidance was appro-

priate where state law allowed such pro-

perty to be exempted if unencumbered.

In Re Hall, 752 F.2d 582 (llth Cir. 1985)

the Court, in reviewing a Georgia statute

which permitted a debtor to exempt pro-

perty only if it was not encumbered by

a lien, stated

"This Section 522(f) operates to ‘

permit a debtor to avoid the fixing

of a lien on property if that avoid-

ance would allow the debtor to enjoy

the exemption. The very purpose of

the statute is to permit debtors to

Claim, or exempt, property com-

pletely or partially secured by an

otherwise lid lien. To permit

states to inhibit the lien avoid-

ance provision by simply defining

all lien encumbered property as ‘not

exempt’ would render the statute

useless, a result inconsistent with

the well established principal of

statutory construction requiring that

all parts of an act be given effect

if at all possible" -

The lien avoidance provision was intended

to apply to state exemptions, notwith-

standing state limitations on the ability

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of the debtor to exempt lien encumbered

property. Hall, above, at pg 587

The foregoing cases indicate that

states may not opt out of lien avoidance

even though they have chosen state exemp-

tions. The Court of Appeals in Owen has,

however, effectively permitted Florida to

“opt out" of lien avoidance by approving .

a state law "exception" for property sub- |

ject to an otherwise avoidable lien. ?

2. The following cases have approved

state law limitations on lien avoidance

under 522(f). The 5th and 6th circuits

permit state definitions of exemptions .

which renders lien avoidance unavailable.

In Re Pine, 717 F.2d 281 (6th Cir. 1983)

cert den 466 US 928, 104 S Ct 1711,

80 L Ed 2d 183 (1984), concluded that the

authority given states under 522(b) to

select exemptions included the authority

to exclude encumbered property from those

exemptions. In Re McManus, 681 F. 2d 353,

15

a ee re. ee ee ee

(Sth Cir. 1982) similarly concluded that

state definitions of exceptions could

preclude lien avoidance. Because Louisi-

ana law had defined otherwise exempt pro-

perty as non-exempt if encumbered by a

lien no impairment existed, hence lien

avoidance was not applicable.

This state defined "exception" to

exemption for lien encumbered property

is the basis for denying lien avoidance

in Owen as well.

CONFLICT WITHIN THE 11TH CIRCUIT

From the foregoing it appears that

the Owen decision can not be reconciled

with llth circuit precedent as stated in

In Re Hall, above, and that Owen is most

Closely aligned with the 5th and 6th cir-

cuits. In Hall and in In Re Maddox, 713

F. 2€ 1526 (llth Cir. 1983), the lith cir-

cuit clearly adopted the view that states

may not “opt out" of lien avoidance and

that 522(f) must be applied independently

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of the state exemptions. In Owen, how-

ever, this position was abandoned for the

5th and 6th circuit propositions that 522(f)

could be limited or precluded by state

definitions created under 522(b). In

short, “impairments" under 522(f) could

be reclassified as "exceptions" under

522(b). Although not express, the con-

flict is, nevertheless, unmistakeable.

STATUTORY INTERPRETATION

Because 522(f) is a federal provi-

sion which contains no state option some

courts have interpreted the Pine and Mc-

Manus reasoning as being an impairment or

frustration of the federal purpose and

therefore contrary to the requirements of

the Supremacy Clause. See In Re Pelter,

64 B.R.492 (Bankr WD Okla 1986), In Re

Hershey, 50 B.R.329 (DC SD Fla 1985),

In Re Taylor, 73 B.R. 149 (9th Cir BAP

1987, see also Judge Dyer's dissent in

McManus, 681 F.2d 353, 358 (any conflict

17

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between the state lien conservation pro-

vision and the federal lien avoidance pro-

vision must be constitutionally resolved

in favor of federal law).

It is clear that 522(f) would have

no function if the McManus view with res-

pect to state definitions were correct.

Such an intent should not be attributee

to the Congress. If, indeed, states were

to have the power which McManus suggests,

it is for the Congress to so provide.

The plain language of 522(f) does

indicate that a lien is avoidable where

the lien impairs an exemption "to which

the debtor would have been entitled."

This denotes a condition contrary to fact,

a point which is further indicated by the

following

"Subsection (f) protects the

debtor's exemptions, his discharge

and thus his fresh start by permit-

ing him to avoid certain liens on

exempt property. The debtor may

avoid a judicial lien on any proper-

ty to the extent that the property

18

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could have been exempted in the ab-

sence of the lien...The avoidance

power is independent of any waiver

of exemptions. H.Rep. No. 95-595,95th

Cong. lst Sess. (1977) 362; S.Rep No.

95-989, 95th Cong. lst Sess. (1978)76

(under Sub-section e); U.S. Code Cong.

& Admin. News 1978, pp. 5787, 6318.

The plain language of the code also

does not contain any "time of attachment"

element under 522(f), although there is

an indication in the Owen bankruptcy

court opinion that such was a considera-

tion. "Time of attachment" of the lien

is not relevant under 522(f). The cases

of In Re Hershey, 50 B.R. 329 (DC SD Fla

1985) and In Re Baxter, 19 B.R. 674 (9th

Cir BAP 1982) both authorized lien avoi-

dance even though, as in Owen, the lien

attached prior to the availability of the

exemption.

SUMMARY

Each of the foregoing reasons is suf-

ficient justification for granting the writ.

It has been the policy of the state of

19

Florida to afford liberal construction to

the homestead exemption. Quigley v. Ken-

nedy & Ely Insurance, Inc., 207 so. 24d

431 (Fla. 1968). It is also the policy

of the Code to assure the debtor a fresh

start. Neither interest is served by the

construction placed upon the statutory

provision in this case. Furthermore,

the construction of the code provisions

authorized in Owen, which amounts to a

recipe for the defeat of federal lien

avoidance at the hands of state law, is

improper interpretation of the federal

Statute. It is for Congress to set forth

the limitations authorized by Owen and

the 5th and 6th circuit cases, yet the

Congress has not seen fit to do so.

If the lien in Owen is not avoided

the Petitioner's home will be lost, the

very property which the state and federal

provisions were designed to protect. The

exemption, which is of constitutional

on

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origin and magnitude will be defeated by

the judgment lien, a mere creature of

statute which by its very nature operates

indiscriminately upon property and consti-

tutes no estate in the property for the

lienholder. See Gilpen v Bower, 12 So.

2d 884 (Fla. 1943).

The lack of uniformity in the appli-

cation of the lien avoidance provision

in states using their own exemptions is

continued in Owen, yet requires resolu-

tion by this Court. Until resolved by

this Court, the divergence of interpre-

tation outlined above will persist and,

in some circuits, frustration of Congres-

sional intent will continue.

21

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CONCLUSION

The Petition for Writ of Certiorari

should be granted for the foregoing rea-

sons. In the alternative, the Petitioner

requests the Court to grant summary rever-

Sal pursuant to Rule 23.1 of the Rules of

the Supreme Court.

Respectfully submitted,

Isidore Kirshenbaum

1900 Main Street, Suite 214

Sarasota, Florida 34236

(813) 351-2883

Attorney for Petitioner

22

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CERTIFICATE OF SERVICE

I hereby certify that three true and

correct copies of this Petition have been

furnished to John R. Shuman, Esq.,

2555 Enterprise Rd., Clearwater, Florida

34623, Attorney for Respondent, Helen Owen,

by prepaid first class mail this 79 &

day of December, 1989.

Isidore Kirshenbaum, P.A.

nN

By

1900 Main St., Suite 214

Sarasota, FL 34236

(813) 351-2883

Attorney for Petitioner

23

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APPENDIX

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OLE OLE IED FD! PANS

ES I RE TEN TRA OTE Nt A AS AT cl Ae a A a Fi tar + Wy

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In Re Dwight H. OWEN, Debtor

Dwight H. OWEN, Plaintiff-Appellant

Vv

Helen OWEN, Defencant-Appellee

No 88-3499 |

United States Court of Appeals

Eleventh Circuit

July 11, 1989

Appeal from the United States District

Court for the Middle District of Florida

Before POWELL*, Associate Justice

(Retired), United States Supreme Court,

RONEY, Chief Judge, and TJOFLAT, Circuit

Judge.

RONEY, Chief Judge:

In this case, both the bankruptcy court

*Honorable Lewis F. Powell, Jr., Associate Justice

of the United States Supreme Court, Retired, sit-

ting by designation.

Al

and the district court concluded that 11

U.S.C.A. § 522(f) of the Bankruptcy Code

did not permit a debtor to avoid a judi-

cial lien on Florida homestead property

when state law creating the homestead

exemption would permit the lien to be en-

forced. We affirm.

The facts are not in dispute. The dates

are important to show that the lien was

effective prior to the date the debtor ob-

tained homestead status for the property.

Creditor Helen Owen obtained a final judg-

ment against the debtor Dwight Owen in

Manatee County Circuit Court on December

1, 1975, and a certified copy was recorded

in the Sarasota County Public Records on

July 29, 1976. Such a recorded judgment

becomes a lien upon real property there-

after acquired by the judgment debtor, un-

less the property was exempt from all judg-

ment liens. B.A. Lott, Inc. v. Padgett,

153 Fla. 304, 14 So. 2d 667 (1943);. Porter-

A2

Mallard Co. v. Dugger, 117 Fla. 137, 157

So. 429 (Fla. 1934).

In November 1984, the debtor bought a

condominium unit in Sarasota County. At

the time of the purchase, the debtor was

not entitled to a homestead exemption

from judgment liens under Article 10, Sec-

tion 4 of Florida's constitution, be-

cause the section then allowed the

exemption only to the "head of a family".

An amendment to this section, allowing

the exemption for "a natural person" did

not become effective until January 8,

1985. Thus, at the time of the purchase,

the judgment lien attached to the property.

The debtor filed a Chapter 7 bankruptcy

petition in January 1986 and claimed the

condominium as Florida homestead property,

exempt from administration by the bankrupt-

Cy court. Under Florida law, constitutional

homestead property is exempt from the claims

of creditors not secured by a lien on the

A3

property. See Fla. Stat. §222.20; Fla.

Const. Art 10, §4. The bankruptcy court,

in an August 13, 1986 order, allowed the

property to be exempt from general admini-

stration by the trustee, but specifically

did not decide whether Helen Owen's judg-

ment lien against the property would be

enforceable.

The debtor was discharged on May 13, 1986.

In April 1987, however, the debtor was given

permission to reopen the bankruptcy case

pursuant to 11 U.S.C.A. § 350. He then

moved, according to Rule 4003(d), to

seek an avoidance of Helen Owen's judg-

ment lien, under 11 U.S.C.A. § 522(£)!.

After hearing argument, the bankruptcy

court on December 1, 1987, granted the

1. Section 522(f) provides in relevant part:

Notwithstanding any waiver of exemptions, the deb-

tor 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 woulc

have been entitled under subsection (b) of this

section, if such lien is --

(1) a judicial lien...

A4

Ee

debtor's motion to avoid the lien. There-

after, however, Helen Owen filed a timely

motion to amend or make additional find-

ings of fact and to alter or amend this

order. On February 8, 1987, the bankrupt-

cy court reversed its December 1 ruling,

finding for the judgment lienholder, stat-

ing;

Clearly, if at the time the certified

copy of the judgment was recorded in the Pub-

lic Records, the Debtor owned the property

but for whatever reason did not qualify to

claim the property as homestead, such judg-

ment lien would be clearly non-avoidable un-

Ger 522(f) of the Bankruptcy Code. As the

judgment lien in this case attached before the

property qualified as homestead, the judgment

lien is not of the type included within the

ambit of 522(f)(1) and may not be avoided,

The district court upheld the bankruptcy

court's determination that Helen Owen's lien,

which substantially predated the acquisi-

tion of the property and the filing of the

bankruptcy petition, was not avoidable un-

der section 522(f). 86 B.R. 691 (M.D. Fla.

1988).

A5

When a bankruptcy petition is filed, all

of the debtor's property becomes the pro-

perty of the bankruptcy estate. 11 U.S.C.A.

§ 541(a). After the property comes into

the estate, the debtor may claim certain

items as exempt from the bankruptcy estate2.

The federal statute provides a "laundry

list" of property available for exemption,

unless a state "opts out" of this list

and allows its residents to take advantage

only of the state-created exemptions.

2. 11 U.S.C.A. §522(b) provides in relevant part:

Notwithstanding section 541 of this title, an indi-

vicual debtor may exempt from property of the estate

either--

(1) property that is specified under subsection (d)

of this section, [the federal list], unless the

state law that is applicable to the debtor under

paragraph (2)(A) of this subsection specifically

does not so authorize; or, in the alternative,

(2)(A) any property that is exempt under Federal

law other than subsection (d) of this section, or

State or local law that is applicable on the date

of the filing of the petition at the place in

which the cebtor's domicile has been located for

the 180 days immediately preceding the date of

the filing of the petition, or for a longer por-

tion of such 180-day period than in any other

place...

A6

lS a, EN Oe A eae ge ek ee nie. > Seem ee ' -, - Oe heel 2 Oh he ph “f tt het el oe

-

Florida has chosen to opt out of the bulk

of the federal laundry list3. Accordingly,

Florida state law governs the question of

whether property may be exempted from the

bankruptcy estate.

The claimed exemption here is created by

Florida's constitutional homestead provi-

Sion. Article 10, § 4 of the Florida Con-

stitution states in part that homestead

property is not subject to foreclosure of

a judgment lien‘.

3. See Fla. Stat. § 222.20 (opt out); section

220.201 (allowing exemption described in suhsec-

tion (d)(10) relating to debtor's rights to re-

ceive benefits such as social security and unem-

ployment compensation). Section 222.20 further

provides that "[n]Jothing herein shall affect the

exemptions given to residents of this state by

the State Constitution ane the Florida Statutes."

4. (a) There shall be exempt from forced sale

uncer process of any court, and no juccment, de-

cree or execution shall be a lien thereon, ex-

cept for the payment of taxes and assessments

thereon, obligations contracted for the purchase,

improvement or repair thereof, or obligations

contracted for house, field, or other labor per-

formed on the realty, the following property

owned by a natural person:

(1) a homestead,..sif located within a munici-

pality, to the extent of one-half acre (cont, )

A7

Section 522(f) allows the debtor to

avoid certain liens in order to protect

against impairment of an exemption to

which he would otherwise be entitled.

There is no impairment of an exemption

here, however. Under state law, the home-

stead exemption precludes attachment of a

judgment lien except where the lien came

into existence prior to the property at-

taining homestead status. Fla. Const.

Art. 10, §4; see Bessemer v. Gersten,

381 So. 2d 1344 (Fla. 1980); Aetna Ins.

Co. v. LaGasse, 223 So. 2d 727 (Fla.

1969); Volpitta v. Fields, 369 So. 24d

367 (Fla. 4th DCA), cert denied, 379 So.

2d 204 (Fla. 1979); In Re Valdes, 81

B.R. 141 (Bankr. S.D. Fla. 1987). Where,

as here, the judgment attached prior to

4. (cont.) of contiguous land, upon which the

exemption shall be limited to the residence

of the owner or his family.

A8

the homestead right, there is no impair-

ment because the exemption is specifi-

cally subject to this exception.

The debtor here does not dispute that

Helen Owen's lien on his property would

be enforceable under Florida law because

it attached to the property before the

debtor was able to avail himself of the

homestead right. He argues, though, that

section 522 (f) allows him to avoid the

lien because he now qualifies for the

homestead exemption and if the lien did

not exist, he could claim the exemption.

In effect, he argues that federal law gives

him an exemption that state law would not,

even though the exemptions in Florida are

defined by state law because of its "opt-

ing out" of the federal exemptions.

Congress did not intend through section

522(f£), however, to provide a federal exemp-

tion greater than that pro _ected by state

law where the exemption is created by state

A9

law. The legislative history of section

522(f) indicates that Congress sought to

protect debtors from the race to judoment

often occurring just prior to a debtor

filing bankruptcy. That is, when it ap-

pears that a debtor is having trouble

meeting his obligations, creditors rush

to reduce their interests to judgment,

attaching all of the debtor's property,

including that which would otherwise be

exempt. Thus, when the debtor files, he

has no unencumbered property left with

which to "make his fresh start." Accor-

dingly, section 522(f) was adopted to

..-give[] the debtor certain rights

not available under current law with

respect to exempt property. The deb-

tor may avoid any judicial lien on

exempt property, and any non-purchase

money security interest in certain

exempt property such as household

goods. The first right allows the

Al10

Gebtor to undo the actions of credi-

tors that bring legal action against

the debtor shortly before bankruptcy.

Bankruptcy exists to provide relief

for an overburdened debtor. If a

creditor beats the debtor into court,

the debtor is nevertheless entitled

to his exemptions....

H.R.Rep.No. 595, 95th Cong., lst Sess.,

reprinted in U.S.Code Cong. & Ad. News

5787, 6087 (1978). This is not the case

here. The debtor never held this proper-

ty exempt from this judicial lien.

We also hold that the bankruptcy judge

acted within his authority under the lo-

cal rules to issue the February order

without affording a hearing to the debtor.

Rule 10l1(c) of the local bankruptcy rules

allows the judge to suspend the reguire-

ments of the rules in order for the case

to proceed at the court's direction.

Further, the court had before it the entire

All

record and, under the rules, need only

afford notice and a hearing as is "“appro-

priate in the particular circumstances."

Here, it was appropriate to rule based

on the papers filed by the parties.

For the foregoing reasons, the decision

of the district court is

AFFIRMED.

Al2

eee, “ See ae es OES oe

ee ee

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

IN RE:

DWIGHT H. OWEN

Debtor

/

DWIGHT H. OWEN

Appellant

vs Appellate Case No.

HELEN OWEN 88-404-CIV-T-17

Appellee

/

APPEAL

FROM THE UNITED STATES BANKRUPTCY COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

ORDER ON APPEAL

This cause is before the Court on

appeal from the Order on Motion to Amend

or Make Additional Findings entered Feb-

ruary 8, 1988, by Bankruptcy Judge Alex-

Al3

a

ancer L. Paskay, and request for oral ar-

gument. The request for oral argument is

denied.

ISSUES:

I. Whether or not the trial court

correctly ruled that a debtor could not

invalidate a judicial lien, pursuant to

s522(f)(1) of the Bankruptcy Code, which

preceded debtor's homestead exemption un-

der Florida law and arose prior to debtor's

acquisition of the subject property.

II. Whether or not the trial court

correctly entered an order on motion to

amend or make additional findings of fact

pursuant to bankruptcy rule 7052(b) and to

alter or amend the order on motion to avoid

judgment lien pursuant to bankruptcy rule

9023, without notice and a hearing.

STANDARD OF APPELLATE REVIEW

The applicable standard of appellate

review is that findings of fact shall not

be set aside unless clearly erroneous.

Al4

le OR a ee | he. Me —_ "+.

Griffin v Missouri Pacific Railway Co.,

413 F.2d 9 (5th Cir.1969); Bankruptcy

Rule 8013. Appellant is entitled to an

independent de novo review of all conclu-

sions of law and the legal significance

accorded to the facts.

FACTS

Helen Owen obtained a final money

judgment against the debtor on December

1, 1975, in Manatee County Circuit Court.

The certified judgment was recorded in

Sarasota County, Florida, on July 29,

1976, O. R. 1127, Page 1494. At that

time Appellant did not own property in

Sarasota County. On November 27, 1984,

debtor acquired a fee simple ownership of

the real property known as Unit No. 304,

Embassy House. The deed for the property

was recorded in the public records of

Sarasota County, on November 27, 1984,

O. R. 1732, Page 676.

At that time the debtor was a single

Al5

a

man and not the “head of a family", within

the meaning of Article 10, Section 4, Flo-

rida Constitution, relating to the home-

stead exemption. On November 6, 1984,

the homestead provision was amended sub-

stituting “a natural person" for “a head

of a family". The amendment became effec-

tive January 8, 1985.

Appellant, a single man, filed a Chap-

ter 7 bankruptcy petition on or about

January 13, 1986. The petitioner clain-

ed real property known as Unit 304, Embassy

House, located in Sarasota County, Florida,

as exempt property in the B-4 of the

Florida Constitution and Chapter 222.20,

Florida Statutes, exempting homestead pro-

perty.

A creditor, Helen Owen, filed an ob-

jection to the exemption claim on January

22, 1986. On August 123, 1986, the bank-

ruptcy judge overruled the objection and

designated the property exempt and immune

Al6

from the general administration of the

Trustee. The debtor gid not resolve the

issues of post-petition lien status or

debtor's rights as to avoidability or en-

forceability of Helen Owen's lien.

speeiient was granted discharge on

May 13, 1986. On December 15, 1986, the

debtor filed an application to re-open the

case for the purpose of seeking to avoid

the lien of Helen Owen, pursuant to 11 USC

522(f)(1). The case was reopened by the

bankruptcy court. On April 13, 1987, the

debtor filed a motion to avoid the lien

and Helen Owen filed a response. Argu-

ment was had before the court on August

21, 1987.

On December 1, 1987, the bankruptcy

court entered an order granting the motion

to avoid the lien. Thereafter, Helen Owen

filed a motion to amend or make additional

findings of fact, pursuant to Rule 7052(b),

and to alter or amend the order of Decem-

Al7

IS Lae ae ee ee eT hy Pe ee Pee eee. hk ee ee ee ee ee ee

ber 1, 1987. On February 8, 1988, the

court entered an order reversing the Decem-

‘ber 1 ruling. The order found the lien

sought to be avoided was not of the type

included in Section 522(f)(1) and denied :

debtor's motion to avoid the lien. This

is the order appealed from by Appellant.

DISCUSSION

The Court will address the procedural

validity of the bankruptcy court's entry

of order on motion to amend, filed Febru-

ary 8, 1988. The order states that the

cause was before the court on ex parte con-

sideration of Helen Owen's motion to amend.

The court considered the motion to amend

and the prior record in the cause. The

court did not require or allow a response

from debtor to the motion to amend, nor

was argument or hearing allowed on the

motion.

Upon due consideration, the Court

finds the brief of Appellee on this issue

Als ee

-

a en ad eS ae. eee Sos . 7" 7 ane 3 a Se PO Te ee eae “a Pe “> ‘a’ 26 or or’ nx: oe. er

persuasive. The local rules of the bank-

ruptcy court imbues the bankruptcy judge

‘with the power to suspend the requirements

of the rules and for proceedings in accor-

dance with the court's direction. Rule

101, Local Rules of the Bankruptcy Court.

The Court specifically finds the order of

February 8, 1988, to have been entered

within the authority of Judge Paskay.

The second issue is whether or not

the bankruptcy court was in error in amend-

ing its previous order and finding that

the lien of Helen Owen on the property in

question was not avoidable. Appellant

seeks to avoid the lien of Helen Owen un-

der 11 USC s522(f), which states in rele-

vant part:

Notwithstanding any waiver of exemp-

tions, 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 subsection

(b) of this section, if such lien is --

(1) a judicial lien;

Al9

7 a. ees ee eS ee ee Ls Oe

The judgment of Helen Owen, recorded in the

public records on July 29, 1976, attached

as a lien, instantly, upon the acquisition

of title by the debtor on 27 November 1984.

(Appellant brief, pg. 10). A previously

attached judgment lien will prevail over

an after acquired right of homestead.

Pasco v Harley, 75 So. 30 (Fla. 1917);

Aetna Insurance Co. v LaGrasse, 223 So. 2a

727 (Fla. 1967); Bessemer v Gersten, 381

So. 2d 1344 (Fla. 1980). Debtor was not

entitled to the homestead exemption on the

purchase of the real property; the amend-

ment allowing the exemption did not become

effective until January 8, 1985. Under

state law, the lien would remain enforce-

able against this homestead property. (Ap-

pellant's brief, pg. 11).

The bankruptcy discharge has no effect

on the lien. A judgment attaching to pro-

perty and becoming a lien prior to bank-

ruptcy survives the discharge and remains

A20

-* =. 2

7 4 eee q bd

os pa . #0 Oe eee eo

~ “ * - os

enforceable, to the extent of the state law.

Barnett Bank v Harris, 421 So. 2d 822 (Fla.

‘lst DCA 1982); Albritton v General Portland

Cement, 344 So. 2d 574 (Fla. 1977). Appel-

lant contends however that 11 USC s522(f),

if affirmative action is taken by a deb-

tor to invoke the provisions of that sec-

tion, renders the lier herein unenforceable.

Section 522(f) provides for the avoid-

ance of security interests on certain ex-

empt items, to the extent the lien impairs

an exemption to which the debtor is entitled.

Even though Florida has "opted out" of the

exemptions provided in 11 USC s522(d), the

provisions of s522(f) are applicable to

Florida bankruptcy proceedings. In Re

Hershey, 50 B.R. 329 (DC SD Fla. 1985).

The question before the court is whether

the application of s522(f) allows the deb-

tor to avoid the iien of Helen Owen.

Appellee urges the Court to adopt a

position that the lien which substantially

A21

pre-dated both the filing of the bankruptcy

petition and the debtor's obtaining of

‘homestead rights is not an avoidable lien

within the meaning of s522(f). Appellee

cites a line of cases for the proposition

that "... a judicial lien which attached

to an interest in property prior to the

debtor's acquisition of that interest is

not avoidable pursuant to s522(f)(1)" in-

asmuch as “the phrase ‘an interest of the

debtor in property' refers to an unencun-

bered interest at the time of acquisition."

McCormick v Mid-State Bank and Trust Co.

33 B.R. 997 (WD Pa. 1982); In Re: Williams,

38 B.R. 224 (ND Okla. 1984); In Re: Sprick,

78 B.R. 292 (D Kan. 1987).

The Court finds this line of cases

persuasive and adopts their reasoning. The

Court additionally finds persuasive the ar-

guments of Appellee that debtor never owned

an unencumbered interest in the real pro-

perty in guestion, since the lien attached

A22

to the property simultaneously with acquisi-

tion of the property.

This Court, having carefully considered

the two issues on appeal, concludes that the

bankruptcy court did not err in determining

that the judgment lien of Helen Owen was

not avoidable pursuant to 11 USC s522(f) or

erroneously deny debtor a hearing on the

motion to amend. Accordingly, it is

ORDERED that the order on motion to

amend or make additional findings and to

alter or amend order on motion to avoid

judgment lien, filed February 8, 1988, be

affirmed. The Clerk of the Court is

directed to enter judgment in accordance

with this Order.

DONE AND ORDERED in Chambers, in Tam-

pa, Florida, this 7th day of June, 1988.

bet - Kovachevich

Copies to: ELIZABETH A. KOVACHEVICH

All parties United States District Judge

and counsel

of recorc

A23

UNITED STATES BANKRUPTCY COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

In Re:

DWIGHT H. OWEN

Debtor Case No 86-106-8P7

ORDER ON MOTION TO AMEND OR MAKE

ADDITIONAL FINDINGS OF FACT PURSUANT

TO RULE 7052(b) AND TO ALTER OR AMEND

THE ORDER ON MOTION TO AVOID JDUGMENT

LIEN PURSUANT TO RULE 9023

THIS cause came on for consideration

ex parte, upon a Motion to Amend or Make

Additional Findings of Fact Pursuant to

Rule 7052(b) and to Alter or Amend the

Order on Motion to Avoid Judgment Lien

Pursuant to Rule 9023 filed by Helen Owen,

a creditor in the above captioned Chapter

7 case. The Court has considered the mo-

A24

tion, together with the record, and is

satisfied that the Motion is well taken

and should be granted. Accordingly, the

Order on Motion to Avoid Judgment Lien

entered by this Court on December 1, 1987

should be amended as follows:

The Motion to Avoid Judgment Lien

was filed by Dwight H. Owen, the Debtor

in this Chapter 7 case. The Motion seeks

to avoid a judgment lien in favor of Helen

Owen. The judgment was obtained on Decem-

ber 1, 1975 and a certified copy was recor-

ded in the Sarasota County Public Records

on July 29, 1976.

In November 1984, the Debtor purchased

certain real property in Sarasota County,

and at this time the judgment of Helen Owen

attached to the property.

At the time the Debtor acquired the

property and the judgment lien attached,

the Debtor was not entitled to claim the

property as homestead due to the fact that

A25

hae ws adic re | ee eT Re Pate eee oe Oe Se ee ee ee ee Pere en Le a a ee

he was not a “head of household" as was

required under Article X, Section 4 of the

Florida Constitution prior to its Amend-

ment. It was not until January 1985, which

was the effective date of the Amendment to

Article X, Section 4 of the Florida Consti-

tution, which substituted the term "natural

person" for the previous term "head of house-

hold", that the Debtor was entitled to claim

the property as homestead.

Clearly, if at the time the certi-

fied copy of the Judgment was recorded in

the Public Records, the Debtor owned the

property but for whatever reason did not

qualify to claim the property as homestead,

such judgment lien would be clearly non-

avoidable under §522(f)(1) of the Bankrupt-

cy Code. As the judgment lien in this

case attached before the property qualified

as homestead, the judgment lien is not of

the type included within the ambit of

§522(£)(1) and may not be avoided.

A26

eg a ee ee ee ee eee ee ee ee ee ee ee ee ee eet

ie | «a - a ; - ‘ aw 4

Accordingly, it is

ORDERED, ADJUDGED AND DECREED that the

Motion to Amend or Make Additional Findings

of Fact Pursuant to Rule 7052(b) and to Al-

ter or Amend the Order on Motion to Avoid

Judgment Lien Pursuant to Rule 9023 be,

and the same is hereby, granted. It is

further

ORDERED, ADJUDGED AND DECREED that the

Order on Motion te Avoid Judgment Lien en-

tered on December 1, 1987 be, and the same

is hereby, amended to reflect the changes

as set forth in this Order. It is further

ORDERED, ADJUDGED AND DECREED that the

Debtor's Motion to Avoid Judgment Lien

be, and the same is hereby, denied.

DONE AND ORDERED at Tampa, Florida

on February 8, 1988.

Zs/Alexander L. Paskay

ALEXANDER L. PASKAY

cc: Chief Bankruptcy Judge

John R. Shuman for lienholder

Roger L. Fishell, Attorney for Debtor

Dwight H. Owen, Debtor

A27

Per Ores Syn fe oe wa oe ee

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT |

No, 88-3499

IN RE: DWIGHT H. OWEN

Debtor

DWIGHT H. OWEN

Plaintiff-Appellant

Vv.

HELEN OWEN

Defendant-Appellee

Appeal

From the United States District Court

for the Middle District of Florida

ON PETITIONS FOR REHEARING

AND SUGGESTIONS FOR REHEARING IN BANC

(Opinion July 11, 1989, 11 Cir., 1989,

F. 2d ry

(August 31, 1989)

- Before POWELL*, Associate Justice (Retired),

United States Supreme Court, RONEY, Chief

A28

Judge, and TJOFLAT, Circuit Judge.

PER CURIAM: ,

(X) The Petitions for Rehearing are DENIED

and no waidbnie of this panel nor other

judge in regular active service on the

Court having requested that the Court be

polled on rehearing in banc (Rule 35,

Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the Sug-

gestions for Rehearing In Banc are DENIED.

ENTERED FOR THE COURT:

/s/ Paul H. Roney

United States Circuit Judge

*Honorable Lewis F. Powell, Jr., Associate

Justice of the United States Supreme Court,

Retired, sitting by designation.

A29

ese eS ee ee eee eae ee ee eee es Se ee

. sf ry .

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 88-3499

L.C. Docket No. 88-00404

IN RE: DWIGHT H. OWEN

Debtor

DWIGHT H. OWEN

Plaintiff-Appellant

Vv.

HELEN M. OWEN

Defendant-Appellee

APPEAL

From the United States District Court

for the Middle District of Florida

Before POWELL*, Associate Justice (Retired),

United States Supreme Court, RONEY, Chief

Judge, and TJOFLAT, Circuit Judge.

JUDGMENT

This cause came on to be heard on the

A30

transcript of the record from the United

States District Court for the Middle District

of Florida, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now

hereby ordered and adjudged by this court

that the judgment of the said District

Court in this cause be and the same is

hereby AFFIRMED:

IT IS FURTHER ORDERED that plaintiff-

appellant pay to the defendant-appellee,

the costs on appeal to be taxed by the

Clerk of this Court.

*Honorable Lewis F. Powell, Jr., Associate

Justice of the United States Supreme Court,

retired, sitting by designation.

Entered: July 11, 1989

For the Court: Miguel J. Cortez

Clerk

By:/s/ David Maland

Deputy Clerk

ISSUED AS MANDATE: September 8, 1989

A31

_ -——

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

DWIGHT H. OWEN

Vv Case No. 88-404-CIV-T

-17B

HELEN OWEN

JUDGMENT IN A CIVIL CASE

(X.) Decision by Court. This action came

to trial or hearing before the Court.

The issues have been tried or heard and a

decision has been rendered.

IT IS ORDERED AND ADJUDGED

That the Bankruptcy Court's Decision

is AFFIRMED.

Donald M. Cinnamond

Date: June 7, 1988 Clerk

/s/ Rita J. Cole

Deputy Clerk

A32

ee ee a a rr Sn ee

FEDERAL

STATUTORY PROVISIONS INVOLVED

11 U.S.C. § 522(b) 7"

Notwithstanding section 541 of this

title, an individual debtor may exempt

from property of the estate the property

listeec in either paragraph (1) or, in the

alternative, paragraph (2) of this subsec-

tion. In joint cases filed under section

302 of this title and individual cases

filed under section 301 or 303 of this

title by or against debtors who are husband

ana wife, and whose estates are ordered to

be jointly administered under Rule 1015(b)

of the Bankruptcy Rules, one debtor may

not elect to exempt property listed in para-

graph (1) and the other debtor elect to

exempt property listed in paragraph (2)

of this subsection. If the parties can

A33

not agree on the alternative to be elected,

they shall be deemed to elect paragraph (1),

where such election is permitted under the

law of the jurisdiction where the case is

filed. Such property is --

(1) property that is specified under

subsection (d) of this section, unless

the state law that is applicable to the

debtor under paragraph (2)(A) of this

subsection specifically does not so au-

thorize; or, in the alternative,

(2)(A) any property that is exempt

under Federal law, other than subsection

(4) of this section, or State or local

law that is applicable on the date of the

filing of the petition at the place in

which the debtor's domicile has been lo-

cated for the 180 days immediately preced-

ing the date of the filing of the petition,

or for a longer portion of such 180-day

period than in any other place; and

(B) any interest in property in which

A34

the debtor had, immediately before the com-

mencement of the case, an interest as ten-

ant by the entirety or joint tenant to the

extent that such interest as a tenant by

the entirety or joint tenant is exempt

from process under applicable nonbankruptcy

law.

11 U.S.C.§ 522(f)

Notwithstanding any waiver of exemp-

tions, the debtor may avoid the fixing of

a lien on an interest of the debtor in

property to the extent that such lien im-

pairs an exemption to which the debtor

would have been entitled under subsection

(b) of this section, if such lien is --

(1) a judicial lien;

A35

FLORIDA

CONSTITUTIONAL PROVISIONS INVOLVED

Article X, Section 4, Florida Constitution

(a) There shall be exempt from forced

Sale under process of any court, and no

judgment, decree or execution shall be a

lien thereon, except for the payment of

taxes and assessments thereon, obligations

contracted for the purchase, improvement

or repair thereof, or obligations contrac-

ted for house, field or other labor per-

formed on the realty, the following pro-

perty owned by a natural person:

(1) a homestead, if located outside a

municipality, to the extent of one hundred

sixty acres of contiguous land and improve-

ments thereon, which shall not be reduced

without the owner's consent by reason of

subsequent inclusion in a municipality; or

if located within a municipality, to the

A36

extent of one-half acre of contiguous land,

upon which the exemption shall be limited

to the residence of the owner or his family;

(2) personal property to the value of one

thousand dollars.

(b) These exemptions shall inure to the

surviving spouse or heirs of the owner.

(c) The homestead shall not be subject

to devise if the owner is survived by

spouse or minor child, except the homestead

may be devised to the owner's spouse if

there be no minor child. The owner of

homestead real estate, joined by the spouse

if married, may alienate the homestead by

mortgage, sale or gift and, if married, may

by deed transfer the title to an estate by

the entirety with the spouse. If the owner

or spouse is incompetent, the method of

alienation or encumbrance shall be as pro-

vided by law.

e-<

*

Amended, general election, Nov. 7, 1972; general

election, Nov. 6, 1984.

A37 :

a es = ee a eS eS ee ee

Article XI, Section 5, Florida Constitution

(c) If the proposed amendment or revision

is approved by vote of the electors, it

shall be effective as an amendment to or

revision of the constitution of the state

on the first Tuesday after the first Mon-

day in January following the election, or

on such other date as may be specified in

the amendment or revision.

A38

i i a ee ee hee

1.

FLORIDA

STATUTORY PROVISIONS INVOLVED

Chapter 222.20, Florida Statutes

In accordance with the provision of

s. 522(b) of the Bankruptcy Code of 1978

(11 USC s522(b)), residents of this state

shall not be entitled to the federal exemp-

tions provided in s. 522(d) of the Bank-

ruptcy Code of 1978 (11 USC s522(d)).

Nothing herein shall affect the exemptions

given to residents of this state by the

State Constitution and the Florida Statutes.