# Petition for Writ of Certiorari — Owen v. Owen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0695%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 500 U.S. 305 ## Text 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 | ; exemptions when such "exception" is a judi- ‘ / q i | . ; cial lien within the application of 11 USC 522(f)(1). . u. =. —# J — . * Oi a Re ie ee ee |» De | | | ee ee og on —" = ~~ ae hd att a le ie ne 2 Av to ce ee - at * 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 ~ aA 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 i a geting hie ek hee eee eee ll, Sines De i Ii ei ee i % } ¢ ; » ; t * ! i p f f 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 ee fey 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 es! gf) ee eS ee NO ee, ee LoS ee . . 2 = | | - APPENDIX VN Ce ae ee ee ee ee rue * OLE OLE IED FD! PANS ES I RE TEN TRA OTE Nt A AS AT cl Ae a A a Fi tar + Wy Pees ee ee . ee eee ‘ , on on a ; ; 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0695%3A2. Public record. Not legal advice.