# Petition for Writ of Certiorari — Owen v. Owen, 113 S. Ct. 659 (1992) (No. 92-671)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992

## Text

Supreme Court. S.

92-67] 2 2 ae

| OCT 16 i992

OFFICE OF THE CLERK

Stata

IN THE —J

SUPREME COURT OF THE UNITED STATES

October Term 1992

H. OWEN
Petitioner
Vv.
HELEN OWEN

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Roger L. Fishell

1900 Main Street#214
Sarasota, Florida 34236
(813) 351-2883

Attorney for Petitioner

&ryTeecT rane IDC Ff Tren
OUBSLLONS BOoENLED
Whether the Sunreme Court decision
;, . Rores ws 7 heh a ee
in Farrey v Sanderfoot, IS > Eke
Paticy aaiaeinads
oC 7c > & 7 7 T ~ = 7
S ct 1825, 114 L Ed 2d 337 (1991), which

as to lien. created by a state divorce

judgment in order to protect a pre-exis-

protect the distribution under the decree)
controls the decision in Owen where, in
Owen, no joint or pre-existing ownership

interest in specific property was ever

where the lien was not created by the
specific terms of any judgment and where
avoidance of the lien would, in no way,
result in a deprivation of any ownership
interest of the creditor or otherwise

defeat any property distribution in favor

)

of that creditor under Such judgment.

2. Whether the Court of Appeals, in

Owen, misapplied Parrey when it concluded
that there was no "fixing of a lien on an
interest of the debtor...as the debtor had
no property interest prior to the fixing

of the lien" where, in Owen, the debtor's
Ownership of Property is an indispensable
prerequisite to the acquisition of any lien

by his creditor under Florida law.

3. Whether the apparent rule of Farrey
Should be limited or narrowed to the extent
that it not be applied to the broader cate-
gory of general judgment liens, such as
the one involved in Qwen, which arise by
random operation of law, and where no owner-
Ship-to-lienholder continuum exists in the
Creditor and where avoidance of such lien
Will not result in any deprivation of any

pre-existing ownership interest held by the

Creditor in the property.

ii

STATEMENT PURSUANT TO RULE 14.1(b)

Dwight H. Owen is an individual Petitioner

Helen Owen is an individual Respondent

iii

Questions

Statement Pu

Presented

able of Contents

rsuant to

Index to Appendix ...

Table of Aut

horities

Opinions Below ......

Jurisdiction

*e wp eee @ @

Statutes Involved ...

Constitution

Statement of

Introduct

Fact Summary

Argument

Reasons for Granting the

Conclusion

te oe a oe oe ee oe a

Certificate

al Provisi

the Case
ion

22 82 2 2.6 &

of Service

1V

Rule 14.1 nee

ay

-) :

x

INDEX TO APPENDIX

i.

Opinion of the United States Court of
Appeals on Remand from the United

States Supreme Court, Owen v Owen,

Gated 14 May LSS?) .cdcvcc dceeks ender wees. Al
Order of United States Court of Appeals
on Motion for Prehearing Conference,

For Supplemental Briefing and for

Oral Arguement, Owen v Owen, dated

14 May 1992

Opinion of the United States Supreme

Court, Owen v Owen, dated 23 May 1991.Al2

Judgment of United States Court of

Appeals, Qwen v Qwen, dated

11 July 1989

TrTtrtTcrtneteteeeeReRESa ERA R ER SRE EY eR DS E.

Order of United States Court of
Appeals on Petition for Rehearing
and Suggestion for Rehearing En

Banc, Owen v Owen, dated

32 ROGUE TURE Uae rink econo Aa]
Opinion of United States Court of

Appeals, Owen v Owen, dated

LA. Deke TORO Wii co Gb cees oer dei eeu. A49
Judgment of United States District

Court, Owen v Owen, dated

? Summ 190RiLa o ieieteie AG]
Opinion of United States District

Court, Qwen v Owen, dated

> Same. TNR ara eaeaaeeeeecks A62
Order of United States Bankruptcy

Court 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

Judgment Lien Pursuant to Rule

9023, In Re Owen, dated

A73

© FORCOALY 19GB isacvccdvasccesivcka

49

>]

2

Opinion of United States Supreme

Court, Farrey v Sanderfoot, dated

Order of United States Court of
Appeals on Petition for Rehearing
and Suggestion for Rehearing En

Banc, Owen v Owen, dated

Judgment of United States Court of
Appeals on Remand from the United

States Supreme Court, Owen v Owen,

dated 14 May 1992 ...-ceeeeeeeeeccceeeees

Vil

Art XI,

Vv °
ERM Chae CO ee lice Guy Al12
POW PIA Yer ee un psoas, ce A110
PME PRR LRM weet ye Pe tie oe All2
wi ok Misia AEE EE Oe ALis
POR MONG. Ghee sk ihe wa cadcds All3
sec 4, Fla. Const...\........... All4
sec 5, Fla. Const.............. A116

viii

TABLE OF AUTHORITIES

Cases

Accent Realty of Jacksonville Inc. v

Crudele, 496 So 2d 158
(Fla 3d DCA 1986) ..... ae ee a ee ae 23
Aetna Insurance Company v LaGasse,

23 SO 44 727 (Pim 1969), ...ncccreceen 9

et al. v Donovan, 452 US 490,

-

101 S Ct 2478, 69 L Ed 2d 185 (1981).34

Arizona v Fulminante,

_. G8 2, , 111 S$ Ct 12466, 113 L 8a

ae SD Ee roe 33
Arkansas v Sanders,

442 US 753, 99 S Ct 2586, 61 L Ed

DE ee. ROOT? 6646 tn be ecbakewe veeews a3
Associates Discount Corporation v

Gomes, 338 So 2d 552

[PEG Fe I SPO vow ce oc kin hee inane. 26

ix

4 ’
, _
ad J
= x
d
>
rf
4 4

-
4
4
xt
C al
oF ee
f
b2y
ont
r 4 x
x :
:
> ‘
(Tt
ee

ul
cv

* ©)

877 F 2d 44 (llth Cir 1989)....vi,1,5

US » 111 S Ct 1833, 114 L Ed 2d

rr)
Nh
oF,
©
cT
“
2)
r
ry
WO
oO
N
ue)
07)
49)
47)
h-
=|

0 ESOL). we ica vie bake
mbe's Case,
42 ERG ROP FCG (2909) 60 vk ccwuus eee

Porter-Mallard Company et al. v
Dugger, 117 Fla 137, 157 So 429
(PER SOIR) .eenenhusee hock se ee cee
Sarmiento v Stockton, Whatley, Davin &
Company, 399 So 2d 1057
(Pia 36 DOOR: 2901). ive esau euees eae

Schilling, et al. v Bank of Sulphur

Springs, 147 So 218 (Fla 1933),.....26

xii

a

Schlude v Commissioner of Internal
Revenue, 372 US 128, 83 S Ct 601,
re 35

Securities and Exchange Commission
United Benefit Life Insurance
Company, 387 US 202, 87 S Ct 1557,
Oe ey 2 re 35

Smith v Pattishall,

127 Fla 474, 176 So 568 (Fla 1937).18

United States v Doe,

465 US 605, 104 S Ct 1237, 79 L Ed 2d

United States v Donovan,

429 US 413, 97 S Ct 658, 50 L Ed 2d
DPT CCC ER GG eee cccccce ccc ce 32
United States v Martinez-Fuerta, et al.,
429 US 543, 96 S ct 3074, 49 L Ed 2d
TET cate cece ccc ccc ese 34

Wilkinson v United States,

365 US 399, 81 S Ct 567, 5 L Ed 2d

633 (1961)

11 USC

ll USC

222.20,

aAPt« Ri

Art XI,

40 164 (Pim 2950) cic ok wksckux 18
Statutes
POS walk hn boas eA Ga ee ae ek 27
SRSLMS ea Naw Ask ee Od eee 4
ike Pe ee ee rer eee passim
PERS eK ORAL Ee TE OOS Od hae COLL 10
PEDO EP hte bad hes Rae eee 3
Fla Peek wa eee 0k ks Ge ee ee 4,16
Fans wees Uxt 1] p y art t t >
+ ] al: + é ~ + r ) » = . > = ~ ~—:
real propert 1 the county i ynhich that
l1agment is recorded B \ tt ae. ©
Padgett, 14 So 2d 667 (Fla 1943). Thus, the
Respondent's Judgment attached as a lien

it the time the above property was acquired

by petitioner on 27 November 1984. In addi-
tion, a judgment which attaches as a lien
upon the debtor's property at a time when

the debtor is not eligible to claim the
homestead exemption will remain enforceable
despite the fact that the debtor later

qualifies for the exemption. Aetna Insur-

ance Company 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 Company, 21 So 2d 127 (Fla

1945), such a lien will remain enforceable

”~ T "reve - ~ > >
pees Bmw Bhan
) he + = + + + _
i . 4
~ Tr y ™ ~ ~ = ro; ~ ~
A i
or, + +} -y ~ + £ + }, ah + —_—
SD1lte le 2 A © 4 P ; L e u
= = ae a tho >> a= “ran
assert LIE exemption.
t

On 13 January 1986, the Petitioner
filed his Chapter 7 bankruptcy petition

and claimed the above property as exempt
as his homestead on his B-4 schedule, in
accordance with Chapter 222.20, Florida
Statutes (A113), the provision which
limits Florida debtors to state, rather
than federal,exemptions in bankruptcy.
The bankruptcy court allowed the exemption
for purposes of general administration of
the estate. The exemption was allowed
because exemption entitlements are deter-
mined by reference to the exemption provi-

Sions in effect on the date of the Filing

of the petition. 11 USC 541, In Re Zahn

605 F 2d 323 (7th Cir 1979) cert den 444

US 1075, 100 S Ct 1072, 62 L Ed 2a 757

(1980); Lewis v Manufacturer's National

Bank, 364 US 603, 81 S Ct 347, 5 L Ea 2d

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 ll USC 522(f). The order of
February 8, 1988 (A73 ), in which the bank-
ruptcy court held the lien to be unavoidable,
is the order appealed to the District Court
and to the Court of Appeals. The District
Court (A 62) and Court of Apeals (A 49)
both affirmed the bankruptcy court.

The United States Supreme Court
granted certiorari and reversed the deci-

sion of the Court of Appeals, Owen v Owen,

above, holding that state defined exclu-

sions from exemptions did not preclude

11

lien avoidance under 11 USC Beate )()).

However, this Court remanded the case to
the Court of Appeals for consideration in
accordance with the holding in Farrey v

sanderfoot, above. (A30).

The Owen decision, at 111 S Ct 1838,
(A 29), states

"Section 522(f) permits the avoid-
ance of the 'fixing of a lien on an
interest of the debtor'. Some
court's have held it inapplicable to
a lien that was already attached to
property when the debtor acquired it,
Since in such a case there never was
a 'fixing of a lien' on the debtor's
interest. (cites omitted). Under
Florida law, the lien may have
attached simultaneously with the ac-
quisition of the property interest.
If so, it could be argued that the
lien did not fix ‘on an interest of
the debtor'. Farrey v Sanderfoot,

US poaee @ Ge 1625, 114 L Ed
2d 337 (1991)."

This latter issue was left for consideration
On remand.

In again affirming the District Court,
the Court of Appeals stated at 961 F 2a 172
(A4-6) that

"...there was no fixing of a lien

12

on an interest of the debtor..

(and) there was never a fixing of

a lien on an interest of the deb-

tor, as the debtor had no property

interest prior to the fixing of the

lien."
The Court of Appeals, in relying on Farrey,
apparently took the position that the
Petitioner failed to meet the requirement
that he own an interest in the property to
which the lien attached "at some point
before" the lien attached to the property.
See Farrey, at 111 S Ct 1831. It was on
this basis that the Court of Appeals held

the lien to be unavoidable. See 961 F 2d

at 172. (A 4-6).

13

ARGUMENT

-
1

In concluding that Respondent's lien

was unavoidable, pursuant to 11 USC 522(f),
the Court of Appeals misapplied this Court's
holding in Farrey. The holding in Farrey
is not as broad as the Court of Appeals has
interpeted it to be.

Farrey involved the limited situation
wherein ownership interests in specific
real property were at risk had this Court
Sustained lien avoidance under 11 USC 522.
Farrey involved the lien created by a
divorce decree where that decree was engi-
neered to protect a pre-existing ownership
interest. The non-debtor spouse received
a judicially declared lien upon the proper-
ty which was transferred by that decree to
secure to her the division of property

ordered by the divorce court. This Court

14

held that the lien created by that judgment
in favor of the non-debtor spouse could
not be avoided.

The boundaries of the Farrey ruling

are stated at 111 S Ct 1827, {A 77).

"In this case we consider whether
§522(£) of the Bankruptcy Code
allows a debtor to avoid the fix-
ing of a lien on a homestead,
where the lien is granted to the
debtor's former spouse under a
divorce decree that extinguishes
all previous interests the par-
ties had in the property, and in
no event secures more than the
value of the non-debtor spouse's
former interest. We hold that it
does not."(emphasis added).

This Court's concern for Farrey's pre-exis-

ting ownership interest is again noted at

1. Two conditions are noted here, i.e. (1) a decree
which extinguishes a pre-existing Ownership interest
and (2) a lien which secures no more than the value
of the non-debtor spouse's former interest. Thus, in
the non-debtor spouse, a ownership-to-lienholder
continuum exists.

Since the Respondent here, Mrs Owen, never had
an ownership interest in the property which became
the subject of her lien when Petitioner acquired the
property, she does not fall within the protection of
Farrey. She can fulfill neither of the above (2)
conditions. Further, her lien did not arise by way
of any divorce decree.

15

111 S Ct 1831 (A 97)

"Farrey obtained the lien not to
defeat Sanderfoot's pre-existing
interest in the homestead but to
protect her own pre-existing in-
terest in the homestead that was
fully equal to that of her spouse.
The divorce court awarded the lien
to secure an obligation the court
imposed on the homestead in exchange
for the court's simultaneous award
of the wife's homestead interest to
the husband."(emphasis added).

Viewed in its entirety, the transfer under
the Farrey divorce decree is more akin to

a partition judgment or a purchase money
mortgage than to the more commonplace lien
of an unrelated judgment such as the lien
held by the Respondent in Owen. Mrs Owen's
lien arose by operation of law and attached
to property indiscriminately. See §55.10,
Florida Statutes. Respondent Owen never
held a pre-existing ownership interest in
Petitioner's property. Mrs Owen's lien,
unlike Farrey's, never provided her with

a specific interest in Petitioner's pro-

perty. Farrey's lien was specifically

16

created by the terms of the decree. Mrs
Owen's lien was not of that character,
Origin or magnitude. * It should not be
accorded the same magnitude of protection
that was accorded Farrey's.

Also, as the Court noted at 111 S Ct
1828, (A 82), the Farrey decision evolved

from a series of dissolution of marriage

2. No interest in specific property is created by
virtue of the attachment of a judgment as a lien.
In Conard v The Atlantic Insurance Company of New
York, Inc., 26 US(1 pet) 386, 442-443 (1828), the
Supreme Court, in construing Pennsylvania lien law,
stated
",..1t is not understood that a general
lien by judgment on land, constitutes, per
se, a property or right in the land itself.
It only confers a right to levy on the same
to the exclusion of other adverse interests,
subsequent to the judgment...But subject to
this the debtor has full power to sell or
otherwise dispose of the land. His title
to it is not devested or transferred by the
judgment to the judgment creditor...In short,
a judgment creditor has not jus in re, but
a mere power to make his general lien effec-
tual by following up the steps of the law,
and consummating his judgment by an execu-
tion and levy on the land."
Florida has adopted the rule set forth above. In
Massey v Pineapple Orange Company, 87 Fla 374, 100
So 170 (Fla 1924) the court states
"A general lien by judgment on land only
confers a right to levy on the same...A

17

cases which present equities not to be

found in Owen. It appears, in Farrey and

in other similar cases noted, that an under-
lying factor was the desire of the courts

to protect pre-existing interests (in Farrey,
an ownership interest) of a non-debtor

3 .
spouse. Mrs Owen was never at such a risk

2. (cont.) judgment creditor has no jus in re, but
a mere power to make his general lien effec-
tual by following up the steps of the law and
consummating his judgment by an execution and
levy upon the land."
See also Gilpen v Bower, 12 So 2d 884 (Fla 1943),
wherein the Court distinguishes mortgages and judg-
ment liens and concludes that a jucgment lien was
not a claim upon specific property. See also Nassau
Realty Company Inc. v City of Jacksonville, et al.,
198 So 581 (Fla 1940)(distinguishing judgment liens
and liens on specific property); Young v McKenzie,
46 So 2d 184 (Fla 1950)(following Massey, above);
Smith v Pattishall, 127 Fla 474, 176 So 568 (Fla
1937) (same).
3. Note at 111 S Ct 1828 (A 85)
"The sole question presented in this case is
whether §522(f)(1) permits Sanderfoot to
avoid the fixing of Farrey's lien on the pro-
perty interest that he obtained in the divorce
decree."
Without the relief provided by this Court, Farrey
would have parted with her ownership interest in
return for the security of the lien given by the
divorce decree, only to have the security of the
lien stripped from her when the former spouse, who
acquired her prior interest in the property, later
sought bankruptcy relief. Without relief in this
Court she would have suffered a two-fold deprivation
which, in the end, would have taken from her the
entirety of the property she once owned.

18

because her lien was never a Substitute

for a prior ownership interest in any vro-
perty.

In restating its desire to protect
Farrey's pre-existing Ownership interest,

and the lien given to secure that interest,
the Court notes at 111 S Ct 1831, (A 97),

"++.toO permit a debtor in these
Circumstances to use the code to
deprive a spouse of this protec-
tion would neither follow the lan-
guage of the statute nor serve the
main goal it was designed to address."
(emphasis added)

The Petitioner concedes that a lien arising
under the circumstances of Farrey would not
likely have been the evil which Congress

sought to remedy when §522(f£) was enacted.*
However, those peculiar circumstances are
not present in Owen. Avoiding Mrs Owen's

lien would not deprive her of something she

once owned, it would merely deprive her of

4. The Court, in Farrey, assumed, but did not deter-
mine, that the lien involved in that case was a judi-
clal lien. See 111 S Ct 1828, (A 85). However, in
Owen, the Court specifically stated that, "The lien
in the present Gase is a judicial lien..." (A 19).

19

rule as interpreted by the Court of Appeals

in its recent decision.

The issue which this Court directed
the Court of Appeals to consider on Hedend.
is stated at 111 S Ct 1838, (A 29), as |
follows

“Under Florida law, the lien may
have attached simultaneously with
the acquisition of the property
interest. If so, it could be ar-
gued that the lien did not fix
‘On an interest of the debtor'.

See Farrey v Sanderfoot, US
» a84, 3. CO i825; L Ed 2d
(1991)."

The actual language of the holding in Far-

20

rey, at 111 S Ct 1829, (A 87),

ow

“++.unless the debtor had the pro-
perty interest to which the lien
attached at some point before the
lien attached to that interest, he
Or she can not avoid the Fixing of
the lien under the terms of 11 USC
522(f)(1)." (emphasis added)

Quite obviously, this Court did not con-
Clude in its Owen opinion that the above

rule required that lien avoidance be denied

to Petitioner Owen.> However, the Court of

Appeals, at 961 F 2d 172, held (A4-6)

"...there was no fixing of a lien
On an interest of the debtor...
(and) there was never a fixing of
a lien on an interest of the deb-
tor, as the debtor had no proper-
ty interest prior to the fixing
of the lien."

This holding can not be sustained, so as
deny Petitioner the avoidance of the lien,
under the facts of this case.

Florida law clearly provides that a

judgment can be no lien upon any property

9. Note at 111 S Ct 1838, (A 29), wherein the
Court states with reference to the issues remanded
that
"It could be argued that the lien did not
fix 'on an interest of the debtor'. (cite)
- We express no opinion on these

points..."

21

a Oe NL D-

MSc tar

Te ae eet Re ae He RS LET LERTEL NOR he

Se ee

unless and until property is owned by
the judgment debtor.° A judgment attaches

as a lien to the judgment debtor's property

6. The conclusion, i.e that there "...was no

fixing of a lien on an interest of the debtor..."
could only be true in a situation like that presented
in In Re McCormick, 18 BR 911 (Bankr WD Pa 1982) aff'd
22 BR 997 (DC WD Pa 1982), noted by this Court in
Owen, 111 S Ct 1838. In McCormick, the lien attached
to a joint interest prior to the time that the debtor
acquired sole interest in the property. Because the
lien attached prior to acquisition of his sole in-
terest, the debtor did acquire the property with the
lien already attached. Under those facts, it can be
observed that there was no fixing of a lien on an
interest of the debtor because the lien became fixed
while owned by the prior titleholders, i.e. the joint
judgment had attached during the prior joint owner-
ship and therefor the lien was already attached to
the property when it became solely owned by the deb-
tor.

This is plainly not what occurred in Owen, be-
cause Mrs Owen's judgment was against Owen himself
and not against Owen's predecessor in title. For
Mrs Owen to have had a lien on the property prior
to Owen's acquisition of his interest, Mrs Owen's
judgment would have had to have derived from Owen's
predecessor in title, rather than through Owen him-
self.

The opinion of the Court of Appeals reads as
though McCormick applies. Quite clearly, it does
not. See In Re Sprick, 78 BR 292 (Bankr D Kan
1987) for an analysis of McCormick and an explana-
tion of when it does not apply.

22

=

/
ind to none other. In Owen, there was

no lien in favor of the creditor until

Petitioner acquired title in November
1984. The judgment attached as a lien
upon the Petitioner's interest in the pro-

perty because, by definition, it could not
attach to anything else.

Because the lien was "dependent" upon
Petitioner's ownership, it is clear that
"ownership" was the condition "precedent"
to the very existence of the lien. Farrey,
at lll S Ct 1829, (A 87), requires that
the debtor have the property interest to
which the lien attached "at some point

before" the lien attached to the interest.

7. See Cheves et al. v First National Bank of
Gainesville, 79 Fla 34, 83 So 870 (Fla 1920)(a judg-
ment is no lien upon land before acquisition of
title); First National Bank of Chipley v Peel, 107
Fla 413, 145 So 177 (Fla 1933)(judgment lien could
not attach to property until it was owned by the
judgment debtor); Baron v Aiello, 319 So 2d 198

(Fla 3d DCA 1975); Bowers v Mozingo, 399 So 2d 492
(Fla 3d DCA 1981); Accent Realty of Jacksonville,
iInc., v Crudele, 496 So 2d 158 (Fla 3d DCA 1986)
(creditor may not acquire judgment lien on property
to which judgment debtor does not hold legal title).

23

The phrase "at some point before" is not

further defined in Farrey. The Court of
Appeals, in Owen, concluded that there was
no fixing of a lien on an interest of the
Petitioner because the Petitioner had no
property interest "at some point before"
the lien attached. See 961 F 2d 172,

(A 4-6). However, this conclusion is not
sound because the creditor had no lien
until acquisition of the property by the
Petitioner. Thus, a sequence of events
exists in which "ownership" must first

~

8 , 9 : '
occur. Pimbe's case provides an 1llus-

tration of how the "at some point before"

rule should apply in Owen. Pimbe's case

involved the operation of the Statute of
Uses. In that case, land was transferred
to one Throckmorton for the use of his

transferor. Throckmorton was then convic-

8. The reverse could never be true. A lien is
entirely dependent upon the existence of ownership
for its existence. See note #7 and cases cited.
9. 72 Eng Rep 528 (1585). See Scott & Scott,
Selected Cases and Other Authorities on the Law

of Trusts 286 (5th Ed. 1966).

24

ted of treason which had been committed

prior to the transfer. As a result, the
land was forfeited to the crown at the
moment of its transfer to Throckmorton.
The use could not be enforced against the
crown and was therefore not executed by
the Statute. Because Throckmorton was
seised of the land, for an "instant", at
the time of his treason, the forfeiture
occurred. /9

Even though events appear to occur
with no separation of time, i.e. acquisi-
tion of title and attachment of the lien,
a sequence exists which has legal signi-
ficance. It is the existence of this
"sequence", rather than the quantity of
time separating the components of that

sequence, which is the key factor. A

true sequence is operative in Owen and

10. See C. Robert Morris, Bankruptcy Fantasy:
The Site of Missing Words and the Order of I1llu-
sory Events, Arkansas Law Review, Vol. 45, No. 2,
(1992), p. 304, ("...the jurists found that the
Statute uses a two-step sequence...Although, this
waS a temporal sequence, no time interval separated
its parts...").

25

LITE LER LER, AB ROS Sih alo! AE ER OE Lt

Lhasa

see

4
;

under this analysis, Owen satisfies the

"before" element stated in Farrey.!! As
a result, Farrey should not operate to
preclude lien avoidance under 11 USC

S22(£)(1).

11. The foregoing concept could be illustrated

in a slightly different manner. In Cheves, et al.
v First National Bank of Gainesville, above, a
debtor, who had suffered a judgment against him,
acquired ownership of prc“: ty and contemporane-
ously gave a purchase money mortgage to the seller.
The court held, in that case, that the purchase
money mortgage had acquired some "priority" over
the previously existing udgment.

Whether interpreted as a "temporal event" or
merely as a "legal priority" otherwise contempo-
raneous events have been given a legal "order".
Where interests are favored in the law, i.e. a
purchase money mortgage vs. a judgment lien, courts
have had no difficulty in finding this "order" or
"priority" where competing events would appear to
arise at the same time. See Schilling, et al., v
Bank of Sulphur Springs, 147 So 218 (Fla 1933);
Associates Discount Corporation v Gomes, 338 So 2d
552 (Fla 3d DCA 1976); Sarmiento v Stockton, What--
ley, Davin & Company, 399 So 2d 1057 (Fla 3d DCA
1981).

The concept of "ownership" must prevail over
the concept of the "lien" whether analyzed in terms
of legal priorities or temporal events because the
lien is wholly dependent upon "ownership" for its
existence. That is not the case where a mortgage
competes with the lien because, in that instance,
neither interest is dependent upon the other. For
these reasons Owen satisfies the “before” condition
stated in Farrey and therefore should not be denied

avoidance of the lien.

26

re
rt
re

Assuming, without conceding, that
the Farrey rule otherwise precludes the
Petitioner from obtaining avoidance of the
lien, the holding in Farrey should be nar-
rowed, or otherwise qualified, because the
holding is broader than was necessary to
achieve the result in that case. Although
the result in Farrey was reasonable given
the circumstances of those parties, its
holding should not control the outcome of
cases, such as Owen, where the true nature
of the lien, and the respective property
interests of the parties, are fundament-
ally different.

Although liens of the type found in
both Farrey and Owen fall within the code
definition of "judicial lien", see 11 USC
101(36), the lien involved in Farrey was,
in truth, of a special character. Although

declared by judgment, the lien more closely

27

Pie Ae ORR ALSAGER A LA ARLE a AT OOS pt

resembles a purchase money mortgage

because it was created as "security" for
the payment of the "purchase price" of a
pre-existing ownership interest which was
being transferred from one party to the
other. !4 Security devices of this nature
are not avoidable under §522(f), perhaps
in part, because such security oftens pro-
tects a prior ownership interest which is
being transferred. Ownership interests,
such as the one in Farrey, are vastly dif-
ferent, and more worthy of protection, than
interests acquired by the random operation
of judgment lien statutes such as the one
involved in Qwen.

It is submitted that Respondent's lien

and the manner of its creation, is more

12. This Court observed this feature in Farrey.
At 111 S Ct 1827, (A77-8), the opinion states

",..where the lien is granted to the debtor's
former spouse under a divorce decree that
extinguishes all previous interests the parties
had in the property, and in no event secures
more than the value of the non-debtor spouse's
former interest..." (emphasis added).

28

typical of the liens which arise in the
Ordinary course of debtor/creditor rela-
tions. For this reason, it appears far
more probable that Congress intended to
provide relief from the Owen-type lien,
rather than the Farrey-type lien, when it
fashioned §522(f).

To permit a rule derived for the pro-
tection of ownership interests transferred
in divorce cases to be applied to the
broader category of general judgment liens
would, to some degree, defeat the purpose
of §522(f). Further, such a rule would
grant a dignity or immunity to non-speci-
fic liens of general creditors which such
13

liens never previously achieved. This is

13. Farrey parted with her entire ownership interest
in exchange for her lien, whereas Mrs Owen did not.
Though Farrey's interest was fundamentally superior
to Mrs Owen's, each interest would receive identical
immunity from §522(f) under the holding of the Court
of Appeals in Owen. 961 F 2d 172 (A4-6). Asa,
result, the Farrey rule, as applied by the Court of
Appeals, reaches beyond its purpose to the point of
restricting operation of §522(f) to a greater extent
than the code language suggests. No language in §522
Supports denial of lien avoidance in Owen. See In Re
Latulippe, 13 BR 528 (Bankr D Vt 1981) (noting that

§522 contained no "time of attachment" limitation).

29

A AR a

in Fg Waele a eee

not warranted in Owen because there is

nothing in the circumstances of the Owen
lien which would entitle it to the "speci-
alized" treatment accorded to the Farrey
lien.

There are sufficient material distinc-

tions between the Farrey-type lien and the

Owen-type lien which would permit a princi-

pled narrowing of the Farrey rule. Farrey
should be applied to divorce situations or
other similar situations where a lien is
created for the protection of an ownership
interest. The Farrey rule should not be
applied to protect general or random lien
acquisitions which are common to the ofdi-
nary debtor/creditor relation. The Farrey
and Owen liens differ in every material
respect and they should receive differing
treatment under §522 for that reason.

This Court should focus on the inter-
ests protected by those liens rather than

the "time of attachment" of those liens.

30

REASONS FOR GRANTING THE WRIT

This Court previously granted certio-
rari in both Owen and Farrey because of the
Significance of the lien avoidance provi-
Sion of the Code. Farrey produced a limita-
tion on the scope of §522(f). The Court of
Appeals, in Owen, on remand, further limited
the reach of that section by applying Far-
rey to a dissimilar set of conditions and
equities. The Court of Appeals concluded
that the Petitioner was disqualified from
lien avoidance because he did not own the
property "at some point before" the lien
attached to the property. This conclusion
Can not be sustained.

A literal, if technical, application
of the phrase "at some point before" would
Support, rather than deny, lien avoidance
to Petitioner for all of the reasons stated

in Part II, above. Petitioner asserts that

31

a ee Sah a eae cnr

2 SE AGB RAGS AE Lt itt atu

such an application of the Farrey rule

would avoid further limitation or restric-
tion of §522(f). The appropriate focus

Should be upon the nature of the interests

protected by the lien rather than upon the
"time of attachment" of that lien.+4

The Court of Appeals has, in Owen,
taken the Farrey rule, a rule generated
under special circumstances, and applied
that rule to a case where all material
features are distinguishable. This has
produced a questionable limitation upon
the operation or application of §522(f)
and it is a limitation or condition which
Congress did not impose by the language of

that section. !>

14. See United States v Donovan, 429 US 413, 97

S Ct 658, 50 L Ed 2d 652 (1977) wherein this Court
deemed it proper to grant certiorari where the pro-
per construction to be placed upon a major federal
statute was at issue.

15. See Williams v Lee, 358 US 217, 79 S Ct 269,
3 L Ed 2d 251 (1959) wherein this Court granted
certiorari where it perceived that the lower court
had rendered a doubtful interpretation on an im-
portant question. See Note #13, In Re Latulippe,

above.

32

The issue now presented by this peti-
tion was left undecided by this Court in
its prior opinion. See 111 S Ct 1838,

(A 29 ) where the following appears
"Under Florida law, the lien may
have attached Simultaneously with
the acqusition of the property
interest. If so, it could be
argued that the lien did not fix
‘On an interest of the debtor'
(citing Farrey)....We express _no
Opinion on these points.
Thus, this Court left open the very issue
about which review is now sought, i.e. the
proper application of Farrey to the cate-
gory of liens typified by Owen. This Court

has deemed it appropriate to grant certio-

rarl in order to resolve questions left

16. It is reasonable to argue that this Court did
not envision Farrey being applied so as to defeat
lien avoidance in Owen. The facts in Owen were
fully before the Court and the Court had the benefit
of the district court opinion wherein the 'fixing'
issue was addressed. See 86 BR 691. Furthermore,
nothing would have prevented this Court from render-
ing a 'dual' holding in Qwen. This Court did pre-
cisely that in Arizona v Fulminante, US pibsa

S Ct 1246, 113 L Ed 2d 302 (1991), wherein there
appears a holding in an opinion by Justice White and
a distinct holding in an opinion by the Chief Justice.

33

“Tae er ali At hla

17

open by prior Supreme Court decision.

For the reasons stated in Parts I and III,
above, this Court should examine the appli-
cation of the Farrey rule to non-Farrey
type Liens. °°

For all of the foregoing reasons, a
Clarification or limitation of Farrey is
in order. The material features of the
liens involved in Farrey and Owen differ
markedly from one another. The manner of
the creation of the respective lien, its
true nature and the magnitude of the inter-
est the lien secures or protects differ in
each case. The two liens, consequently,

should not receive the same treatment or

protection, insofar as §522(f) is applied.

17. See United States v Martinez-Fuerta, et al.,
429 US 543, 96 S Ct 3074, 49 L Ed 2d 1116 (1976);
American Textile Manufacturers Inc., et al., v
Donovan, 452 US 490, 101 S Ct 2478, 69 L Ed 2d 185
(1981); Parratt v Taylor, 451 US 527, 101 S Ct 1908,
69 L Ed 2d 420 (1981).

18. As noted in footnote #4, above, this Court did
not specifically determine the Farrey lien to be a
“judicial lien". Some distinction must be made
between the liens involved in these cases insofar
as §522 is concerned.

In the absence of clarification or limita-
tion of the rule stated in Farrey, the
two categories of liens represented in
Farrey and Owen are likely to receive
equivalent treatment by the lower courts.
The distinction between the two Categories
of liens is too great to permit such a
result to exist Or continue. Certiorari
is appropriate where there exists a need
for clarification of a prior Supreme Court
opinion.??

Valid and significant reasons for the

granting of the writ are present here.

19. See Securities and Exchange Commission v United
Benefit Life Insurance Company, 387 US 202, 87 S Ct
1557, 18 L Ed 2d 673 (1967); McDaniel, et al., v
Sanchez, 452 US 130, 101 S Ct 2224, 68 L Ed 2d 624
(1981)(certiorari granted because of importance of
question presented and because prior Opinion not free
from ambiguity); Wilkinson v United States, 365 US
399, 81 S Ct 567, 5 L Ed 2d 633 (1961)(writ granted
where it was argued that Court of Appeals had mis-
conceived meaning of prior Supreme Court opinicn) ;
Schlude v Commissioner of Internal Revenue, 372 US
128, 83 S Ct 601, 9 L Ed 2d 633 (1963) (certiorari
granted a second time to consider whether lower court
misapprehended the scope of prior Supreme Court opi-
nion); Arkansas v Sanders, 442 US 753, 99 S Ct 2586,
61 L Ed 2d 235 (1979)(certiorari granted to resolve
apparent misunjerstanding); United States Vv Doe,

465 US 605, 104 S Ct 1237, 79 L Ed 2d 552 (1984).

35

CONCLUSION

Certiorari should be granted and the
decision of the United States Court of
Appeals for the Eleventh Circuit should
be reversed.

In the alternative, the Petitioner
requests the Court to grant summary rever-

sal in this cause.

Respectfully submitted

Roger L. Fishell

1900 Main Street

Suite 214

Sarasota, Florida 34236
(813) 351-2883

Attorney for Petitioner

36

I HEREBY CERTIFY that a true and cor-

rect copy of the foregoing Petition for
Writ of Certiorari was furnished by US

Mail to David A. Townsend, 200 E. Madison
Street, Tampa, Florida 33602 and to John
R. Shuman, 2555 Enterprise Rd., Clearwater,

Florida 34623, Attorneys for Respondent,

this day of October 1992.

ROGER L. FISHELL
1900 Main Street

Suite 214
Sarasota, Florida
34236

(813) 351-2883
Attorney for the
Petitioner

37

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1483%3A1. Public record. Not legal advice.