A.  First Circuit

Gordon v. Pappalardo (In re Gordon), 487 B.R. 600 (B.A.P. 1st Cir. Mar. 13, 2013) (Haines, Tester, Godoy) (One-quarter remainder interest in property subject to life estate in debtor's mother is not available homestead exemption under Massachusetts law.), aff'g, 479 B.R. 9 (Bankr. D. Mass. Aug. 28, 2012) (Boroff) (Although occupying property as principal residence, debtor's one-quarter remainder interest would not support homestead exemption under Massachusetts law.).

Santiago v. Rivera (In re Santiago), 478 B.R. 516 (B.A.P. 1st Cir. Sept. 26, 2012) (Boroff, Deasy, Bailey) (Tax refund attributable to prepetition income is property of the Chapter 13 estate and debtor can use "wild card" exemption under § 522(d)(5) to exempt the tax refund.).

Matos v. Rivera (In re Matos), 478 B.R. 506 (B.A.P. 1st Cir. Sept. 26, 2012) (Boroff, Deasy, Bailey) (Debtor can exempt prepetition tax refunds; trustee's objection that refund was projected disposable income was not before the bankruptcy court and would be moot because amended plan committed refund to trustee.).

Boyajian v. Vargas (In re Vargas), No. RI 11-076, 2012 WL 2450170, at *1 (B.A.P. 1st Cir. June 8, 2012) (unpublished) (Hillman, Feeney, Hoffman) (BAP lacked jurisdiction to consider trustee's appeal of order overruling objection to exemption in personal injury claim when intervening confirmation order became final without reserving issue whether proceeds of tort claim were projected disposable income. Trustee objected to exemption in unliquidated personal injury claim. Before ruling on exemption objection, bankruptcy court confirmed plan that did not reserve issue whether proceeds of personal injury claim were projected disposable income. "As the bankruptcy court has entered a final order confirming the Debtor's plan without reserving this issue, there is no case or controversy sufficient to trigger our jurisdiction.").

Massey v. Pappalardo (In re Massey), 465 B.R. 720 (B.A.P. 1st Cir. Feb. 27, 2012) (Lamoutte, Kornreich, Tester) (Exemption under § 522(d) for full market value was properly denied when debtors did not specify dollar amount and relevant statutes had monetary caps. Debtors misread Schwab v. Reilly, 560 U.S. 770, 130 S. Ct. 2652, 177 L. Ed. 2d 234 (June 17, 2010), and trustee properly objected.), aff'g, 455 B.R. 17, 18-19 (Bankr. D. Mass. July 25, 2011) (Hoffman) (Trustee's objection to confirmation based on liquidation analysis was untimely objection to exemptions claimed in home and car for "100% of FMV." Trustee missed objection deadline under Bankruptcy Rule 4003(b)(1) but objected to confirmation under § 1325(a)(4). Citing Schwab v. Reilly, 560 U.S. 770, 130 S. Ct. 2652, 177 L. Ed. 2d 234 (June 17, 2010), "[t]he term '100% of FMV' on a debtor's Schedule C should be like catnip to a trustee. It should grab the trustee's attention and warrant an analysis to determine whether the asset in question could conceivably be worth more than the statutory exemption ceiling. If the trustee determines there is a potential value in the asset beyond the exemption ceiling he must object to the exemption within the time allowed by Rule 4003 or lose the right to sell the asset later or, in the case of a Chapter 13 plan, lose the right to object to the plan based on Schedule C.").

Smith v. Pritchett (In re Smith), 586 F.3d 69 (1st Cir. Nov. 6, 2009) (Torruella, Boudin, Saris), aff'g 398 B.R. 715 (B.A.P. 1st Cir. Dec. 29, 2008) (Votolato, Lamoutte, Feeney) (Lien that secures domestic support obligation cannot be avoided under § 522(f); because $50 per day penalty for late payment of alimony was a penalty and not actually in the nature of alimony, maintenance or support, lien that secured accumulated penalties could be avoided under § 522(f).).

Aroesty v. Bankowski (In re Aroesty), 385 B.R. 1 (B.A.P. 1st Cir. Apr. 10, 2008) (Vaughn, Carlo, Kornreich) ($500,000 Massachusetts homestead exemption is limited to $125,000 by § 522(p)(1) because legal title was transferred to debtor by nominee trust within 1,215 days of Chapter 13 petition.).

Khan v. Bankowski (In re Khan), 375 B.R. 5 (B.A.P. 1st Cir. Sept. 6, 2007) (Transfer of legal title from trust to debtor within 1,215 days before petition was transfer of interest in real property for purposes of $125,000 homestead exemption limitation in § 522(p).).

Mountain Peaks Fin. Servs., Inc. v. Shepard (In re Shepard), 328 B.R. 601 (B.A.P. 1st Cir. June 2, 2005) (Lamoutte, Votolato, Haines) (Judicial lien avoided in confirmation order is final; creditor waived appellate argument by failing to brief lien avoidance issue.).


Young v. Camelot Homes, Inc. (In re Young), 390 B.R. 480 (Bankr. D. Me. July 2, 2008) (Kornreich) (Judgment lien that impairs debtor's interest in exempt items is avoided to extent of each undisputed exemption in personal property and residence.).

In re Toppi, 378 B.R. 9 (Bankr. D. Me. Nov. 9, 2007) (Haines) (Trustee's objection to homestead claim is sustained when debtor quitclaimed interest in former marital residence to ex-wife in exchange for $50,000 and that unsecured obligation does not qualify under Maine law as proceeds from sale of exempt property.).


In re Meguerditchian,, 566 B.R. 102, 118 (Bankr. D. Mass. Mar. 28, 2017) (Bailey) (For purposes of § 522(p)(1) and (p)(2)(B), “interest” means “equity”; debtor can shelter paydown of mortgage from sale of prior homestead property when debtor acquired title to new property before the paydown from sale of prior homestead. That proceeds from sale of prior homestead were not used to acquire the new homestead property is immaterial. “Debtor . . . acquired equity as a beneficiary of the trust when he used proceeds from the previous residence to pay down the debt on the current residence; . . . the later conveyance effected no change in the extent of his equity. . . . [O]n these facts, the later conveyance would not disqualify the Debtor from relief under subsection [522](p)(2)(B)[.]”).

In re Plant, 503 B.R. 224, 229 (Bankr. D. Mass. Dec. 30, 2013) (Hillman) (No Massachusetts exemption is available for insurance proceeds earmarked to replace household goods and furnishings lost in prepetition fire. "Debtor is clearly not seeking to exempt the personal property described in the [statute,] but instead the insurance proceeds she has earmarked to replace those assets. [The statute] does not expressly protect insurance proceeds or allow them to be substituted for any of the specified personal property.").

In re Kology, 499 B.R. 20 (Bankr. D. Mass. Sept. 24, 2013) (Hillman) (Exemption limited to single lot when debtor failed to overcome evidence of intent to alienate other property claimed exempt.).

In re Welch, 486 B.R. 1, 4 (Bankr. D. Mass. Jan. 17, 2013) (Hoffman) (Section 522(p) limitation is not applicable to revision of trust beneficiary schedule within 1,215 days of petition which changed the debtor's beneficial interest from 99% to 100%; if § 522(p) is applicable, only the 1% change in beneficial interest is subject to the $146,450 cap. "The merger of equitable and legal title by operation of Massachusetts law that occurs when an individual becomes both the sole trustee and sole beneficiary of a trust is not an acquisition of title for purposes of Bankruptcy Code § 522(p).").

In re Canto, 476 B.R. 370 (Bankr. D. Mass. Aug. 14, 2012) (Hillman) (Debtor not entitled to homestead exemption in former marital residence when sale proceeds were in state court interpleader. Massachusetts homestead protected only proceeds actually received on account of sale.).

In re Canto, 476 B.R. 370 (Bankr. D. Mass. Aug. 14, 2012) (Hillman) (Lien avoidance not applicable to proceeds of residence sold under state court order when proceeds were subject of state court interpleader and debtor was not entitled to homestead exemption in proceeds that had never come into his possession.).

In re Luckham, 464 B.R. 67 (Bankr. D. Mass. Jan. 13, 2012) (Boroff) (Claim of exemption for 100% of equity or 100% of fair market value under § 522(d)(1) was not appropriate; Schedule C must be amended to state specific dollar value for homestead exemption, since § 522(d)(1) limits exemption in debtors' interest in asset up to dollar limitation. When exemption statute provides for defined interest exemption, only limited monetary interest in property is removed from bankruptcy estate, not value of entire property; claim of 100% of equity or 100% of fair market value did not adequately describe allowed exemption.).

In re O'Neal, 462 B.R. 324 (Bankr. D. Mass. Dec. 16, 2011) (Feeney) (Although federal Thrift Savings Plan account was not property of estate, since it was statutorily equivalent to 401(k) account, tax-deferred and protected by statute from assignment or attachment, if it were property of estate, TSP account would be exempt under § 522(b)(3)(C).).

In re Landry, 462 B.R. 317 (Bankr. D. Mass. Dec. 14, 2011) (Boroff) (Real estate mortgage was consensual not judicial lien and was not subject to avoidance under § 522(f).), rev'd, 479 B.R. 1 (D. Mass. Sept. 17, 2012) (Saylor).).

Cromwell v. Countrywide Home Loans, Inc. (In re Cromwell), 461 B.R. 99 (Bankr. D. Mass. Sept. 27, 2011) (Hillman) (In context of complaint seeking rescission of home loan, further hearing required to determine whether debtors can increase homestead exemption under amended Massachusetts statute, from $39,543.80 to $500,000. In absence of increased homestead, unsecured creditors would receive 85% dividend in Chapter 7 liquidation, compared to 2.6% dividend if increased exemption were allowed.), aff'g in part, rev'g in part and remanding on other grounds, 483 B.R. 36 (D. Mass. Sept. 20, 2012) (Young).).

In re Kane, No. 10-18898-JNF, 2011 WL 2119015 (Bankr. D. Mass. May 23, 2011) (Feeney) (Objection to homestead exemption was sustained under Massachusetts law when property was titled in limited liability company at time debtors recorded homestead. Although debtors were only members of LLC, dissolution by Secretary of Commonwealth did not terminate LLC under Massachusetts law, since debtors had not completed windup of LLC business affairs. Property title had not reverted to debtors individually under state law.).

In re Wyman, 437 B.R. 478 (Bankr. D. Mass. Sept. 27, 2010) (Bailey) ($33,850 lump-sum prepetition unemployment compensation payment was not exempt under § 522(d)(10)(A). Statutory exemption applied only to "right to receive" unemployment compensation. Language of § 522(d)(10)(A) differs from § 522(d)(11), which permits exemption of right to receive, or property traceable to, awards described in § 522(d)(11). Unemployment compensation is excluded from Internal Revenue levy under 26 U.S.C. § 6334, but no similar language excludes unemployment benefit from bankruptcy estate—in contrast to Social Security exclusion in 42 U.S.C. § 407. Remaining funds were asset of bankruptcy estate.).

In re Faro, No. 09-16896-FJB, 2010 WL 2787850, at *3 (Bankr. D. Mass. July 13, 2010) (unpublished) (Bailey) (Under Massachusetts exemption statutes, debtors can exempt cash and savings, but $75 per month for utilities would be "double dipping" since utilities would be reflected in schedule of current monthly expenditures.).

In re Gunnison, 397 B.R. 186 (Bankr. D. Mass. Nov. 7, 2008) (Hillman) (Under New Hampshire law, husband and wife living apart cannot each claim homestead exemption on different properties. New Hampshire law recognizes exemption in home for family, not separate exemption for each spouse.).

In re Rodrigues, 370 B.R. 467 (Bankr. D. Mass. July 5, 2007) (Feeney) (Motion to reopen closed case and revoke discharge, based on fraud in claiming exemptions, had no basis in law, since exemptions became final when no timely objections were filed under Rule 4003(b).).

In re Thurston, No. 99-11836-JNF, 2007 WL 1860892, at *8 (Bankr. D. Mass. June 27, 2007) (unpublished) (Feeney) (Proceeds of debtor's settlement of flood damage to home and contents are not exempt under Massachusetts's homestead exemption because "such proceeds cannot be occupied.").

In re Walsh, 359 B.R. 389 (Bankr. D. Mass. Jan. 11, 2007) (Although $125,000 homestead cap in § 522(p) applies because debtor acquired ownership interest in homestead 371 days before petition, nonfiling spouse is not subject to § 522(p) and can claim $500,000 homestead exemption under Massachusetts law for purposes of § 1325(a)(4) best-interests-of-creditors-test calculation.).

In re Melito, 357 B.R. 684 (Bankr. D. Mass. Jan. 4, 2007) (Somma) (Debtors did not forfeit Massachusetts homestead notwithstanding that they moved into an apartment and put homestead on market.).

In re Zecher, No. 06-12151 WCH, 2006 WL 3519316 (Bankr. D. Mass. Dec. 6, 2006) (unpublished) (Chapter 13 debtor who transferred homestead to and from a trust during 1,215 days before petition is limited by § 522(p) to a homestead exemption of $125,000.).

In re Puglia, No. 04-13438-RS, 2006 WL 849879 (Bankr. D. Mass. Mar. 28, 2006) (unpublished) (Somma) (Confirmed plan funded from refinancing of home voluntarily dedicated exempt assets to plan; debtor could not object to trustee's disbursement of exempt property to unsecured creditor.).

In re Haque, 331 B.R. 524, 526 (Bankr. D. Mass. Oct. 18, 2005) (Rosenthal) (Failure to move for lien avoidance in prior Chapter 7 case does not prevent avoidance in subsequent Chapter 13. "There is nothing in the language of the Bankruptcy Code . . . to suggest that a judicial lien that is not avoided in an earlier Chapter 7 case may not be avoided in a subsequent Chapter 13 if the requirements of section 522(f) are met.").

In re Hadsell, 327 B.R. 520 (Bankr. D. Mass. July 15, 2005) (Boroff) (Debtors can avoid judicial lien arising from seller financing; heir of deceased mortgagee is judicially estopped from asserting lack of authority to release satisfied mortgage.).

New Hampshire

In re Haseltine, No. 07-10416-JMD, 2007 WL 2932807 (Bankr. D.N.H. Oct. 5, 2007) (unpublished) (Deasy) (Debtors entitled to homestead exemption in separate parcel abutting parcel upon which residence is located under N.H. Rev. Stat. Ann. § 480:1. Debtors constructed barn on second parcel and actively use both parcels as homestead.).

In re Dubravsky, 374 B.R. 467 (Bankr. D.N.H. Aug. 20, 2007) (Deasy) (Under New Hampshire law debtor is entitled to homestead exemption in marital residence that she ceased to occupy even though debtor had ceased her occupancy pursuant to divorce decree two and one-half years prior to petition and notwithstanding quitclaim deed to former husband.).

In re Gagnon, No. 03-10934, 2005 WL 1331142 (Bankr. D.N.H. June 1, 2005) (unpublished) (Deasy) (Chapter 13 debtor can use New Hampshire wild card exemption to protect multiple items of real and personal property.).

In re Gagnon, No. 03-10934, 2005 WL 1331142 (Bankr. D.N.H. June 1, 2005) (unpublished) (Deasy) (When the sum of all mortgages, liens and exemptions is $248,267.94 and the value of the real property is $240,750, a $6,000 third lien impairs the debtor's exemptions and is avoidable in its entirety under § 522(f).).

Puerto Rico

In re Mendez Garcia, No. 15-10374, 2017 WL 5514349 (Bankr. D.P.R. Nov. 16, 2017) (Tester) (Chapter 13 debtor’s homestead exemption fails because no provision of Puerto Rico law allows a homestead exemption in property that is not titled in the debtor.).

In re Lugo, No. 13-009569 EAG, 2016 WL 7367763 (Bankr. D.P.R. Dec. 19, 2016) (Godoy) (When undisputed value of property is $82,000 and debtors’ exemption is $82,000, all of a $25,000 judicial lien impairs the exemption and can be avoided under § 522(f).).

In re Lugo, No. 13-009569 EAG, 2016 WL 7367763, at *3 (Bankr. D.P.R. Dec. 19, 2016) (Godoy) (When property is valued at $82,000 and debtors’ exemption is $82,000, $25,000 judgment lien impairs the debtors’ exemptions and is avoidable under § 522(f). “But, the avoidance of the judicial lien does not nullify the underlying state court judgment. The lienholders retain their possessory rights over the wooden structure under Puerto Rico law.”).

In re Nazario, 533 B.R. 1 (Bankr. D.P.R. July 15, 2015) (Flores) (Lease of lower level of two-story home in which debtor resides did not defeat homestead exemption under the law of Puerto Rico.).

In re Velez, No. 14-07269 EAG, 2015 WL 4366023 (Bankr. D.P.R. July 15, 2015) (Godoy) (Homestead exemption under Puerto Rico Homestead Act is not disallowed solely because debtor does not use the property as his residence when nondebtor wife and son reside in the home.).

In re Colon, 525 B.R. 1 (Bankr. D.P.R. Jan. 12, 2015) (Lamoutte) (Co-owners of real property can each claim homestead exemption under law of Commonwealth.).

In re Diaz Collazo, 524 B.R. 431 (Bankr. D.P.R. Jan. 9, 2015) (Lamoutte) (Debtor can claim homestead exemption under Commonwealth law, notwithstanding that property is owned in conjugal partnership with nonfiling spouse.).

In re Navarro, 504 B.R. 316 (Bankr. D.P.R. Jan. 28, 2014) (Lamoutte) (Puerto Rico homestead exemption extends only to portion of property used as principal residence and excludes any portion rented to or occupied by third party.).

In re Cintron, 499 B.R. 209 (Bankr. D.P.R. Sept. 18, 2013) (Lamoutte) ("Wearing apparel" includes jewelry under Puerto Rico exemption statute.).

In re Soto, No. 12-01630 BKT, 2012 WL 3018058 (Bankr. D.P.R. July 24, 2012) (Tester) (Puerto Rico's Home Protection Act waived homestead protection when Bankruptcy Code was applicable; trustee's objection to homestead exemption was sustained.).

In re Rivera Rodriguez, No. 12-02411 BKT, 2012 WL 2738847 (Bankr. D.P.R. July 9, 2012) (Tester) (Puerto Rico's Home Protection Act waived homestead protection when Bankruptcy Code was applicable. Trustee's objection to homestead exemption was sustained.).

In re Rodriguez, No. 11-09787 BKT, 2012 WL 2738060 (Bankr. D.P.R. July 6, 2012) (Tester) (Puerto Rico's Home Protection Act waived homestead protection when Bankruptcy Code was applicable. Trustee's objection to homestead exemption was sustained.).

In re Santos, No. 12-02413 BKT, 2012 WL 2739482 (Bankr. D.P.R. July 6, 2012) (Tester) (Puerto Rico's Home Protection Act waived homestead protection when Bankruptcy Code was applicable. Trustee's objection to homestead exemption was sustained.).

In re Green, No. 12-00337 BKT, 2012 WL 2603273 (Bankr. D.P.R. July 5, 2012) (Tester) (Exemption in § 522(d)(1) is not available when Puerto Rico Home Protection Act provides exclusive homestead protection.).

In re Lozada Rivera, 470 B.R. 109 (Bankr. D.P.R. May 3, 2012) (Lamoutte) (Debtor was not entitled to homestead exemption in home under construction that did not meet requirements of "residence" under § 522(d)(1).).

In re Ramon, No. 08-1293 (ESL), 2012 WL 1344353 (Bankr. D.P.R. Apr. 17, 2012) (Lamoutte) (When Chapter 13 trustee had timely objected to exemption before conversion, Chapter 7 trustee's renewed objection was also timely. However, objection related to postpetition cause of action acquired more than 180 days after petition which was not property of estate under § 348(f). Exemption objection was moot.).

Cardona Figueroa v. Banco Bilboa Vizcaya-P.R. (In re Cardona Figueroa), No. 04-00063, 2006 WL 3898305 (Bankr. D.P.R. Jan. 25, 2006) (unpublished) (Carlo) (That debtors claimed exemption in insurance policy during Chapter 13 case before conversion did not avoid lien under § 522(f).).

B.  Second Circuit

Swinmelar v. Baker (In re Baker), 604 F.3d 727 (2d Cir. May 14, 2010) (Raggi, Hall, Chin) (Proceeds from annuity purchased and owned by insurance company as part of wrongful death settlement are exempt under New York law.).


In re Rodriquez, 327 B.R. 86 (Bankr. D. Conn. July 5, 2005) (Weil) (Order in prior Chapter 7 case that determined validity of judgment lien precludes debtors' new motion to avoid judicial lien. Prior Chapter 7 was still open, and current motion to avoid lien involves same parties.).

New York

Eastern District of New York

Levinson v. R&E Prop. Corp., 395 B.R. 554 (E.D.N.Y. Aug. 27, 2008) (Spatt) (Judicial lien cannot be avoided because debtor's interest as tenant by entirety is valued at 100% of property's value, producing sufficient equity to satisfy all liens.).

In re Schneider, No. 12-77005-ast, 2013 WL 5979756, at *6 (Bankr. E.D.N.Y. Nov. 8, 2013) (Trust) (Avoidance of judicial lien under § 522(f) requires debtor establish prima facie basis for relief notwithstanding absence of objection. "Procedurally, a § 522(f) motion must 'identify[ ] the property subject to the judicial lien [and] . . . provide information concerning the value of the property, the amount due on account of all liens against it, and the amount of the exemption claimed by the debtor.' . . . To state a claim for relief under § 522(f)(1)(A), the debtor must establish four basic elements: 'First, there must be an exemption to which the debtor "would have been entitled under subsection (b) of this section." . . . Second, the property must be listed on the debtor's schedules and claimed as exempt. Third, the lien must impair that exemption. Fourth, the lien must be . . . a judicial lien.'").

In re Schneider, No. 12-77005-ast, 2013 WL 5979756, at *11 (Bankr. E.D.N.Y. Nov. 8, 2013) (Trust) (Use of § 522(f) requires debtor claim an actual homestead exemption in an amount certain; lien avoidance not available for exemption claim of $0.00, which is "'tantamount to no exemption at all.'").

In re Conte, No. 11-77839-ast, 2012 WL 1865423 (Bankr. E.D.N.Y. May 21, 2012) (Trust) (Applying Farrey v. Sanderfoot, 500 U.S. 291, 111 S. Ct. 1825, 114 L. Ed. 2d 337 (May 23, 1991), judgment lien that secured debt to former spouse was avoidable.).

In re Heaney, 453 B.R. 42 (Bankr. E.D.N.Y. June 24, 2011) (Trust) (When property is subject to more than one lien, avoided lien will not be considered in § 522(f)(2)(A) calculation with respect to other liens; judicial liens impairing homestead are avoided, starting with most junior lien. Agreeing with In re Levinson, 372 B.R. 582 (Bankr. E.D.N.Y. July 24, 2007) (Eisenberg), aff'd, 395 B.R. 554 (E.D.N.Y. Aug. 27, 2008) (Spatt), for purposes of § 522(f), debtor's tenancy by entirety interest in property was entire property value, since tenant by entirety is vested with entire property.).

In re Heaney, 453 B.R. 42 (Bankr. E.D.N.Y. June 24, 2011) (Trust) (Agreeing with In re Levinson, 372 B.R. 582 (Bankr. E.D.N.Y. July 24, 2007) (Eisenberg), aff'd, 395 B.R. 554 (E.D.N.Y. Aug. 27, 2008) (Spatt), for purposes of § 522(f) lien avoidance, debtor's tenancy by entirety interest in property was entire property value, since tenant by entirety is vested with entire property. For property subject to more than one lien, lien avoided will not be considered in § 522(f)(2)(A) calculation with respect to other liens. Judicial liens impairing homestead were avoided, starting with most junior lien.).

In re Mulder, No. 810-74217-reg, 2010 WL 4286174, at *3, *4 (Bankr. E.D.N.Y. Oct. 26, 2010) (Grossman) (Lien avoidance under § 522(f) is not contingent on debtor's receiving discharge. Section 349(b) reinstates avoided liens upon dismissal of case, but when debtor completes plan, even though not eligible for or receiving discharge, case is closed rather than dismissed. "This Court finds no support in the Code to use Section 349 as a basis on which to condition Section 522(f) lien avoidance upon entry of a discharge. This position inappropriately assumes that failure to receive a discharge goes hand in hand with dismissal of a case. However, there are fact scenarios under which a case may be closed without a discharge but not 'dismissed.' . . . This debtor would be ineligible to receive a discharge, but if the debtor successfully completes the plan, then the case would be closed without a discharge or a dismissal. Therefore, Section 349 would not be triggered and any liens avoided during such a case would not be restored. . . . Conditioning lien avoidance on a discharge in a case is contrary to the language of Section 349, which only comes into play when a case is dismissed, irrespective of whether or not a discharge is ultimately attained. The Court also finds that Section 349 was not intended to function as a limitation on any section of the Bankruptcy Code while the case is pending. Section 349 attempts to undo certain relief granted during the bankruptcy case, but it only functions upon dismissal. Moreover, until dismissal the debtor must be allowed access to relief to which he is entitled under the Bankruptcy Code. Section 349 does not provide absolute protection to parties and was not intended to." Although lien avoidance under § 522(f) is dependent on property's being exempt, § 522(c)'s provision for lien survival does not apply to lien avoided under § 522(f) or (g). Nothing in Code indicates that § 522(f) avoidance "is anything other than immediate. If Congress had intended lien avoidance to be conditioned upon entry of a discharge, it could have easily drafted a statute which would accomplish this intent.").

In re Levinson, 372 B.R. 582 (Bankr. E.D.N.Y. July 24, 2007) (Eisenberg) (When property subject to a judicial lien is held by debtor and nonfiling spouse as tenants by the entirety, entire value of property at petition is assigned to debtor and lien avoidance under § 522(f) is not available because sum of judgment lien and other liens is less than fair market value of property as a whole.).

Northern District of New York

Danussi v. Kaska (In re Kaska), 424 B.R. 616 (N.D.N.Y. Feb. 26, 2010) (Hurd) (Debtor could claim homestead exemption under New York law in portion of car dealership converted into personal residence two years before bankruptcy.).

Danussi v. Kaska (In re Kaska), 424 B.R. 616 (N.D.N.Y. Feb. 26, 2010) (Hurd) (Conversion of portion of car dealership building into personal residence two years before bankruptcy lacked intent to defraud, and homestead exemption would not be limited by § 522(o)—assuming that conversion of property use would be "disposition" of nonexempt property for § 522(o) purposes.).

Jacob v. Swimelar (In re Jacob), 418 B.R. 37 (N.D.N.Y. Oct. 16, 2009) (Hurd) (Under New York law, debtors' annuity payments were exempt.).

CFCU Cmty. Credit Union v. Little (In re Little), No. 6:06-CV-1148 (LEK), 2007 WL 2791122 (N.D.N.Y. Sept. 24, 2007) (unpublished) (Kahn) (Debtors are entitled to homestead exemption at time of petition, not at time of loan. New York increased its homestead exemption from $10,000 to $50,000 between time of loan and bankruptcy filing. Amended homestead exemption did not substantially impair creditor's contractual rights.).

In re Harrington, No. 13-32013, 2017 WL 4279200 (Bankr. N.D.N.Y. Sept. 22, 2017) (Cangilos-Ruiz) (Citing Law v. Siegel, __ U.S. __, 134 S. Ct. 1188, 188 L. Ed. 2d 146 (Mar. 4, 2014), Chapter 13 debtors can amend exemptions on eve of lien avoidance trial notwithstanding some prejudice to objecting lienholders.).

In re Harrington, No. 13-32013, 2017 WL 4279200, at *7*8 (Bankr. N.D.N.Y. Sept. 22, 2017) (Cangilos-Ruiz) (When lien encumbers two properties and debtors claim one exemption extending to both properties, lien avoidance calculation under § 522(f) is best determined by combining liens, exemption and values. “§ 522(f) does not specifically address the situation before the court where a mortgage lien covers two different properties. . . . [T]he ‘property’ which secures the Coombs lien includes both Elm Street and Creal Road, and both parcels constitute the ‘property’ that Debtors have claimed as exempt. . . . The court shall apply the statutory formula by adding to the judicial lien under consideration: (i) all other liens encumbering Elm Street and Creal Road combined and (ii) the amount of the exemptions claimed as to both parcels. To the extent that the total exceeds the combined values of the Debtors’ interests in Elm Street and Creal Road (devoid of all liens), impairment will be found.”).

In re Quintana, No. 08-61884, 2009 WL 5042516 (Bankr. N.D.N.Y. Dec. 15, 2009) (unpublished) (Davis) (Failure to file timely objection to exemptions under Bankruptcy Rule 4003(b) is not fatal when debtor moves to avoid judgment lien and lienholder resists by challenging validity of exemption under Bankruptcy Rule 4003(d). It was unnecessary to determine whether exemption objection was timely when it was raised in context of defense to lien avoidance.).

In re Quintana, No. 08-61884, 2009 WL 5042516 (Bankr. N.D.N.Y. Dec. 15, 2009) (unpublished) (Davis) (When debtor filed motion to avoid judgment lien, lienholder may defend by challenging validity of underlying exemption under Bankruptcy Rule 4003(d) notwithstanding that creditor did not file timely objection to exemption.).

In re Roche, No. 09-30332, 2009 WL 2873075 (Bankr. N.D.N.Y. Aug. 11, 2009) (Cangilos-Ruiz) (Applying § 522(a)(2) fair market value on date of petition, two judicial liens were unsecured and avoidable under § 522(f).).

In re Brown, Nos. 06-30199, 06-30872, 2007 WL 2120380, at *14-15, *17 (Bankr. N.D.N.Y. July 23, 2007) (unpublished) (Gerling) (New York's bankruptcy-specific exemptions with respect to cash and a car do not conflict with § 522(d) and are not unconstitutional under either Uniformity Clause or Supremacy Clause. "[Section] 522(b) represented a compromise whereby the states were given some flexibility to meet the needs and fresh-start requirements of their residents who elected to seek bankruptcy relief. . . . New York . . . created certain exemptions specific to its residents who file bankruptcy. . . . New York clearly has not expanded its exemptions, particularly those of a motor vehicle and cash, to a limit which would place those provisions . . . in conflict with those provided by Congress in . . . § 522(d). In enacting the legislation, the Court believes that its approach was 'commensurate with § 522(b)'s goals of balancing the state's interests in defining exemptions according to the needs and conditions of the locality, and the Code's fresh-start policy and uniformity.'" Retroactive application of New York's increase of its homestead exemption from $10,000 to $50,000 does not violate Contract Clause and is not an unlawful taking under Fifth Amendment. "At the time the Credit Union obtained its judgment [2002] . . . Code § 522(f) was in effect and creditors . . . should have been aware of the statute's impact on any judgment lien it might obtain in the context of a bankruptcy case.").

Southern District of New York

In re Magee, 444 B.R. 254, 263 (Bankr. S.D.N.Y. Feb. 3, 2011) (Morris) (Amount of homestead exemption at time of filing case governs. Debtor claimed $10,000 homestead exemption in prior Chapter 7 case. New York increased its homestead exemption from $10,000 to $50,000. In subsequent Chapter 13 case, debtor was entitled to new $50,000 exemption. "[T]he provisions of the Bankruptcy Code that concern exemptions make no qualifications for repeat filers, and if the drafters of the statute had intended such a limitation, then it was well within their capabilities to provide it. For example, Bankruptcy Code § 362(c)(3) and (4) provides [sic] that the effect of the automatic stay may be limited in the cases of repeat filers. There is no similar provision in the Code addressing exemptions in the context of a subsequent case.").

In re Magee, 444 B.R. 254 (Bankr. S.D.N.Y. Feb. 3, 2011) (Morris) (When New York increased its homestead exemption in between two cases by the same debtor, debtor is entitled to higher exemption in the second case. In prior Chapter 7 case, debtor claimed $10,000 homestead exemption. New York subsequently raised its homestead exemption to $50,000. Debtor then filed a Chapter 13 case and was allowed new $50,000 exemption.).

Western District of New York

In re Gierlinger, 580 B.R. 314 (Bankr. W.D.N.Y. Nov. 27, 2017) (Bucki) (Six years after completion of payments, discharge and closing, Chapter 13 case is reopened to avoid judgment lien under § 522(f); postdischarge efforts by lienholder to renew judgment were not contemptuous of discharge injunction because debtor caused the whole problem by neglecting to avoid the lien earlier.).

In re Faulring, 573 B.R. 71, 74 (Bankr. W.D.N.Y. Aug. 30, 2017) (Bucki) (For purposes of lien avoidance under § 522(f), homestead exemption under § 522(d)(1) does not include a separate house that the debtor rents to tenants and a wooded lot of approximately 65 acres notwithstanding that all three parcels are contiguous. Applying the definition of principal residence in § 101(13A) and the definition of “incidental property” in § 101(27B), “[t]he structure in which the debtor lives is per se a residence that the debtor may exempt under 11 U.S.C. § 522(d)(1). . . . [T]he pole barn is similarly exempt as property incidental to the debtor’s residence. . . . However, neither the stand-alone rental unit nor the 65 acres of undeveloped land would satisfy the definition of ‘incidental property,’ as stated in 11 U.S.C. § 101(27B). . . . [T]he federal statute extends the homestead exemption only to property that the debtor ‘uses as a residence.’ . . . Because the debtor does not use the rental unit and undeveloped acreage as his residence, they are not exempt under section 522(d)(1) of the Bankruptcy Code.”).

In re Wrobel, 508 B.R. 271 (Bankr. W.D.N.Y. Mar. 28, 2014) (Kaplan) (Use of $75,000 from divorce settlement to acquire interest in homestead from future son-in-law was not fraud for § 522(o) purposes, but law firm's lien on homestead will not be avoided for 1,215 days to test debtor's good faith.).

In re Bromstead, 354 B.R. 649 (Bankr. W.D.N.Y. Nov. 17, 2006) (Bucki) (Because judgment lien against homestead was perfected prior to debtor's acquisition of property, lien was not subject to avoidance under § 522(f), citing Marine Midland Bank v. Scarpino (In re Scarpino), 113 F.3d 338 (2d Cir. 1997).).


In re LaVictoire, Nos. 10-10076, 10-10325, 2011 WL 1168288 (Bankr. D. Vt. Mar. 29, 2011) (unpublished) (Brown) (Mother and son debtors in separate cases share homestead exemption in property owned as joint tenants with survivorship rights. Applying CFCU Community Credit Union v. Hayward, 552 F.3d 253 (2d Cir. Jan. 9, 2009) (Wesley, Hall, Gibson), exempt property is determined on date of petition.).

In re LaVictoire, Nos. 10-10076, 10-10325, 2011 WL 1168288 (Bankr. D. Vt. Mar. 29, 2011) (unpublished) (Brown) (Mother and son debtors in separate cases can avoid judicial lien on property co-owned as joint tenants with right of survivorship. Under Vermont law, each debtor was entitled to share of homestead exemption at petition and lien impaired each debtor's share of that exemption. If cases were dismissed, liens would remain intact.).

In re Ahokas, 361 B.R. 54, 56 (Bankr. D. Vt. Jan. 26, 2007) (Brown) (In a dispute whether § 522(f)(1) permits avoidance of liens arising from a construction dispute: "the state court amended judgment contains both statutory and judicial elements, . . . the contractor's lien portion is statutory and may not be avoided, . . . the award of sums available only under the Prompt Payment Act constitutes a judicial lien, impairs the Debtor's exemption, and is therefore avoidable under § 522(f).").

C.  Third Circuit

In re Makowka, 754 F.3d 143 (3d Cir. June 9, 2014) (Hardiman, Sloviter, Barry) (Homeowners association's lawsuits against debtor to collect unpaid dues were not actions to enforce statutory liens under Pennsylvania law; therefore, three-year limitation on statutory lien expired and liens more than three years old were avoidable under § 522(f).).

Rosenberg v. Corio (In re Corio), No. 09-1383, 2010 WL 1063861, at *4 (3d Cir. Mar. 24, 2010) (unpublished) (Ambro, Smith, Aldisert) (Section 522(f) is available to avoid judgment lien on homestead property when judgment arose during Chapter 13 case and avoidance action was brought after conversion to Chapter 7. "[W]e are aware of [no cases] holding that only a judicial lien that exists as of the filing date can be avoided under § 522(f).").

In re Schick, 418 F.3d 321 (3d Cir. Aug. 9, 2005) (Roth, Fuentes, Becker) (New Jersey Motor Vehicle Commission's lien for unpaid vehicle surcharges is statutory lien that is not avoidable under § 522(f).).

New Jersey

In re Bowen, No. 08-4724 (RBK), 2009 WL 1173522 (D.N.J. Apr. 24, 2009) (unpublished) (Kugler) (After dismissal of appeal from avoidance of judicial lien, creditor had no standing to appeal subsequent order directing payment of proceeds from sale of property to another creditor.).

Rosenberg v. Corio (In re Corio), No. 07-5864-(MLC), 2009 WL 78157 (D.N.J. Jan. 9, 2009) (unpublished) (Cooper) (Failure to oppose motion to void judicial lien binds creditor; failure to assert lack of jurisdiction over judicial lien in bankruptcy court precludes argument on appeal.).

In re Ferrante, No. 09-13098/JHW, 2009 WL 2971306 (Bankr. D.N.J. Sept. 10, 2009) (unpublished) (Wizmur) (Lien avoidance under § 522(f) is not subject to conditions in § 522(h) and is effective immediately—without regard to whether the debtor receives a discharge.).


Eastern District of Pennsylvania

In re Graves, 464 B.R. 225 (Bankr. E.D. Pa. Jan. 24, 2012) (Coleman) (Wife did not have interest in settlement proceeds received solely for husband's personal injury, and wife could not claim § 522(d)(11)(D) exemption for loss of consortium. If wife had separate claim for loss of consortium, it would be part of bankruptcy estate and subject to exemption, but settlement of husband's cause of action did not include recovery for wife's claim.).

In re Cossman, No. 04-13355F, 2004 WL 5865047 (Bankr. E.D. Pa. May 13, 2004) (unpublished) (Fox) (Inchoate liens on right of survivorship in real property owned as tenants by entirety were judicial liens for purposes of § 522(f)(1) and were avoidable because they impaired exemptions. Although liens were not presently enforceable, they created cloud on title to real property, impairing entireties exemption and subjecting judgment liens to avoidance under § 522(f).).

Middle District of Pennsylvania

Dronsfield v. McGarrity (In re Dronsfield), 441 B.R. 242 (Bankr. M.D. Pa. Sept. 14, 2010) (France) (Applying Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (Apr. 24, 1950), plan failed to give adequate notice to lienholder that confirmation would avoid judgment lien. Debtors were discharged in 2001. Case was reopened to determine whether judgment lien had been avoided by discharge. When plan was filed in 1997, court had not adopted model plan. Current model plan in district requires debtor to indicate at top of first page whether plan includes motion to avoid liens. Due process requires notice reasonably calculated, under circumstances, to apprise interested parties of pending action and afford opportunity to present objections. Although lienholder filed objection to plan, it was in context of disputed value, not lien avoidance, and hearing was never held on that objection.).

In re Miller, 424 B.R. 171 (Bankr. M.D. Pa. Feb. 5, 2010) (France) (Liberally construing federal exemption in § 522(d)(10)(D) and applying Gianakas v. Gianakas (In re Gianakas), 917 F.2d 759 (3d Cir. Oct. 19, 1990) (Sloviter, Becker, Rosenn), income maintenance award in divorce decree was reasonably necessary for debtor's support; same criteria apply to § 522(d)(10)(D) as in § 523(a)(5) nondischargeability determination.).

Woltman v. PNC Bank (In re Woltman), No. 1:07-bk-01647MDF, 2008 WL 5157477 (Bankr. M.D. Pa. Nov. 18, 2008) (unpublished) (France) (Debtors may not avoid judgment lien postconfirmation when confirmed plan took inconsistent position that lien would be paid in full.).

Western District of Pennsylvania

In re Scalera, 521 B.R. 513, 519 (Bankr. W.D. Pa. Nov. 19, 2014) (Böhm) (Citing Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S. Ct. 1644, 118 L. Ed. 2d 280 (Apr. 1, 1992), and notwithstanding Clark v. Rameker, __ U.S. __, 134 S. Ct. 2242, 189 L. Ed. 2d 157 (June 12, 2014), holder of nondischargeable judgment not entitled to stay relief to execute on inherited IRA when debtors claimed exemption in IRA and no one timely objected. "Movants fail to cite to any authority which would allow a moving party to challenge a debtor's exemption after the applicable objection period has closed if said exemption was later found to be impermissible by a change in law or interpretation of law. . . . Movants' argument that Debtor's exemption of the Inherited IRA should be disallowed based on Clark v. Rameker's determination that such an exemption is improper ignores the command of the Supreme Court in Taylor v. Freeland & Kronz, which held that failure to timely object to a debtor's exemption would result in the exemption becoming final regardless of whether Debtor 'had a colorable statutory basis for claiming it.'").

In re Young, 467 B.R. 792 (Bankr. W.D. Pa. Mar. 30, 2012) (Deller) (Condominium association's lien for unpaid assessments was based on security interest and was not a statutory or judicial lien; lien was not avoidable.), rev'd and remanded, Young v. 1200 Buena Vista Condos., 477 B.R. 594 (W.D. Pa. Aug. 27, 2012) (Schwab).).

D.  Fourth Circuit


In re Aristondo, No. 11-14550PM, 2011 WL 4704218 (Bankr. D. Md. Oct. 4, 2011) (Mannes) (Tax refunds from prepetition earned income were not exempt from attachment under Maryland law.).

In re Smith, No. 10-21614PM, 2010 WL 3564837 (Bankr. D. Md. Sept. 13, 2010) (unpublished) (Mannes) (Under applicable state law, debtors converted ownership from tenancy in common to tenancy by entirety and were entitled to entireties exemption. Trustee's objection to exemption raised fraudulent conveyance issues that must be determined in adversary proceeding.).

In re Jones, No. 03-16931-WIL, 2006 WL 4595783 (Bankr. D. Md. Aug. 11, 2006) (Lipp) (Applying § 522(f) formula after valuing property, judicial lien is avoided only to extent it impairs exemption.).

In re Kositphasaj, No. 02-24681, 2006 WL 4854386 (Bankr. D. Md. Mar. 31, 2006) (unpublished) (Alquist) (Without deciding whether conversion to Chapter 13 triggers a new period for objections to exemptions, exemption in real property is limited to amount claimed in Chapter 7 case, leaving equity for distribution in Chapter 13. Although debtor claimed exemption in excess of $5,000 provided under Maryland law, there were no timely objections in Chapter 7 case and claimed amount of $6,200 is allowed.).

North Carolina

Eastern District of North Carolina

United States v. McOuat, No. 5:16-CV-691-BR, 2017 WL 6503617, at *6 (E.D.N.C. Dec. 19, 2017) (Britt) (Bankruptcy court determination that debtor did not commit fraud against government in lien avoidance action under § 522(f) does not preclude False Claims Act action against debtor based on same fraud because “the standards for fraud for the purposes of defendant’s avoidance motion and for FCA liability are different.”).

In re Rogers, No. 16-02884-5-JNC, 2016 WL 5794707 (Bankr. E.D.N.C. Oct. 3, 2016) (Callaway) (Debtor not entitled to North Carolina homestead exemption in adjacent lot that includes a rental property in which debtor has never resided.).

In re Tillman, 565 B.R. 586 (Bankr. E.D.N.C. Sept. 30, 2016) (Warren) (After valuation, all judicial liens impair the debtor’s exemption and are avoidable under § 522(f).).

In re Smith, No. 14-00310-5-DMW, 2014 WL 3953301 (Bankr. E.D.N.C. Aug. 12, 2014) (Warren) (Debtor entitled to $60,000 North Carolina homestead exemption for unmarried debtors 65 years of age and older when clear intent of debtor and deceased husband was to title property in couple as tenants by the entirety.).

In re Whitney, No. 13-05671-8-RDD, 2014 WL 183821 (Bankr. E.D.N.C. Jan. 15, 2014) (Doub) (Debtor may claim North Carolina homestead exemption in inherited property used as a residence only part time when there is intent to reside permanently.).

In re Corey, No. 12-03081-8-RDD, 2013 WL 3788239, at *2 (Bankr. E.D.N.C. July 18, 2013) (Doub) (Debtor who owned property as tenant by the entirety with nonfiling spouse can avoid judicial lien against debtor's interest (only) to protect homestead against possibility that tenancy will be severed. Under North Carolina law, "a judgment lien against only one spouse does not extend to real property held as tenants by the entirety. . . . A judgment lien against both spouses on a joint debt will attach to tenants by the entirety property. . . . [J]udgment [lien here] is against the Debtor individually and not her non-debtor spouse, [therefore] the judgment does not attach to the Residence as it is presently held . . . . However, . . . upon the severance of the tenancy by entirety, any valid judgments against an individual will attach to the real property now held by the individual. . . . [W]ere the Debtor's non-filing spouse to precede her in death or the tenancy by entirety be otherwise severed, . . . judicial lien would attach to the Residence at that time.").

In re Price, No. 12-01769-8-RDD, 2012 WL 2953729 (Bankr. E.D.N.C. July 19, 2012) (Doub) (Lien avoidance motion was moot because, under North Carolina law, judgment does not constitute lien against personal property unless and until sheriff has seized property under writ of execution. Judgment here was unsecured as of petition date.).

Raleigh Plumbing & Heating, Inc. v. Lamanna (In re Lamanna), No. H-11-00134-8-AP, 2012 WL 909652 (Bankr. E.D.N.C. Mar. 15, 2012) (Humrickhouse) (Judicial lien impaired exemption and was avoidable by any method of counting. When judgment lien attached to interest of one co-owner in tenancy-in-common property, some courts start with entire debt and deduct one-half of property value while others start with one-half of indebtedness. Under either method, sum of liens and exemption exceeded value. Judicial lien impaired exemption and would be avoided at confirmation.).

In re Voliva, No. 10-10031-8-RDD, 2011 WL 6301232 (Bankr. E.D.N.C. Dec. 16, 2011) (Doub) (Although debtors were not currently able to live in home because of Hurricane Irene damage, evidence established it was their residence and eligible for exemption at time of filing. Debtors used property to extent possible, intending to maintain it as permanent residence. Debtors were entitled to North Carolina homestead exemption.).

In re Voliva, No. 10-10031-8-RDD, 2011 WL 6301232 (Bankr. E.D.N.C. Dec. 16, 2011) (Doub) (Objecting party had burden to show that exemptions were not proper. Debtors were entitled to homestead exemption in property they continued to use as their residence at date of filing notwithstanding that they were not able to live in property because of hurricane damage.).

In re Nelson, No. 09-03593-8-SWH, 2010 WL 3911387, at *2 (Bankr. E.D.N.C. Oct. 1, 2010) (Humrickhouse) (Exemptions are based on values at petition date, but amendments to exemptions are liberally allowed absent evidence of bad faith or prejudicial effect on creditors. Debtors originally claimed property exempt as tenancy by entirety. One debtor moved out of residence, and case was converted to Chapter 7. Debtors amended to claim state homestead exemption in proceeds from sale of property by Chapter 7 trustee. Debtors were each entitled to homestead exemption in effect at time of initial filing. "Given that the debtors were living in the same household at the time of filing, the fact that they separated some time after filing has no bearing.").

In re Nelson, No. 09-03593-8-SWH, 2010 WL 3911387 (Bankr. E.D.N.C. Oct. 1, 2010) (Humrickhouse) (After conversion to Chapter 7, debtors can amend exemptions to claim portion of proceeds from sale of residence by Chapter 7 trustee and can avoid judicial lien that impairs that exemption. Debtors were entitled to homestead exemption at time of filing case. Debtors originally claimed property exempt as tenancy by entirety. After conversion and after one debtor moved out of residence, exemptions were amended to claim state homestead exemption. Court rejects judgment lienholder's contention that she was prejudiced by amendment. Creditor argued that had she known debtors would claim homestead exemption rather than tenancy by entirety, she would have bid at trustee's sale.).

In re Baldwin, No. 09-09854-8-JRL, 2010 WL 1427587, at *1 (Bankr. E.D.N.C. Apr. 7, 2010) (unpublished) (Leonard) (When trustee objected to scheduling and exemption of potential consumer rights causes of action, with no value listed, court authorized this notation to Schedule C: "The debtor claims an exemption in any possible consumer rights claim only to the extent that the settlement/award is found by the Bankruptcy Court, upon the filing of a Motion for Approval of Settlement/Award and for Allowance of Exemptions and an Amendment to this Schedule C, to be in the nature of a personal injury claim, if allowed as exempt under applicable law, or to the extent that it is found to be other than a personal injury claim only to the extent of the dollar amount available to the debtor under another exemption, such as the wildcard exemption, under applicable exemptions law. The time within which the trustee may object to the claiming of any exemption in this asset, shall be deemed tolled until such time as the Motion and Amendment are filed and served upon the trustee.").

In re Matthews, No. 09-04497-8-JRL, 2010 WL 1416797 (Bankr. E.D.N.C. Apr. 2, 2010) (unpublished) (Leonard) (Although Internal Revenue Code § 6334 exempts specific property from levy, it does not prevent attachment of tax lien to otherwise exempt property; IRS has secured claim, and § 522(c)(2)(B) insulates perfected tax lien from exemptions that might be available under state law.).

In re Connor, 419 B.R. 304, 307 (Bankr. E.D.N.C. Nov. 19, 2009) (Leonard) (Notwithstanding § 522(b)(1) prohibition against joint debtors' electing exemptions under different schemes, under North Carolina opt-out statute, one spouse met § 522(b)(3) domicile requirement and was obligated to claim exemptions under North Carolina law, but other spouse had lived in Florida for portion of 730 days prior to filing and was not eligible to claim either Florida or North Carolina exemptions—that spouse was required to claim federal exemptions. Plain language of § 522(b)(1) does not apply when one joint filer is not eligible for state exemptions because § 522(b)(1) only applies when debtors "elect" between federal and state exemptions. "In opt-out states, however, debtors do not elect to claim state exemptions, they are required to claim state exemptions. . . . Section 522(b)(1) does not speak to joint debtors' ability to claim federal and state exemptions where the result arises not from an election, but by operation of statute.").

In re Dougan, No. 07-03524-8JRL, 2009 WL 464997 (Bankr. E.D.N.C. Feb. 23, 2009) (unpublished) (Leonard) (Filing Chapter 13 during 90-day period allowed by North Carolina law for return of execution on a judgment gives debtors opportunity to renew exemption claims notwithstanding prebankruptcy state court determination that debtors waived right to exemptions.).

In re Male, 362 B.R. 238 (Bankr. E.D.N.C. Jan. 25, 2007) (Doub) (Upon reopening, debtors can amend exemptions and avoid judicial lien. Even though no equity existed at petition, under In re McQueen, 196 B.R. 31, 34 (E.D.N.C. 1995), exemption claim was proper.).

In re Male, 362 B.R. 238 (Bankr. E.D.N.C. Jan. 25, 2007) (Doub) (Upon reopening, debtors can avoid judicial lien on homestead; no time bar on § 522(f)(1) avoidance. Laches did not apply since confirmed plan treated claim as unsecured and there is no prejudice to unsecured creditor.).

In re Male, 362 B.R. 238 (Bankr. E.D.N.C. Jan. 25, 2007) (Doub) (Although laches could apply when unreasonable delay prejudiced creditor, there is no statutory time bar for § 522(f)(1) motion to avoid unsecured judicial lien.).

Middle District of North Carolina

In re Gill, No. 11-80976, 2011 WL 4712087 (Bankr. M.D.N.C. Aug. 19, 2011) (Aron) (Debtor was entitled to North Carolina homestead. Debtor had not abandoned home, but had only moved because of mold damage. Debtor intended to sell property after mold removal.).

In re Johnson, No. 11-50326, 2011 WL 2971050 (Bankr. M.D.N.C. July 12, 2011) (Aron) (Lot adjacent to residence was not residence for purposes of North Carolina homestead exemption.).

In re Stanley, No. 09-11720, 2010 WL 2103441 (Bankr. M.D.N.C. May 20, 2010) (unpublished) (Stocks) (North Carolina provision that its exemptions are inapplicable to claims arising from purchase of real estate did not apply because objecting creditor did not extend credit for purchase of real estate upon which mobile home was placed.).

In re Stanley, No. 09-11720, 2010 WL 2103441 (Bankr. M.D.N.C. May 20, 2010) (unpublished) (Stocks) (Debtor can avoid judicial lien to extent it impairs North Carolina wild card exemption; exception under North Carolina statute that exemption was inapplicable to debt for purchase of real estate did not apply because debt subject to lien avoidance was not incurred to purchase real estate upon which mobile home was located.).

In re Stanley, No. 09-11720, 2010 WL 2103441 (Bankr. M.D.N.C. May 20, 2010) (unpublished) (Stocks) (When debtor was one-half owner as tenant in common, judicial lien was partially avoidable under formula in § 522(f)(2)(A). Court applied one-half of total indebtedness on property in formula. Applying full amount of indebtedness would result in windfall to debtor.).

In re Genevicz, No. 09-11993, 2010 WL 1010829, at *2 (Bankr. M.D.N.C. Mar. 15, 2010) (Stocks) (Tenant in common cannot avoid judicial lien when application of § 522(f)(2)(A) formula resulted in no homestead exemption impairment. Citing Wachovia Bank & Trust Co. v. Opperman (In re Opperman), 943 F.2d 441, 444 (4th Cir. Aug. 22, 1991) (Hall, Chapman, Ward), "[o]nly the portion of the lien that actually interferes with a debtor's exemption may be avoided under section 522(f).").

Western District of North Carolina

In re Gaddy, No. 14-40346, 2014 WL 5488441 (Bankr. W.D.N.C. Oct. 22, 2014) (Whitley) (Pickup truck used in debtor's business to transport water tanks did not qualify as a tool of trade under North Carolina law when truck had no special equipment or modifications specific to debtor's use and North Carolina law offers a specific exemption for vehicles.).

In re Mills, No. 10-33732, 2012 WL 1380260 (Bankr. W.D.N.C. Apr. 20, 2012) (Beyer) (Debtor could avoid judicial lien of former spouse on one-half divided interest conveyed by divorce decree, but not lien former spouse obtained contemporaneous with conveying her one-half interest by quitclaim deed subsequent to divorce decree. Applying Farrey v. Sanderfoot, 500 U.S. 291, 111 S. Ct. 1825, 114 L. Ed. 2d 337 (May 23, 1991), debtor did not have vested interest in latter interest before lien was fixed. Prebankruptcy divorce court had equitably divided property, and former spouse then delivered quitclaim deed, obtaining judgment lien to secure payment.).

South Carolina

In re Versace, No. 16-05593-HB, 2017 WL 1501386 (Bankr. D.S.C. Apr. 26, 2017) (Burris) (Debtor can claim homestead exemption under South Carolina law in home in which daughter and granddaughter live notwithstanding that debtor lives in an apartment 20 miles away.).

In re Bauer, No. 13-01562-HB, 2013 WL 2661835 (Bankr. D.S.C. June 13, 2013) (unpublished) (Burris) (Embracing Chilton v. Moser (In re Chilton), 674 F.3d 486 (5th Cir. Mar. 12, 2012) (Benavides, Stewart, Graves), and Doeling v. Nessa (In re Nessa), 426 B.R. 312 (B.A.P. 8th Cir. Apr. 9, 2010) (Schermer, Venters, Saladino), and rejecting In re Clark, 714 F.3d 559 (7th Cir. Apr. 23, 2013) (Easterbrook, Flaum, Williams), inherited IRA is a retirement fund that can be exempt.).

In re Bauer, No. 13-01562-HB, 2013 WL 2661835 (Bankr. D.S.C. June 13, 2013) (unpublished) (Burris) (Debtor living in South Carolina after recent move from Indiana was not eligible for either South Carolina or Indiana exemptions and can claim federal exemptions.).


Eastern District of Virginia

In re Delima, 561 B.R. 660, 661 (Bankr. E.D. Va. Oct. 21, 2016) (Mayer) (Applying Bankruptcy Rule 7041, trustee’s withdrawal of objection to exemptions one day before court entered order denying trustee’s objection did not eliminate the case or controversy commenced by the trustee’s objection. Bankruptcy court overruled trustee’s objection by order entered on September 23. On September 22, trustee requested that the clerk withdraw the objection. “Neither provision [of Federal Rule of Civil Procedure 41(a)(1)(A)] is applicable in this case. Subsection (i) is not applicable because the debtor filed an answer to the objection. Subsection (ii) is not applicable because the trustee’s withdrawal was signed only by himself. The withdrawal did not comply with the provisions of Rule 41(a) and was not effective. Consequently, . . . there was a pending case or controversy.”).

In re Delima, 561 B.R. 647, 650 (Bankr. E.D. Va. Sept. 23, 2016) (Mayer) (1992 amendments to Virginia law clarified that wages otherwise exempt do not lose their exempt status when they are paid and deposited into a commingled checking account. “Commingling cannot . . . destroy the exempt status of wages deposited into a bank account. As long as the exempt wages can be traced, they will remain exempt. For tracing purposes, the ‘first-in, first-out’ method is appropriate.”).

In re Cantu, 553 B.R. 565, 569 (Bankr. E.D. Va. July 14, 2016) (Kenney) (Debtor cannot claim exemption in portion of future income that becomes available when a retirement plan loan is paid—an exemption in future income is inconsistent with the projected disposable income test of § 1325(b) and with property of the estate under § 1306 in a Chapter 13 case. “[A] claim of exemption in post-petition wages is fundamentally inconsistent with the structure of Chapter 13, which requires a debtor to devote all of his or her disposable income to the Chapter 13 Plan, subject only to certain statutory exceptions. . . . [T]he courts have consistently held that income that might be exempt under non-bankruptcy law must be included in the Debtor’s Chapter 13 plan.”), aff'd, 713 F. App'x 200, 203–04 (4th Cir. Dec. 18, 2017) (unpublished) (Diaz, Thacker, Harris).).

In re Walley, 525 B.R. 320 (Bankr. E.D. Va. Feb. 11, 2015) (Phillips) (Citing Carroll v. Logan, 735 F.3d 147 (4th Cir. Oct. 28, 2013) (Niemeyer, Wynn, Floyd), debtor can claim exemption in proceeds from postpetition personal injury action because proceeds became property of the Chapter 13 estate under § 1306 and can be exempted notwithstanding § 522(b)(3)(B).).

In re Bradby, 455 B.R. 476, 483 (Bankr. E.D. Va. Apr. 11, 2011) (Huennekens) (Death of nondebtor spouse during Chapter 13 case did not upset debtor's exemption at the petition in property owned as tenants by entireties. Citing Birney v. Smith (In re Birney), 200 F.3d 225, 229 (4th Cir. Dec. 29, 1999) (Murnaghan, Niemeyer, Traxler), death of spouse did not result in transfer of interest in property to debtor that could be reached by trustee. "When a Debtor holding an interest in property as a tenant by the entirety files a bankruptcy petition, the tenancy and the accompanying rights of survivorship are not destroyed. The entirety interest and the survivorship interest in the property pass to the bankruptcy estate. . . . Absent a claim of exemption, upon the death of the nondebtor tenant, the entirety interest in the property will pass to the trustee of the debtor's bankruptcy estate by survivorship. . . . If the property is claimed as exempt under § 522(b)(3)(B), however, the tenancy by entirety property along with all the accompanying rights—including the right of survivorship—is reclaimed by the debtor and is no longer property of the bankruptcy estate. . . . In that instance, upon the death of the non-debtor spouse, the property maintains its exempted status because § 522(b)(3)(B) provides that the property that is exempt is the interest that the debtor had 'immediately before the commencement of the case.'").

In re Meese, No. 06-10934-SSM, 2007 WL 1029222 (Bankr. E.D. Va. Apr. 2, 2007) (unpublished) (Mitchell) (Lien avoidance unnecessary because creditor with judgment against only husband held no lien against tenancy by entirety property under Virginia law.).

Western District of Virginia

Wharton v. Beneficial, No. 4:10CV00001, 2010 WL 890132 (W.D. Va. Mar. 9, 2010) (Kiser) (Denial of lien avoidance remanded for bankruptcy court to consider Virginia's homestead exemption rules rather than tenancy-by-entirety.).

In re Kern, 576 B.R. 817 (Bankr. W.D. Va. Nov. 29, 2017) (Black) (Debtors living in Virginia but owning property in Virginia and Tennessee who intend to eventually live in Tennessee are nonetheless domiciled in Virginia for exemption purposes.).

E.  Fifth Circuit

Peake v. Ayobami (In re Ayobami), 879 F.3d 152, 154 (5th Cir. Jan. 3, 2018) (Jolly, Smith, Graves) (Narrowly answering certified question: there are situations in which a Chapter 13 debtor can exempt “100% interest” in an assetwhen the value of the debtor’s interest in the asset does not exceed the statutory cap on the exemption. Circuit panel expresses no opinion whether the debtor can use a 100% interest exemption to clear title or to “walk away” with the assets underlying the exemptions. “§ 522(d) limits the value that may be exempted, not the debtor’s interest that may be exempted. On its face, exempting a 100% interest in an asset does not violate any provision of § 522. . . . Of course, there are circumstances where exempting a 100% interest in an asset would not be allowable under § 522, e.g., when the statutory cap is exceeded. But addressing only the certified question before us, we hold that if, when considering any other exemptions claimed, the debtor’s entire interest in an asset is less than or equal to any dollar-value limitation imposed by the applicable § 522(d) subsection, then the debtor may exempt her 100% interest in that asset. . . . Although we do not address the question today, we note that the Supreme Court has found ‘questionable’ whether ‘a claim to exempt the full value of the equipment would, if unopposed, entitle [the debtor] to the equipment itself as opposed to a payment equal to the equipment’s full value[ ]’ . . . .”), certifying question from No. 15-35488, 2016 Wl 3854052, at *4 (Bankr. S.D. Tex. June 9, 2016) (Isgur) (“If a debtor claims an interest in an asset that is measured in dollar value . . . , any increase in value goes to the Estate. . . . If a debtor claims an interest that is measured in a percentage ownership of an asset . . . , any increase in value goes to the debtor.”).

Viegelahn v. Frost (In re Frost), 744 F.3d 384, 385-91 (5th Cir. Mar. 5, 2014) (Stewart, DeMoss, Clement) (Applying Zibman v. Tow (In re Zibman), 268 F.3d 298 (5th Cir. Sept. 28, 2001) (Jolly, Wiener, Smith), Texas homestead was exempt at Chapter 13 petition, but postpetition sale created proceeds that lost exempt status when not reinvested in a homestead within six months. "When Frost filed his bankruptcy petition, his homestead . . . was exempt[ ] from the bankruptcy estate under Texas [law]. Subsequently, he sold the property and used some of the funds for non-bankruptcy expenses. Under Texas law, property owners who sell their homesteads must reinvest the proceeds in another homestead within six months. . . . Frost's reliance on [Schwab v. Reilly, 560 U.S. 770, 130 S. Ct. 2652, 177 L. Ed. 2d 234 (June 17, 2010),] is misplaced. . . . [T]he value of Frost's homestead is immaterial to whether or not he is entitled to an exemption. . . . [I]t is the land itself—not its monetary value—that is protected under Texas law[.]").

Chilton v. Moser (In re Chilton), 674 F.3d 486 (5th Cir. Mar. 12, 2012) (Benavides, Stewart, Graves) (Agreeing with Doeling v. Nessa (In re Nessa), 426 B.R. 312 (B.A.P. 8th Cir. Apr. 9, 2010) (Schermer, Venters, Saladino), inherited IRA was exempt under § 522(d)(12). IRA was retirement fund despite not being directly connected to debtor's retirement. Section 522(d)(12) refers to funds set aside for retirement, and inherited IRA was exempt from taxation under 28 U.S.C. § 408(e).), aff'g, 444 B.R. 548 (E.D. Tex. Mar. 16, 2011) (Clark) (Agreeing with Doeling v. Nessa (In re Nessa), 426 B.R. 312 (B.A.P. 8th Cir. Apr. 9, 2010) (Schermer, Venters, Saladino), inherited IRA account was exempt under § 522(d)(12). Account qualified as retirement fund and was exempt from taxation under I.R.C. § 408(e).), rev'g and remanding 426 B.R. 612 (Bankr. E.D. Tex. Mar. 5, 2010) (Rhoades).).

Villarreal v. Showalter (In re Villarreal), No. 09-40912, 2010 WL 4560630 (5th Cir. Nov. 10, 2010) (unpublished) (Dennis, Owen, Southwick) (The issue is "whether Texas homestead claimants can be equitably estopped from protecting their actual homesteads if they have disclaimed the homestead protection and resided on the property covertly and not openly."), certifying question to Texas Supreme Court 401 B.R. 823 (Bankr. S.D. Tex. Feb. 3, 2009) (Isgur) (Although Texas law permits homestead exemption in portion of business actually used as residence, debtors are equitably estopped from claiming homestead exemption when "Debtors' homestead use of the property was secret and highly ambiguous, [and] their actual use was insufficient to notify a person like [lien claimant] that the property was homestead." Equitable estoppel protects lien claimant who was misled but trustee's objection to homestead exemption is overruled because trustee was not misled by debtors' use of property as residence.).

Nesco Acceptance Corp v. Jay (In re Jay), 432 F.3d 323 (5th Cir. Nov. 22, 2005) (Reavley, Higginbotham, Garza) (Under Texas law, business homestead exemption not valid because retroactive amendment to state Constitution required residential use of business homestead.).

Pequeno v. Schmidt (In re Pequeno), No. 04-40573, 2005 WL 513466 (5th Cir. Mar. 4, 2005) (unpublished) (King, Garza, Benavides) (Debtor does not have exemption in employment discrimination judgment because exemption extends only to compensation for loss of future earnings and debtor made motion in employment discrimination lawsuit to increase jury's award because jury failed to consider lost wages.).


Eastern District of Louisiana

In re Everett, 520 B.R. 498 (E.D. La. Sept. 29, 2014) (Brown) (Citing Clark v. Rameker, ___ U.S. ___, 134 S. Ct. 2242, 189 L. Ed. 2d 157 (June 12, 2014), IRA inherited from debtor's ex-spouse could not be rolled over into debtor's own IRA and she would be forced to take distributions from the inherited IRA even though she was not retirement age. Inherited IRA did not qualify as an individual retirement account under state law for exemption purposes.).

In re McCollum, 363 B.R. 789 (E.D. La. Feb. 22, 2007) (Vance) (Under Louisiana exemption law, debtor could voluntarily sell home postconfirmation and exempt first $25,000 of net proceeds.).

In re Scheuermann, No. 05-13562, 2006 WL 2475311 (Bankr. E.D. La. Aug. 25, 2006) (unpublished) (Magner) (Debtors cannot avoid judgment lien under § 522(f) because after a hearing on valuation, lien does not impair exemption.).

In re McCollum, 348 B.R. 377 (Bankr. E.D. La. Feb. 22, 2006) (Magner) (Homestead exemption cannot be collaterally attacked when debtor moves to sell homestead six months after petition but no one objected to the homestead within the 30-day period in Bankruptcy Rule 4003(b).).

In re Manso, 348 B.R. 74 (Bankr. E.D. La. Feb. 9, 2005) (Brown) (Car used by nonfiling spouse to go to and from work is not an available exemption under Louisiana law.).

Western District of Louisiana

In re Goff, No. 06-20109, 2007 WL 1434895 (Bankr. W.D. La. May 11, 2007) (unpublished) (Summerhays) (Louisiana provides an exemption for a residence within a municipality, including multiple tracts so long as they are contiguous and total no more than five acres.).

In re Savoie, 351 B.R. 392 (Bankr. W.D. La. July 18, 2006) (Schiff) (Applying amended Louisiana exemption law, freightliner truck is not exempt because not physically operated by debtor and cannot qualify as a tool of the trade; debtors are entitled to a single motor vehicle exemption per household.).


Northern District of Mississippi

In re Scott, 531 B.R. 640 (Bankr. N.D. Miss. June 9, 2015) (Olack) (Amendment to exemption schedule was not effective because debtors failed to serve trustee and others as required by Bankruptcy Rule 1009.).

In re Clemons, 441 B.R. 519 (Bankr. N.D. Miss. Aug. 31, 2010) (Olack) (Motorcycle was motor vehicle, available for exemption under Mississippi Code Ann. § 85-3-1(a).).

In re Robertson, No. 08-13590-DWH, 2009 WL 1456453 (Bankr. N.D. Miss. May 22, 2009) (Houston) (Because statutory lien of State Department of Employment Security attaches to exempt property under Mississippi law, lien is unavoidable.).

Southern District of Mississippi

Lentz v. Myers (In re Myers), 486 B.R. 365 (Bankr. S.D. Miss. Feb. 14, 2013) (Ellington) (Exemption of $0.00 in value does not trigger trustee's obligation to timely object under Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S. Ct. 1644, 118 L. Ed. 2d 280 (Apr. 21, 1992), or Schwab v. Reilly, 560 U.S. 770, 130 S. Ct. 2652, 177 L. Ed. 2d 234 (June 17, 2010); any value above $0.00 is not exempt. Substantial evidence of bad-faith conversion from Chapter 13 to Chapter 7 included unrevealed assets and the creation of a successor business using estate property.).

Lentz v. Myers (In re Myers), 486 B.R. 365 (Bankr. S.D. Miss. Feb. 14, 2013) (Ellington) (Exemption of $0.00 value does not trigger trustee's obligation to timely object under Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S. Ct. 1644, 118 L. Ed. 2d 280 (Apr. 21, 1992), or Schwab v. Reilly, 560 U.S. 770, 130 S. Ct. 2652, 177 L. Ed. 2d 234 (June 17, 2010); any value above $0.00 is not exempt. Evidence of bad-faith conversion from Chapter 13 to Chapter 7 included unrevealed sale of business assets, three unscheduled cars, hidden monthly payments from the sale of business and creation of a successor business using estate assets.).


Eastern District of Texas

In re Chilton, 426 B.R. 612, 618, 621 (Bankr. E.D. Tex. Mar. 5, 2010) (Rhoades) (IRA inherited from debtor's mother was not "retirement funds" for purposes of exemption in § 522(d)(12). Under legislative history and plain meaning of "retirement funds," inherited IRA was not intended by Congress to be exempt. Cases interpreting similar state exemptions supported conclusion that inherited IRA did not fit within Internal Revenue Code sections referred to in § 522(d)(12). Bankruptcy Code doesn't define "retirement funds," but "retirement funds . . . cannot reasonably be understood to authorize an exemption of an inherited IRA." Under Internal Revenue Code § 408(d)(3)(C), "beneficiary of an inherited IRA may not treat the inherited account as his or her own IRA by, for example, making contributions to the account or rolling over the account into another retirement plan."), rev'd and remanded by 444 B.R. 548 (E.D. Tex. Mar. 16, 2011) (Clark).).

In re Huie, No. 07-40627, 2007 WL 2317152, at *5 (Bankr. E.D. Tex. Aug. 8, 2007) (unpublished) (Rhoades) (Looking to Texas law, homestead exemption does not shield home from state court judgment lien when debtors "used funds fraudulently obtained from [creditors] to pay a portion of the purchase price of the Home.").

In re Huie, No. 07-40627, 2007 WL 2317152, at *5 (Bankr. E.D. Tex. Aug. 8, 2007) (unpublished) (Rhoades) (Debtors can't avoid part of judgment lien based on state court finding that debtors "used funds fraudulently obtained from [creditors] to pay a portion of the purchase price of the Home." Debtors can avoid lien to extent it secures attorneys' fees awarded by state court, and lien is avoided on personal property claimed as exempt.).

Northern District of Texas

Garcia v. Bassel, 507 B.R. 907 (N.D. Tex. Apr. 2, 2014) (O'Connor) (Citing Viegelahn v. Frost (In re Frost), 744 F.3d 384 (5th Cir. Mar. 5, 2014) (Stewart, DeMoss, Clement), failure to reinvest proceeds from postconfirmation sale of homestead forfeited exempt status under Texas law.).

Garcia v. Bassel, 507 B.R. 907 (N.D. Tex. Apr. 2, 2014) (O'Connor) (Citing Viegelahn v. Frost (In re Frost), 744 F.3d 384 (5th Cir. Mar. 5, 2014) (Stewart, DeMoss, Clement), failure to reinvest proceeds from postconfirmation sale of homestead forfeited exempt status under Texas law.).

In re Haynes, No. 17-701130-hdh13, 2017 WL 7050635 (Bankr. N.D. Tex. Dec. 26, 2017) (Hale) (Interpreting Texas Property Code, joint Chapter 13 debtors are allowed two firearms as exempt property, not four.).

In re Garcia, 499 B.R. 506 (Bankr. N.D. Tex. Sept. 27, 2013) (Nelms) (Failure to reinvest proceeds from postconfirmation sale of homestead forfeited exempt status under Texas law.), aff'd, 507 B.R. 907 (N.D. Tex. Apr. 2, 2014) (O'Connor).).

In re Moore, No. 10-50434-RLJ-13, 2011 WL 6887126 (Bankr. N.D. Tex. Dec. 29, 2011) (Jones) (Judicial lien was avoidable, with state court agreed order entered subsequent to judgment merely outlining repayment, rather than reducing judgment lien to voluntary lien.).

In re Moore, No. 10-50434-RLJ-13, 2011 WL 6887126 (Bankr. N.D. Tex. Dec. 29, 2011) (Jones) (Debtors were not judicially estopped from avoiding judgment lien, when there was no evidence that debtors derived unfair advantage or took inconsistent positions by failing to assert avoidance until after confirmation. Nature of judicial estoppel required it to be timely raised as defense, even though lien avoidance is contested matter by motion, to which Federal Rule of Civil Procedure 8 does not apply; creditor did not raise defense timely.).

In re Salazar, 449 B.R. 890, 897-900 (Bankr. N.D. Tex. Mar. 23, 2011) (Jones) (Bankruptcy court attempts to apply Schwab v. Reilly, 560 U.S. 770, 130 S. Ct. 2652, 177 L. Ed. 2d 234 (June 17, 2010), when Chapter 13 debtors scheduled exemptions as "100% of fair market value (FMV)" and trustee objected. "If the debtor, as in Schwab, claims a specific dollar amount and the value of the property is in fact significantly greater than what is claimed or its value increases significantly during the pendency of the bankruptcy case, the debtor runs the risk of losing the property as the trustee may, in such instances, choose to administer the property to realize its excess value. If, however, the debtor simply asserts, as the Supreme Court predicts, '100% of FMV,' the debtor is stating that regardless the value in-fact at any time, he is asserting such full value as his exempt interest. . . . Schwab's effect is clear if an objection is not timely filed to an exemption claim that raises the flag—by, for example, claiming 'unknown' or '100% of FMV': the debtor effectively reclaims the property. The parties in the cases here present the Court with a circumstance that raises the question of what happens when debtors claim '100% of FMV' and the trustee timely objects to such claim. . . . [T]he Court sets forth the analytical framework for assessing the propriety of the exemption claims made here. First, section 541 of the Bankruptcy Code provides that, upon the filing of a bankruptcy case, an estate is created comprising all legal and equitable interests of the debtor in property. The debtor may exempt from the estate the property that he claims as exempt. See § 522(b). . . . Generally, for a debtor residing in Texas, he may select exemptions allowable under Texas law or the exemptions provided in the Bankruptcy Code. See § 522(b). The federal exemptions are set forth at § 522(d) of the Bankruptcy Code, which provides that, with respect to several of the allowed exemptions, the debtor may exempt an interest, not to exceed a stated amount, in the described property. The Texas exemptions scheme, however, refers not to interest in property but rather to property itself. See Texas Prop.Code § 42.001 & 42.002. Any objection to the debtor's exemptions must be filed within thirty days of the § 341 creditors' meeting. See Fed. R. Bankr.P. 4003(b). If no objection is filed, the debtor's exemptions are reclaimed from the estate. See Taylor, 503 U.S. at 638, 642-43. Schwab instructs debtors and other parties in interest that if a debtor selects the federal exemptions (exempting only an interest in property) and states an amount for the exemption that is within the statutory limitation, such debtor has successfully claimed his exempt interest but has not exempted the property in-kind. The property remains in the estate subject to the trustee's administration and potential disposition. The trustee does not have to object to the exemption because the property itself is not the subject of the exemption and the value of the property is not relevant to the exemption claim. Schwab then predicts that debtors, as a way to make clear their desire to retain the asset in-kind, will state their exemption claim as '100% of FMV.' Accordingly, if no objection is filed, then the debtor's exemption claim stands. But the important distinction to be made, as learned from Schwab, is that the debtor's exemption claim is still limited to his interest in the property. Schwab suggests that title to the property does not pass to the debtor even if no objection is filed. See Schwab, 130 S. Ct. at 2668 n. 21.").

In re Moore, 442 B.R. 865, 867-68 (Bankr. N.D. Tex. Dec. 29, 2010) (Lynn) (Applying Schwab v. Reilly, 560 U.S. 770, 130 S. Ct. 2652, 177 L. Ed. 2d 234 (June 17, 2010), debtor electing federal exemptions under § 522(d) properly claimed "100% of FMV," placing burden on trustee to object to value or amount. "As to the Trustee's suggestion that somehow Debtors, by use of the formula '100% of FMV,' seek to game the system, the court does not agree. The Supreme Court offered direction to debtors seeking to force the issue of whether exemption of an interest in an asset covered the entire asset. Debtors have here done no more than follow the Court's direction. The alternative—to make a claim of exemption clearly inconsistent with the statute . . . —would be far more problematic. Moreover, the process is working just as the Schwab Court presumably expected it to. Debtors claimed their exemptions and clearly established that they intended to remove the entirety of the relevant assets from the estate. Their claims of exemptions, in turn, caused the Trustees to file the Objections, thus putting Debtors to the test of whether the value of the underlying assets is equal to, less than or greater than the value of the interests to which Debtors are entitled." In contrast, Schwab analysis was not applicable to debtors claiming Texas exemptions because Texas law referred to property itself and not to interest in property. Even if debtors did not use "100% of FMV," trustees would be required to object to Texas exemptions within time fixed by Bankruptcy Rule 4003(b)(1), citing Gebhart v. Gaughan, 621 F.3d 1206, 1211 (9th Cir. Sept. 14, 2010) (Tashima, Berzon, Timlin).).

In re Beyer, No. 07-45172-DML-13, 2008 WL 2783515, at *5 (Bankr. N.D. Tex. July 15, 2008) (unpublished) (Lynn) (Lien obtained through judgment in divorce proceeding is a judicial lien as defined in § 101(36) notwithstanding that divorce court classified it as an equitable lien; lien is unavoidable under Farrey v. Sanderfoot, 500 U.S. 291, 111 S. Ct. 1825, 114 L. Ed. 2d 337 (1991), when former community property interest was extinguished by divorce and fee interest was created simultaneously for debtor with judicial lien in favor of former spouse. Lien "cannot have become fixed against the debtor's pre-existing interest.").

In re Williams, No. 05-47644-DML-13, 2007 WL 4522326 (Bankr. N.D. Tex. Dec. 19, 2007) (unpublished) (Lynn) (Debtor cannot amend homestead exemption from federal to state basis after confirmation; when debtor originally claimed homestead exemption under § 522(d)(1), postconfirmation motion to change to Texas homestead is denied. Debtor is bound by confirmation and issues that could have been raised at that time. Right to amend schedules does not include right to change basis for homestead.).

Southern District of Texas

In re Kleb, Nos. H-07-2279, H-07-2878, 2008 WL 243669 (S.D. Tex. Jan. 29, 2008) (unpublished) (Rosenthal) (Judgment lien cannot attach to homestead interest under Texas law.), aff'g, No. 06-36674-H3-13, 2007 WL 1760925 (Bankr. S.D. Tex. June 19, 2007) (Debtor had valid homestead exemption and could avoid judicial lien that impaired homestead.).

In re Ayobami, No. 15-35488, 2016 WL 3708761, at *2 (Bankr. S.D. Tex. July 1, 2016) (Isgur) (Certification for direct appeal to the Fifth Circuit of this question: “May a debtor claiming federal exemptions under § 522 of the Bankruptcy Code ever exempt a 100% interest in an asset?”).

In re Ayobami, No. 15-35488, 2016 WL 828743, at *4-*7 (Bankr. S.D. Tex. Mar. 2, 2016) (Isgur) (Interpreting Official Form 106C in light of Schwab v. Reilly, 560 U.S. 770, 130 S. Ct. 2652, 177 L. Ed. 2d 234 (June 17, 2010), exemption claim of 100% of fair market value removes property from the estate unless party in interest objects and proves that value exceeds available exemption; future appreciation or mistakes in valuation belong to the debtor in the absence of timely objection. "Official Form 106C . . . does not always accomplish the clarity required by Schwab. . . . [The debtor] utilized the 100% of fair market value exemption on her real property . . . . [The debtor] is claiming her bare ownership interest in the home—an interest with no Current Value available to the Estate—as exempt. . . . The Trustee is free to challenge [the debtor's] assertion of the Current Value of the Riverpark property. If he fails to do so, then the entirety of the Riverpark property will be exempted from the Estate. . . . If the valuation overstates the value of the asset, the debtor will receive less and may not redo the exemptions at a later date based on the valuation error. If the valuation understates the value of the asset, the debtor will receive an amount that exceeds the valuation, and may receive more than the statutory limit.").

In re Bratcher, No. 08-36225, 2013 WL 5309549, at *2 (Bankr. S.D. Tex. Sept. 19, 2013) (Isgur) (Absent evidence of bad faith, failure to amend Schedules B and C did not estop debtor from amending exemptions to claim portion of postconfirmation personal injury settlement. Citing Waldron v. Brown (In re Waldron), 536 F.3d 1239 (11th Cir. Aug. 4, 2008) (Pryor, Edmondson, Johnson, D.J.), "there is no explicit provision in the Bankruptcy Code or Rules that requires [debtor] to disclose postpetition assets on these schedules. . . . [T]here is no duty to disclose postconfirmation assets: 'We do not hold that a debtor has a freestanding duty to disclose the acquisition of any property interest after the confirmation of his plan under Chapter 13. Neither the Bankruptcy Code nor the Bankruptcy Rules mention such a duty.'").

In re McDonald, 486 B.R. 843 (Bankr. S.D. Tex. Feb. 22, 2013) (Isgur) (Although debtor was currently employed in Louisiana, evidence supported intent to return to and occupy Texas homestead, which had not been abandoned.).

In re Hill, No. 08-36267, 2011 WL 6936357 (Bankr. S.D. Tex. Dec. 30, 2011) (Bohm) (Debtor was not judicially estopped from claiming Texas homestead exemption in insurance proceeds from hurricane damage, despite nondisclosure of prepetition cause of action against insurance carrier until after filing motion for settlement approval; unsophisticated debtor had acted inadvertently, not in bad faith, in failing to initially schedule claim, with Fifth Circuit authority giving benefit of doubt with respect to homestead exemption, citing State Farm Life Insurance Co. v. Swift (In re Swift), 129 F.3d 792 (5th Cir. Dec. 8, 1997) (Wisdom, Jolly, Garza). Creditors had not been prejudiced by untimely disclosure of insurance claim, and Texas homestead exemption laws had been extended to insurance proceeds. Mortgage creditor's lien extended to insurance proceeds, which must be used for home repair and arrearage.).

In re Okwonna-Felix, No. 10-31663-H4-13, 2011 WL 3421561 (Bankr. S.D. Tex. Aug. 3, 2011) (Bohm) (Construing Stern v. Marshall, __ U.S. __, 131 S. Ct. 2594, 180 L. Ed. 2d 475 (June 23, 2011), bankruptcy exemptions are public rights, over which bankruptcy court has subject matter jurisdiction, including approval of settlement of state court litigation affecting exemption of insurance proceeds from hurricane damage to home. Although exempt, deed of trust gave secured lender lien on insurance proceeds, requiring that proceeds be used for repairs.).

In re Mills, No. 10-80766-G3-13, 2011 WL 1810487 (Bankr. S.D. Tex. May 11, 2011) (Paul) (Under Texas law, debtor's sale of portion of homestead did not forfeit exemption because six-month period for reinvesting sale proceeds did not commence until receipt of installment due under note.).

In re Brooks, 415 B.R. 287 (Bankr. S.D. Tex. Apr. 24, 2009) (Isgur) (Exemption in insurance proceeds for home repairs paid to debtor before petition continues to apply to balance of proceeds in checking account at bankruptcy filing.).

In re Solly, 392 B.R. 692 (Bankr. S.D. Tex. Aug. 7, 2008) (Bohm) (Debtor claiming exemption under § 522(d)(5) is not permitted to value malpractice action as "unknown" and must amend to state specific value; exemption will be percentage of $11,200 statutory cap, based on value at petition date. "Thus, hypothetically, if a court values the potential lawsuit at $100,000 and a debtor exempts up to $11,200 under § 522(d)(5), then the debtor holds an 11.2% exemptible interest in the lawsuit. This interest would entitle the debtor to exempt 11.2% of any damages recovered. Therefore, in the above hypothetical, if the damages eventually awarded are $1,000,000, then the debtor would receive $112,000 (i.e., 11.2% of $1,000,000). The remaining amount ($888,000) would belong to the debtor's estate. The fact that a lawsuit might actually bring in more money than the value of the lawsuit determined by the court is an unavoidable possibility; however, the claim may also bring in less or nothing at all.").

In re Bienz, No. 05-36632-H3-13, 2008 WL 2325626, at *2 (Bankr. S.D. Tex. June 3, 2008) (unpublished) (Letitia Clark) (Motion to approve settlement of personal injury action was unnecessary when debtors claimed exemption in proceeds and no one objected, even if proceeds exceed § 522(d)(11)(D) exemption; "failure of any party in interest to object to the exemption of the personal injury suit results in allowance of the exemption as to the entirety of Debtors' recovery.").

Cadengo v. Consolidated Fund Mgmt., LLC (In re Cadengo), 370 B.R. 681 (Bankr. S.D. Tex. June 27, 2007) (Bohm) (Lien on homestead is invalidated when home equity loan was made in violation of Texas law. Defendants could not rely on homestead waiver in home equity loan.).

In re Kleb, No. 06-36674-H3-13, 2007 WL 1760925 (Bankr. S.D. Tex. June 19, 2007) (unpublished) (Letitia Clark) (Construing Tex. Prop. Code § 41.002(b)(2), debtor's testimony of intent to claim homestead and part-time use of property constitute acts of homestead use. Though debtor did not currently reside on rural property, he had no other homestead and used property with intent to make it his homestead.).

In re Gandy, 327 B.R. 807 (Bankr. S.D. Tex. July 29, 2005) (Isgur) (To claim homestead exemption under federal statute, § 522(d)(1), debtor must actually occupy property as residence prior to bankruptcy filing. Debtor's intent to use property as residence in the future does not satisfy § 522(d)(1) unambiguous requirement of actual occupancy.).

In re Gandy, 327 B.R. 807 (Bankr. S.D. Tex. July 29, 2005) (Isgur) (Homestead exemption under federal law requires actual use as residence—intended future use as homestead forfeits federal exemption; had debtor claimed exemption under state law, it would have been allowed, since Texas liberally allows exemption in property intended to be used as homestead in near future.).

In re Fonke, 321 B.R. 199, 204, 206 (Bankr. S.D. Tex. Feb. 1, 2005) (Isgur) (The period of time to object to a debtor's exemptions expires 30 days after the meeting of creditors, and conversion to Chapter 7 does not extend or renew this period. Under § 522, the debtor may exempt property by filing the appropriate list. "At [such] time, the property is still considered property of the estate. The property may then only become exempt" if no party objects to the elected exemptions. Pursuant to § 522(c), once property is exempted, the property shall not be liable during or after the case for any debt of the debtor unless the case is dismissed. "Based on the plain reading of § 522(c), the property that was previously exempted in the case cannot be subject to liability for prepetition debts unless the case is dismissed." Accordingly, the Chapter 7 trustee is not afforded a new period of time in which to object to the debtor's exemptions when the Chapter 13 trustee, and other parties in interest, failed to object to the debtor's elected exemptions within 30 days of the conclusion of the debtor's original meeting of creditors.).

Western District of Texas

In re Clark, No. 17-51130-CAG, 2017 WL 5505135 (Bankr. W.D. Tex. Nov. 13, 2017) (Gargottta) (Baseball cards and NASCAR collectibles are not “home furnishings” for purposes of Texas exemption law.).

In re Clark, No. 17-51130-CAG, 2017 WL 5505135 (Bankr. W.D. Tex. Nov. 13, 2017) (Gargotta) (Claims of exemptions to which no objections were filed in prior, dismissed Chapter 13 cases and in prior Chapter 7 case in which debtors received a discharge are not preclusively allowed in subsequent Chapter 13 case. Chapter 13 trustee in current Chapter 13 case successfully objected to exemptions in baseball cards and NASCAR collectibles notwithstanding that similar exemptions in prior cases were allowed without objection.).

In re Rieves, No. 11-61125-CAG, 2012 WL 2952173 (Bankr. W.D. Tex. July 18, 2012) (Gargotta) (Applying Farrey v. Sanderfoot, 500 U.S. 291, 111 S. Ct. 1825, 114 L. Ed. 2d 337 (May 23, 1991), judicial lien of former spouse was avoidable as to 10-acre tract in which debtor had interest prior to lien's attachment; interest in 3.1-acre tract awarded to debtor in divorce decree was not fixed prior to lien's attachment and that lien was not avoidable.).

Langehennig v. Ameriquest Mortgage Co. (In re Ortegon), 398 B.R. 431 (Bankr. W.D. Tex. Nov. 25, 2008) (Gargotta) (Four-year statute of limitations barred adversary proceeding against mortgagee alleging violation of Texas Constitutional limitation on home equity loans impairing homesteads.).

In re Rector, No. 07-11494-CAG, 2008 WL 394202, at *4 (Bankr. W.D. Tex. Feb. 11, 2008) (unpublished) (Gargotta) (Scheduling creditor as lienholder does not have preclusive effect on lien avoidance. Under § 522(f), debtor may only avoid lien to extent it impairs exemption. Statements, schedules and other pleadings admitting existence of lien are not inconsistent with lien avoidance. "In other words, the Debtor may only avoid 'a lien' and only to the extent that 'such a lien impairs an exemption.' Thus, there must be a lien, which presumably must be valid in order to impair an exemption of the Debtor.").

In re Bading, 376 B.R. 143 (Bankr. W.D. Tex. Sept. 22, 2007) (Leif Clark) (Homestead exemption applied to two tracts of land and sale proceeds from both were exempt when a creditor's interference prevented debtor from reinstating proceeds within six-month period established by Texas Property Code § 41.001(c).).

In re Zavala, 366 B.R. 643 (Bankr. W.D. Tex. Apr. 11, 2007) (McGuire) (Exemptions claimed under Texas law are determined as of date of petition; when debtor sold homestead and did not reinvest in new homestead within six months, exemption is lost.).

In re Battle, 366 B.R. 635, 636 (Bankr. W.D. Tex. Dec. 12, 2006) (Chapter 13 debtor residing in Texas who lived in more than one state during 730 days preceding bankruptcy filing must claim exemptions under Florida law when debtor was domiciled in Florida for greater part of 180 days prior to 730 days before petition; the debtor can claim federal exemptions under Florida law because Florida is opt-out state only with respect to "residents" of Florida. "Although BAPCPA mandates the application of Florida law for purposes of ruling on the Debtor's exemptions, it is that law as applied to the facts as of the commencement of the case that ultimately determines which exemptions the Debtor may claim. On the date that the Debtor filed her bankruptcy petition, she did not live in Florida; she lived in Texas. She was therefore not a Florida resident on the filing date. The Florida opt-out statute, itself made applicable to this Debtor by sections 522(b)(2) and 522(b)(3)(A), states that 'residents of this state shall not be entitled to the federal exemptions.' . . . By its own terms, therefore, the opt-out applies only to Florida residents. Because this Debtor was not a resident of Florida on the filing date, the Florida opt-out statute does not bar this Debtor from claiming federal exemptions.").

F.  Sixth Circuit

Ingram v. JP Morgan Chase Bank (In re Ingram), No. 09-8027, 2010 WL 321599, at *2 (B.A.P. 6th Cir. Jan. 28, 2010) (unpublished) (Boswell, Fulton, McIvor) (Because mortgage is a consensual lien, it is not a judicial lien and cannot be avoided under § 522(f); "a mortgage is not converted into a judicial lien by virtue of a foreclosure.").

Raynard v. Rogers (In re Raynard), 354 B.R. 834 (B.A.P. 6th Cir. Oct. 25, 2006) (Aug, Latta, Scott) (Because entireties property is exempt from claims of individual creditors under Michigan law, bankruptcy court erred in denying confirmation and dismissing Chapter 13 case when plan proposed to treat joint creditors more favorably than individual creditors.).


Eastern District of Kentucky

In re Sizemore, No. 09-61-64, 2013 WL 6328260, at *4 (Bankr. E.D. Ky. Dec. 5, 2013) (Schaaf) (Life insurance proceeds received upon postconfirmation death of ex-husband could be exempt under § 522(d)(11)(E) only to extent husband was liable for payments under plan. No exemption available under § 522(d)(10)(E) because life insurance "is generally not . . . a substitute for wages.").

Spradlin v. Breeding (In re Breeding), Nos. 05-17007, 07-1014, 2007 WL 3118772, at *3 (Bankr. E.D. Ky. Oct. 24, 2007) (unpublished) (Scott) (Bankruptcy Rule 4003(b) does not prevent recovery of assets claimed exempt when "debtor mischaracterized the property claimed as exempt as workers compensation and permanent disability when in fact the property was a settlement for negligence/personal injury.").

Western District of Kentucky

In re Beck, 471 B.R. 187 (Bankr. W.D. Ky. May 24, 2012) (Lloyd) (Debtors not entitled to homestead exemption on acreage across road from residential property.).

In re Grimes, 376 B.R. 811 (Bankr. W.D. Ky. Oct. 17, 2007) (Lloyd) (Motion to avoid judgment lien is denied because of equity in property; applying Lane v. Western Interstate Bankcorp (In re Lane), 280 F.3d 663 (6th Cir. 2002), only a wholly unsecured junior mortgage is subject to avoidance and is not protected by § 1322(b)(2).).

In re Edmunds, 373 B.R. 5 (Bankr. W.D. Ky. Aug. 31, 2007) (Lloyd) (Motion to avoid judgment lien under § 522(f) is denied under Lane v. Western Interstate Bancorp (In re Lane), 280 F.3d 663 (6th Cir. Feb. 7, 2002) (Nelson, Daughtrey, Moore), because lien is protected from modification by § 1322(b)(2). Court does not address that § 1322(b)(2) only protects "security interests," which does not include a judgment lien.).

In re Wilson, 338 B.R. 315 (Bankr. W.D. Ky. Feb. 6, 2006) (Cooper) (Applying Kentucky law, debtors not entitled to homestead exemption in real property that is not their permanent residence and that was not claimed exempt in prior bankruptcy cases.).

In re Trobaugh, 330 B.R. 559 (Bankr. W.D. Ky. Sept. 12, 2005) (Cooper) (Consensual lien given by debtors in return for bank's forbearance of foreclosure on other collateral is not judicial lien and cannot be avoided.).


Eastern District of Michigan

In re Sutter, No. 08-cv-11174, 2008 WL 4378100, at *3 (E.D. Mich. Sept. 23, 2008) (unpublished) (Taylor) (Although mortgage is void for lack of valid signature, remand is necessary for bankruptcy court to determine whether equitable mortgage exists. If no equitable mortgage exists, "then the court could determine that the transfer was involuntary and the bankruptcy court should have granted the homestead exemption" claimed by debtors under § 522(g).), aff'd, 665 F.3d 722 (6th Cir. Jan. 3, 2012) (Batchelder, Siler, Cole).).

In re Sharkey, 560 B.R. 470 (Bankr. E.D. Mich. Oct. 21, 2016) (Tucker) (Objection to exemptions was timely filed within 30 days of conclusion of meeting of creditors after conversion from Chapter 13 to Chapter 7 under Bankruptcy Rule 4003; debtor proved excusable neglect for failure to timely respond to the objection, given conversion and attendant “confusion.” “[B]ecause of the conversion of this case from Chapter 7 to Chapter 13 . . . a new deadline arose for any party in interest to object to the Debtors’ claimed exemptions. Consistent with the wording of Fed. R. Bankr. P. 4003(b)(1), that deadline was 30 days after the conclusion of the § 341 meeting of creditors in the Chapter 13 case, or 30 days after the Debtors filed ‘any amendment’ to their claimed exemptions, whichever date is later. . . . The Chapter 13 Trustee concluded the § 341 meeting of creditors on August 2, 2016, . . . so the 30day deadline after that date was September 1, 2016. Thus, the Creditor had until at least September 1, 2016[,] to file its objection to the Debtors’ claimed exemptions. The Creditor filed its objection at issue on July 25, 2016, so the objection was timely.”).

Wahrman v. Bajas (In re Bajas), 443 B.R. 768 (Bankr. E.D. Mich. Mar. 10, 2011) (Tucker) (When confirmed plan surrendered property, prepetition judgment lien was retained and lienholder had relief from automatic stay.).


Northern District of Ohio

In re Karn, No. 13-62446, 2014 WL 3844829 (Bankr. N.D. Ohio Aug. 4, 2014) (unpublished) (Kendig) (Withdrawal and commingling of exempt IRA funds in bank account of debtors' sole proprietorship did not destroy exemption in remaining funds under Ohio law when funds were reasonably traceable and used in a manner reasonably certain to benefit the debtors in retirement. Balance of funds could be reinvested in another exempt IRA.).

In re Pursley, No. 13-61707, 2014 WL 293557, at *4-*6 (Bankr. N.D. Ohio Jan. 23, 2014) (Kendig) (Section 522(c) preempts Ohio "uncodified law" that purports to restrict homestead exemption to claims accrued on or after effective date of statutory increase in exemption. Ohio increased homestead exemption in 2012. Debtors filed Chapter 13 after effective date of new law, claiming increased homestead exemption. Trustee objected that amended homestead exemption was not intended to impair creditors existing prior to effective date of increase. "[Section] 522(c) establishes the post-bankruptcy relationships between exempt property and debts that arose before the commencement of the bankruptcy case . . . [, and] the value of Debtor's homestead exemption is immunized from debts that arose before the commencement of the case. . . . States may define the nature and amount of their exemptions as allowed by § 522(b), but the other portions of § 522, except for § 522(d), remain applicable.").

In re Gee, No. 13-61483, 2014 WL 172334, at *3 (Bankr. N.D. Ohio Jan. 14, 2014) (unpublished) (Kendig) (Distinguishing Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S. Ct. 1644, 118 L. Ed. 2d 280 (Apr. 21, 1992), objection to confirmation can be "proxy for a formal objection to an exemption. . . . [A] formal objection to exemption is not the only procedural mechanism for raising an objection to an exemption.").

In re O'Guinn, No. 07-30271, 2009 WL 2132619 (Bankr. N.D. Ohio July 13, 2009) (Whipple) (At conversion from Chapter 13 to Chapter 7, date of original filing determines applicable exemption law under § 348(a) and § 522(b)(1); although Ohio increased its exemptions after filing, debtor's exemptions were determined under prior law.).

In re Jaber, 406 B.R. 756 (Bankr. N.D. Ohio May 22, 2009) (Morgenstern-Clarren) (Judgment lien not avoidable when lien attached to property before transfer to codebtor and transferee took property encumbered by creditor’s lien.).


Middle District of Tennessee

In re Chaudury, 581 B.R. 279, 285–89 (Bankr. M.D. Tenn. Feb. 1, 2018) (Mashburn) (Sixty-day “rollover rule” in § 522(b)(4) permits Chapter 13 debtor to withdraw several hundred thousand dollars from a qualified IRA that contains nearly $700,000, use the withdrawn funds to buy a house, and then return most of the funds to the IRA within 60 days by mortgaging the houseall without forfeiting the debtor’s unlimited exemption in the IRA. In March 2016 debtor withdrew $327,978.13 from a qualified IRA and used the withdrawn funds to purchase a house jointly with his spouse. A week later the debtor borrowed $250,000 secured by a mortgage on the house and used the funds to repay a portion of the amount taken from the IRA. Less than three months later the debtor filed a Chapter 7 case that was converted to Chapter 13. “Section 522(b)(3)(C) provides exemption rights in retirement funds for debtors in opt-out states. . . . Section 522(b)(4) of the Bankruptcy Code directs how exemption law applies when there is a ‘rollover distribution’ where the owner of an IRA receives a distribution and then places the money in a new IRA or returns the money to the old IRA within 60 days. . . . The statute provides that if there is a distribution ‘from a fund or account that is exempt’ that is then ‘deposited in such a fund or account’ within 60 days of the withdrawal, the money does not lose its exempt status. . . . It is undisputed that the Debtor put the money from the IRA distribution into the purchase of a house and that he subsequentlybut within 60 daysplaced money borrowed from the bank from a home mortgage back into the IRA. . . . The 60day rule would be largely superfluous if it did not permit the account owner to receive the money and use it within the 60day period without destroying the character of the IRA’s exempt nature. . . . [U]sing the money for interim funding for the purchase of a house before the home mortgage was put in place did not destroy the exempt status of the Debtor’s IRA.”).

In re Staggs, 381 B.R. 230 (Bankr. M.D. Tenn. Jan. 16, 2008) (Paine) (Applying Tennessee's new homestead exemption, Tenn.Code Ann. § 26-2-301(f) (2007), joint debtors—each with custody of the parties' minor child and an ownership interest in a home—are both entitled to the $25,000 homestead exemption—a $50,000 homestead exemption for the couple.).).

G.  Seventh Circuit

Loventhal v. Edelson, 844 F.3d 662 (7th Cir. Dec. 21, 2016) (Posner, Kanne, Sykes) (Applying Illinois Joint Tenancy Act, transfer by husband and wife of tenancy by the entirety before Chapter 13 petition did not disturb the tenancy by the entirety.).

In re Willett, 544 F.3d 787 (7th Cir. Sept. 12, 2008) (Manion, Rovner, Evans) (For § 522(f ) purposes, debtors' interest in property includes fee simple acquired after petition; under § 541(a)(7) and § 1306(a)(1), postpetition acquisition of fee simple interest became property of estate and that larger interest must be included to determine whether lien impairs exemption.).


Central District of Illinois

In re Bono, No. 12-72070, 2013 WL 1136905 (Bankr. C.D. Ill. Mar. 19, 2013) (Fines) (Formula for judicial lien avoidance: value property, then deduct unavoidable liens, then deduct homestead exemption. Negative result avoided lien entirely, but lien was not avoided to extent of positive result.).

In re Zapata, No. 07-82603, 2008 WL 2676368, at *2 (Bankr. C.D. Ill. June 26, 2008) (unpublished) (Perkins) (To apply § 522(f) when debtor is co-owner of property with a non-debtor "the better application of the impairment formula is to take the value of the entire property and deduct the mortgage which results in a joint equity figure. The debtor's interest is then determined as half of the joint equity amount. The debtor's individual exemption entitlement is then deducted from his half of the equity to yield a net equity amount, which, if a positive amount, is the extent that the lien is unavoidable.").

Northern District of Illinois

In re Yotis, 518 B.R. 481 (Bankr. N.D. Ill. Sept. 30, 2014) (Schmetterer) (Judgment lien against filing spouse (only) does not attach to debtor's interest in real property held as tenancy by the entirety with nonfiling spouse; however, lien could attach to future interests debtor might acquire in the property that would not be avoided because those interests are not exempt under state law.).

In re Pavlovic, 474 B.R. 601 (Bankr. N.D. Ill. July 10, 2012) (Schmetterer) (County Government waived sovereign immunity under § 106(a) and its judicial lien was avoidable—despite potential nondischargeability of underlying judgment for fine related to building code violations.).

In re Veal, No. 08 B 35319, 2011 WL 5240291 (Bankr. N.D. Ill. Nov. 1, 2011) (Hollis) (Trustee did not object to Illinois wild card exemption claim in $5,000 punitive damages from willful stay violation; motion to modify confirmed plan to distribute $5,000 to unsecured creditors was not timely exemption objection. After deducting exemption, balance was property of estate, subject to distribution to unsecured creditors.).

McAuley-Galassini v. Galassini (In re McAuley-Galassini), No. 11 A 1471, 2011 WL 4964199 (Bankr. N.D. Ill. Oct. 18, 2011) (Hollis) (Complaint to avoid ex-spouse's judicial lien on residence fails because debtor did not allege fixed interest in property prior to attachment of judgment lien.).

In re Anderson, No. 09 B 12312, 2010 WL 322167, at *2 (Bankr. N.D. Ill. Jan. 25, 2010) (Hollis) (Deficiency judgment from foreclosure on previously owned property that became a lien on current homestead impairs exemption and is avoided notwithstanding its priority over mortgage; exception to lien avoidance in § 522(f)(2)(C) for judgment arising out of mortgage foreclosure does not apply to mortgage deficiency judgments, which "by their nature and operation, are sufficiently distinct from mortgage foreclosure proceedings to be outside the purview of Section 522(f)(2)(C).").

In re Anderson, No. 09 B 12312, 2010 WL 322167, at *2 (Bankr. N.D. Ill. Jan. 25, 2010) (Hollis) (Section 522(f)(2)(C) exception to lien avoidance for judgment arising out of mortgage foreclosure does not apply to mortgage deficiency judgments, which "by their nature and operation, are sufficiently distinct from mortgage foreclosure proceedings to be outside the purview of Section 522(f)(2)(C)"; deficiency judgment lien impaired exemption and was avoided notwithstanding consensual mortgage on current homestead.).

In re Royal, 397 B.R. 88 (Bankr. N.D. Ill. Nov. 7, 2008) (Hollis) (Earned income tax credit is exempt property under Illinois law.).

In re Royal, 397 B.R. 88 (Bankr. N.D. Ill. Nov. 7, 2008) (Hollis) (Perhaps in dicta, "an earned income tax credit is a 'public assistance benefit' and consequently is exempt under Illinois law.").

Southern District of Illinois

In re Schroeder, No. 07-41472, 2008 WL 2345114, at *2 (Bankr. S.D. Ill. June 5, 2008) (unpublished) (Altenberger) (That debtors no longer have possession of some household goods is not a barrier to lien avoidance under § 522(f). "§ 522(f)(3) . . . does not condition the right to avoid a lien by requiring the Debtors to be in compliance with the terms of the security agreement.").

In re Taylor, No. 07-60500, 2008 WL 1805384 (Bankr. S.D. Ill. Apr. 18, 2008) (unpublished) (Meyers) (Debtors in business of breeding snakes for sale did not persuade court that Illinois exemption for tools of trade reached snakes, in part because snake business had not become income producing.).

In re McCallister, No. 07-32127, 2008 WL 515508 (Bankr. S.D. Ill. Feb. 22, 2008) (unpublished) (Pepper) (Under Illinois law, debtor is entitled to exempt $295 security deposit for leased residence because tenant under leasehold may benefit from homestead exemption.).


Northern District of Indiana

In re Cunningham, 478 B.R. 346 (Bankr. N.D. Ind. Aug. 14, 2012) (Klingeberger) (Contractor's lien was statutory and not subject to avoidance.).

Southern District of Indiana

In re Porter, No. 12-10179-RLM-13, 2013 WL 1702411 (Bankr. S.D. Ind. Apr. 19, 2013) (Moberly) (Writ of execution obtained by assignee of structured settlement was not avoidable judgment lien. Structured settlement of personal injury was funded by annuity that debtor had completely transferred 15 years before bankruptcy.).


Eastern District of Wisconsin

In re Sternat, 556 B.R. 394 (Bankr. E.D. Wis. Aug. 5, 2016) (Halfenger) (Distinguishing Farrey v. Sanderfoot, 500 U.S. 291, 111 S. Ct. 1825, 114 L. Ed. 2d 337 (May 23, 1991), debtor can avoid judgment lien under § 522(f)(1) when debtor was sole owner of homestead when former spouse’s divorce lien attached.).

In re Olsen, 322 B.R. 400 (Bankr. E.D. Wis. Mar. 10, 2005) (Kelley) (Lienholder can challenge exemption in objection to lien avoidance because objection was filed and heard within the time frame for objecting to exemptions under Bankruptcy Rule 4003(b). Debtors apparently filed motion to avoid judicial liens on real property before filing statements and schedules. When a lienholder objected to a lien avoidance, the debtor then filed their schedule of exempt property. At the hearing on the motion to avoid lien—which was held within the period for objecting to exemptions under Bankruptcy Rule 4003(b)—the lienholder argued that the property subject to its lien was not available as a homestead exemption. Bankruptcy court found that the objection to the exemption in the form of an objection to the motion to avoid lien was timely.).

In re Olsen, 322 B.R. 400 (Bankr. E.D. Wis. Mar. 10, 2005) (Kelley) (Because at the Chapter 13 petition date, the debtors had accepted an offer to sell their home without two acres that were subject to a judgment lien, the two acres were no longer homestead property and were not available for homestead exemption, and the debtors could not use § 522(f) to avoid a judgment lien on the two acres.).

H.  Eighth Circuit

Bugg v. Gray (In re Gray), No. 15-1345, 2016 WL 1696793, at *1 (8th Cir. Apr. 28, 2016) (unpublished) (Smith, Colloton, Shepherd) (Eviction after the petition did not violate stay because stay expired automatically under § 362(e) when bankruptcy court did not act timely. "[A]fter the Buggs moved for relief from the automatic stay, the bankruptcy court did not comply with the statutorily mandated time frames set forth in 11 U.S.C. § 362(e) . . . . [T]he automatic stay was terminated as to the residence by operation of law upon the section 362(e) violation.").

Hardy v. Fink (In re Hardy), 787 F.3d 1189, 1193-97 (8th Cir. June 2, 2015) (Loken, Murphy, Melloy) ("Additional Child Tax Credit" is "public assistance benefit" for purposes of Missouri exemptions. "ACTC is a 'public assistance benefit' that is exempt from the bankruptcy estate. . . . As evidenced by the various amendments to the initial CTC and the accompanying legislators' comments about those changes, the intent of the legislature when modifying the ACTC was to benefit low-income families. . . . These modifications demonstrate Congress intended to benefit the needy with the ACTC. Accordingly, . . . the ACTC meets the Missouri exemption requirement of a public assistance benefit."), rev'g 503 B.R. 722 (B.A.P. 8th Cir. Dec. 23, 2013) (Saladino, Nail, Shodeen), aff'g 495 B.R. 440 (Bankr. W.D. Mo. May 16, 2013 (Norton) (Child tax credits were not exempt public assistance benefits under Missouri statute.).

Abdul-Rahim v. LaBarge (In re Abdul-Rahim), 720 F.3d 710 (8th Cir. July 12, 2013) (Wollman, Beam, Murphy) (Missouri debtor cannot exempt unliquidated personal injury claim because there is no Missouri statute creating that exemption—notwithstanding that Missouri courts have long held that personal injury claims are exempt from attachment.), aff'g 477 B.R. 747 (B.A.P. 8th Cir. 2012) (Kressel, Federman, Nail) (Missouri law does not support exemption in unliquidated personal injury claim.), aff'g 472 B.R. 904 (Bankr. E.D. Mo. May 18, 2012) (Surratt-States).).

Hardy v. Fink (In re Hardy), 503 B.R. 722 (B.A.P. 8th Cir. Dec. 23, 2013) (Saladino, Nail, Shodeen) (Child Tax Credit portion of income tax refund was not a "public assistance benefit" for purposes of Missouri exemption law.), rev'd, 787 F.3d 1189 (8th Cir. June 2, 2015) (Loken, Murphy, Melloy).).

Cleaver v. Warford (In re Cleaver), 407 B.R. 354 (B.A.P. 8th Cir. June 11, 2009) (Kressel, Mahoney, Venters) (Exemption in truck under Iowa law can support lien avoidance under § 522(f)(1)(B)(ii) "tools of the trade" notwithstanding that Iowa does not allow truck to be a tool of the trade. "Although Iowa has opted out of the federal exemption scheme, the opt-out only pertains to the specific menu of exemptions to which a debtor is entitled. The Iowa Supreme Court's rulings on the exemption statutes' usage of the term 'tools of the trade' control for the purpose of determining Iowa debtors' allowable exemptions. However, lien avoidance is a federal remedy to be interpreted by the federal courts. . . . The fact that an exemption claimed by debtors is in property that is not considered a 'tool of the trade' under state law is irrelevant to the issue of whether the lien can be avoided. . . . The plain language of the statute requires the application of federal bankruptcy law to determine whether a lien may be avoided . . . . [W]e conclude that the language of the statute, 'exemption to which the debtor would have been entitled under subsection (b),' does not require the exemption to be a 'tool of the trade' exemption specifically, but rather any exemption under subsection (b) to which the debtor would have been entitled.").


Eastern District of Arkansas

Arkansas Dep’t of Workforce Servs. v. Leaks, No. 5:16CV00267 JLH, 2017 WL 2577546, at *3 (E.D. Ark. June 14, 2017) (Holmes) (Under Arkansas law, lien for overpayment of unemployment benefits is a judicial lien, not a statutory lien, and is avoidable under § 522(f). “Although the process by which the Department determines an overpayment is not a judicial process, it is a quasi-judicial, administrative process . . . resulting in a judicial lien. . . . While it may seem unfair that federal law requires the Department to afford due process before issuing a certificate of overpayment but then allows the overpayment to be avoided in bankruptcy because due process has been afforded, that is an issue to present to Congress. . . . [A] person in Leaks’s position is entitled to due process rights before the Department may collect an overpayment, and when the Department grants those rights the lien obtained thereby is obtained through a process that makes the lien a judicial lien.”).

In re Ellis, 456 B.R. 401, 405 (Bankr. E.D. Ark. June 7, 2011) (Evans) (Homestead exemption was refused when debtors did not live on property at petition. Debtors had "abandoned the [property] as a homestead in 2006 and did not return to it or impress upon it any characteristics of a homestead at the time they filed bankruptcy.").

In re Tyson, 359 B.R. 239 (Bankr. E.D. Ark. Jan. 11, 2007) (Mixon) (Homestead exemption under Arkansas Constitution extended to proceeds of home sale as part of divorce when debtor stated intent to purchase another homestead with proceeds.).


Northern District of Iowa

In re Corbett, No. 15-01582, 2016 WL 4703481 (Bankr. N.D. Iowa Sept. 8, 2016) (Collins) (Debtor’s house in South Carolina is exempt homestead notwithstanding that debtor works and lives in an apartment in Iowa most of the time.).

In re Davis, No. BR 13-00168, 2013 WL 5726888 (Bankr. N.D. Iowa Oct. 21, 2013) (Collins) (Statutory judgment lien incident to divorce decree does not attach to debtor's homestead under Iowa law.).

In re Timmer, 423 B.R. 870 (Bankr. N.D. Iowa Feb. 17, 2010) (Kilburg) (Under Iowa law, when waiver of homestead did not specifically stipulate that homestead real estate was liable for business debt, creditor may not execute on homestead to satisfy business debt until exhausting other collateral.).

In re Meyer, 392 B.R. 416 (Bankr. N.D. Iowa July 1, 2008) (Kilburg) (Use of exempt funds from settlement of automobile accident to purchase family home was not fraudulent and did not defeat Iowa homestead exemption notwithstanding that sale proceeds from former homestead were not used to acquire new residence.).


In re Maronde, 332 B.R. 593 (Bankr. D. Minn. Nov. 8, 2005) (Applying new § 522(o), Chapter 13 debtor sold trailer and truck on the eve of bankruptcy to use proceeds to create a homestead exemption with actual intent to hinder, delay or defraud creditors.).


Eastern District of Missouri

In re Helmes, No. 15-10427-399, 2015 WL 6940634, at *3 (Bankr. E.D. Mo. Nov. 9, 2015) (Schermer) (Debtors could not claim prepetition tax refund exempt under Missouri statute that allowed exemption of “right to receive” tax refund because “receipt” occurred when H&R Block took possession of refund as debtors’ agent by direct deposit from IRS. “That the Debtors were never actually able to spend the proceeds of the refund is immaterial. Receipt by the Debtors’ agent is receipt, nonetheless.”).

Western District of Missouri

In re Gentry, 519 B.R. 531, 531 (Bankr. W.D. Mo. Oct. 1, 2014) (Federman) (Debtor's three firearms—a .22 pump rifle, a .22 pump shotgun, and a 20-gauge pump shotgun—valued at $250 were exemptible household goods. "[I]n the typical case, where a debtor keeps [ ] guns for hunting or self-defense, firearms can be household goods . . . and . . . exempt under Missouri law.").

In re Stover, 332 B.R. 400 (Bankr. W.D. Mo. Nov. 1, 2005) (Federman) (Missouri exemption for payments on account of wrongful death of individual on whom debtor is dependent is not applicable; 31-year-old debtor provided no evidence that he was dependent upon his father.).


In re Anthony, No. BK11-42232-TJM, 2012 WL 1207421, at *2 (Bankr. D. Neb. Apr. 11, 2012) (Mahoney) (Nebraska exemption for "immediate personal possessions" was undefined in statute and decisional law. Exemption traditionally had been restricted to items of sentimental, but little monetary value. Legislature had established separate exemptions for wearing apparel, household items and tools of trade. Immediate personal possessions "is not a catch-all repository for personal property that cannot be shoehorned into any other category.").

In re Kirby, No. BK10-40455-TLS, 2012 WL 733884 (Bankr. D. Neb. Mar. 6, 2012) (Saladino) (Citing Stuart v. Koch (In re Koch), 109 F.3d 1285 (8th Cir. Mar. 28, 1997) (Beam, Lay, Loken), because exempt property can be disposable income, exemption of entire $495,000 settlement from personal injury claim is denied when only $45,000 was needed to pay all unsecured claims. Nothing in record indicated that $45,000 was needed for medical care or support, making exempt nature of funds irrelevant.).

In re Sprague, No. BK09-82123-TLS, 2010 WL 1991651 (Bankr. D. Neb. May 18, 2010) (unpublished) (Mahoney) (Nebraska debtor holding undivided one-half interest in real property as joint tenant was entitled to homestead exemption when family considered property to be homestead at time of purchase; although spouses were pursuing divorce, no judgment had severed joint tenancy for exemption purposes.).

In re Sprague, No. BK09-82123-TLS, 2010 WL 1991651 (Bankr. D. Neb. May 18, 2010) (unpublished) (Mahoney) (Nebraska debtor holding undivided one-half interest as joint tenant in homestead property could avoid prepetition judgment lien entered against nondebtor spouse; pending divorce had not changed ownership of property as joint tenants. Debtor was entitled to claim homestead exemption which was impaired by judgment lien.).

In re McFee, No. BK08-82078-TJM, 2009 WL 1383290 (Bankr. D. Neb. May 14, 2009) (Saladino) (Distinguishing Farrey v. Sanderfoot, 500 U.S. 291, 301, 111 S. Ct. 1825, 114 L. Ed. 2d 337 (1991), since creditor's judgment was established prior to debtor's purchase of residence with spouse, judgment lien was avoidable, but only upon completion of plan payments and entitlement to discharge.).

In re Bernhardt, No. BK07-42438-TLS, 2008 WL 2484582 (Bankr. D. Neb. June 17, 2008) (unpublished) (Saladino) (Debtors are entitled to Nebraska homestead exemption in undivided one-fourth interest in 160 acres on which debtors placed motor home in which they resided with intent to occupy as their homestead; property contained dwelling in state of disrepair that debtors intended to restore while living in motor home.).

In re Millard, No. BK07-42075-TLS, 2008 WL 2330969, at *1 (Bankr. D. Neb. June 4, 2008) (unpublished) (Mahoney) (Applying mathematical formula in § 522(f)(2)(A), lien is avoided in full because amount of liens and exemption exceed debtors' interest in property. "If the total of the liens against the property and the debtors' exemption in the property is less than the debtors' interest in the property absent any liens, then the lien does not impair the exemption and cannot be avoided. If the total of the liens and the exemption exceeds the debtors' interest absent liens, then the lien impairs the exemption and is avoided by the amount of the difference. If the amount of the difference exceeds the amount of the lien, then the lien is avoided in full.").

I.  Ninth Circuit

Gould v. United States (In re Gould), 603 F.3d 1100 (9th Cir. Apr. 30, 2010) (O'Scannlain, Trott, Paez) (BAP correctly determined that the IRS right of setoff in prepetition tax refund to pay prepetition tax liability trumps the debtor's claim of exemption in that refund.), aff'g 401 B.R. 415, 426-28 (B.A.P. 9th Cir. Feb. 11, 2009) (Jury, Markell, Dunn) (Setoff of tax refund trumps exemption. "The bankruptcy court's [Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S. Ct. 118 L. Ed. 2d 280 (1992),] analysis is not relevant because Debtor's contingent and unliquidated claim to tax refunds clearly was property of his estate, and the IRS had no basis to object to the claimed exemption. Ultimately, based on the factual record before the bankruptcy court and application of § 6402(a), Debtor's prepetition unpaid tax liabilities exceeded his prepetition tax overpayments, and there was no refund to which Debtor's claimed exemption could attach. . . . Section 553(a), applied by its terms, dictates that the IRS's right to offset a mutual debt is not affected by any other section of the Code . . . . [T]o give Debtor's exemption in his claim to the tax refunds precedence over § 553 would be to ignore the plain language of § 553. . . . [Section] 553 controls over § 522(c). . . . [T]he bankruptcy court abused its discretion in denying the IRS relief from stay under § 362(d)(1) by basing its ruling on the holding in Taylor[.]"), rev'g 389 B.R. 105 (Bankr. N.D. Cal. June 12, 2008) (Weissbrodt) (Motion by IRS to set off tax refund is denied when debtor scheduled income tax refunds as exempt and IRS failed to object to exemptions. "Under Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S. Ct. 1644, 118 L. Ed. 2d 280 (1992), the tax refunds are exempt and can no longer be subject to the IRS's subsequent efforts to assert a claim to setoff.").

Shiu Jeng Ku v. Brown (In re Shiu Jeng Ku), No. AZ-16-1174-BJuL, 2017 WL 2705301 (B.A.P. 9th Cir. June 21, 2017) (unpublished) (Brand, Jury, Lafferty) (Remand necessary to determine whether debtor was domiciled in Arizona when debtor moved to Florida in 2008 and returned to Arizona in 2014 but debtor insisted she intended to live in Arizona all along.).

Gately v. Moore (In re Gately), No. CC-16-1086-TaFMc, 2016 WL 6777316 (B.A.P. 9th Cir. Nov. 15, 2016) (unpublished) (Taylor, Faris, McKittrick) (Motion to avoid judicial lien under § 522(f)(1) is denied because domestic relations court award of attorney fees to former spouse’s counsel was in the nature of support, was a DSO for purposes of §§ 101(14A) and 523(a)(5) and lien securing judgment could not be avoided. State court considered income disparity and specifically refused to divide property in light of pending bankruptcy case. “[Section] 522(f)(1) specifically excludes some liens including: ‘a judicial lien that secures a debt of a kind that is specified in [§] 523(a)(5).’ . . . An award of attorney’s fees in a marital dissolution proceeding may be in the nature of a domestic support obligation for the purposes of §§ 523(a)(5) and 101(14A).”).

Wicklund v. Robert D. Johnson Trust (In re Wicklund), No. WW-14-1424-KiFJu, 2016 WL 1024096, at *6 (B.A.P. 9th Cir. Mar. 15, 2016) (unpublished) (Kirscher, Faris, Jury) (Debtor forfeited homestead exemption in property in Washington state because debtor did not reside there at the petition and did not record a homestead declaration until after bankruptcy court sustained objection to exemptions. "Jeffrey did not reside there and, more importantly, did not intend to reside there as of the bankruptcy petition . . . ; he also had not filed a declaration of homestead prior to the time the bankruptcy court entered its order denying the exemption. . . . Jeffrey did not satisfy either method for claiming a homestead under Washington law.").

Auyeung v. Christensen (In re Auyeung), No. EC-14-1382-JuKuPa, 2015 WL 3609301 (B.A.P. 9th Cir. June 9, 2015) (unpublished) (Jury, Kurtz, Pappas) (Judicial estoppel bars fourth lien avoidance motion when confirmed plan in prior case required debtors to sell property. Debtors never intended to sell property but instead used serial bankruptcy cases to stall, hoping for rising real estate market. Law v. Siegel, __ U.S. __, 134 S. Ct. 1188, 188 L. Ed. 2d (Mar. 4, 2014), is no obstacle to invoking judicial estoppel to prevent abuse of bankruptcy case.).

Frates v. Wells Fargo Bank, N.A. (In re Frates), 507 B.R. 298, 302-05 (B.A.P. 9th Cir. Mar. 13, 2014) (Jury, Kirscher, Dunn) (Service of § 522(f) motion consistent with Bankruptcy Rules 4003(d), 9014 and 7004 was sufficient notwithstanding potentially contrary state law. Debtors served judgment-lien creditor by certified mail addressed to the attention of an officer but did not serve the attorney listed on the abstract of judgment as required by California law. The motion identified the real property, but the notice did not. "[T]he motion and accompanying pleadings were served by certified mail and addressed to the attention of an officer of Wells Fargo. . . . [C]ompliance with Rule 7004(h) satisfies the first half of . . . [Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (Apr. 24, 1950)] . . . . Nowhere do the bankruptcy rules require compliance with [California law] nor do we perceive any reason why compliance should be compelled . . . .").

Green v. Hapo Cmty. Credit Union (In re Green), No. EW-12-1486-PaJuTa, 2013 WL 4055846, at *3-*5 (B.A.P. 9th Cir. Aug. 12, 2013) (unpublished) (Pappas, Jury, Taylor) (Debtor need not have equity to claim exemption that will support lien avoidance under § 522(f); lienholder cannot show prejudice when Chapter 13 case is reopened four and one-half years after closing to allow debtor to claim homestead exemption and avoid judicial lien. "[T]he Rules establish no time limit or deadline for the filing of a lien avoidance motion. . . . [T]he mere passage of time will not prejudice a creditor; indeed, not even 'inordinate delay,' without more, amounts to prejudice.").

Green v. Hapo Cmty. Credit Union (In re Green), No. EW-12-1486-PaJuTa, 2013 WL 4055846 (B.A.P. 9th Cir. Aug. 12, 2013) (unpublished) (Pappas, Jury, Taylor) (Debtor need not have equity to claim an exemption that will support lien avoidance under § 522(f); Chapter 13 case can be reopened four and one-half years after closing to allow debtor to claim homestead exemption and avoid judicial lien—lienholder cannot show prejudice from the mere passage of time.).

Banks v. Washington Trust Bank (In re Banks), No. ID-11-1495-HJuMk, 2012 WL 3205169 (B.A.P. 9th Cir. July 31, 2012) (unpublished) (Hollowell, Jury, Markell) (Declaration of homestead under Ohio law in commercial building occupied by a church was overcome by evidence that debtors did not intend to use the commercial building as a principal residence.).

Leavitt v. Alexander (In re Alexander), 472 B.R. 815 (B.A.P. 9th Cir. June 27, 2012) (Kirscher, Pappas, Dunn) (Mobile kitchen is an exempt "vehicle" under Nevada law.).

Messer v. Maney (In re Messer), No. AZ-11-1505-JuPaD, 2012 WL 762828 (B.A.P. 9th Cir. Mar. 9, 2012) (unpublished) (Jury, Pappas, Dunn) (Exemption claim of 100% of fair market value of vehicle was not valid when vehicle value was $12,000 and Arizona statute capped exemption at $5,000. Annuity not excluded from estate under § 541(c)(2) when there was no proof that annuity was a valid spendthrift trust. Debtor misunderstood holding of Schwab v. Reilly, 560 U.S. 770, 130 S. Ct. 2652, 177 L. Ed. 2d 234 (June 17, 2010). Suggestion that debtor might claim 100% of fair market value did not mean that claim was always valid exemption.).

Flores v. Yarnall (In re Flores), No. NV-09-1263-DJuP, 2010 WL 6259989, at *7 (B.A.P. 9th Cir. Apr. 6, 2010) (unpublished) (Dunn, Jury, Perris) (Personal injury claims are not so personal to the debtors that they are excluded from bankruptcy estate; debtors are limited to exemption amount and cannot exclude entire settlement proceeds from Chapter 13 estate. "In seeking to exclude their injury claims from property of the estate, the Floreses in effect attempt to establish a new common law exemption scheme that does not comport with either the federal or Nevada exemption schemes.").

White v. Brown (In re White), 389 B.R. 693 (B.A.P. 9th Cir. Apr. 22, 2008) (Klein, Pappas, Jury) (Continuing the saga of England v. Golden (In re Golden), 789 F.2d 698 (9th Cir. 1986), after conversion from Chapter 7, Chapter 13 trustee was entitled to turnover of proceeds from prepetition sale of homestead when Arizona temporary exemption expired during Chapter 7 case; personal use of proceeds by debtor during temporary exemption period did not defeat trustee's contingent right to proceeds.).

White v. Brown (In re White), 389 B.R. 693 (B.A.P. 9th Cir. Apr. 22, 2008) (Klein, Pappas, Jury) (Applying England v. Golden (In re Golden), 789 F.2d 698 (9th Cir. 1986), trustee did not have to object to exemptions to preserve contingent right to proceeds of sale of homestead during Arizona temporary exemption period; after conversion from Chapter 7, Chapter 13 trustee is successor to order that required debtor to turn over proceeds of prepetition sale of homestead that were lost in stock trades during Chapter 7 case.).

Brown v. Sobczak (In re Sobczak), 369 B.R. 512 (B.A.P. 9th Cir. May 11, 2007) (Chapter 13 debtor domiciled in Arizona for less than 730 days was not eligible for $150,000 Arizona homestead exemption but instead was pointed to Ohio by § 522(b)(3)(A) and was eligible for $5,000 Ohio exemption; although debtor has standing to seek dismissal under § 1307(c) after conversion from Chapter 7, it was not in best interest of creditors and estate to dismiss when domicile rule in § 522(b)(3)(A) would limit homestead exemption to substantially less than nonbankruptcy law.).

T & F Constr. Co. v. Zall (In re Zall), No. EC-05-1476-MoSB, 2006 WL 6811022, at *3 (B.A.P. 9th Cir. Sept. 5, 2006) (unpublished) (Montali, Smith, Brandt) (Exemption law in effect on date of Chapter 13 petition determines available exemptions—not exemptions under state law at time judgment lien was recorded. "[L]imiting the exemption to the amounts available on the dates that judgment liens attach is inconsistent with section 522(f). . . . In order to determine the amount of an exemption that Debtors could claim if there were no liens on the property, the court must look not to the time the lien was fixed but rather to the time the trustee's hypothetical levy became effective, which is the date Debtors filed their bankruptcy petition.").


In re Eimers, No. A12-00692-GS, 2013 WL 1739645 (Bankr. D. Alaska Apr. 23, 2013) (Spraker) (Lien avoidance motion was not properly served when sent to attention of entity debtors incorrectly believed to be creditor's registered agent. Acknowledging split whether Bankruptcy Rule 7004(h) requires service on named officer or only on office such as president or chief executive officer, motion for default denied without prejudice to proper service of lien avoidance motion.).

In re Bertran, No. A12-00501-GS, 2012 WL 6093454 (Bankr. D. Alaska Dec. 6, 2012) (Spraker) (Debtor could not avoid judicial lien on Montana homestead when debtor was Alaska resident. That debtor "might" return to Montana did not establish homestead.).

In re Bertran, No. A12-00501-GS, 2012 WL 6093454 (Bankr. D. Alaska Dec. 6, 2012) (Spraker) (Debtor could not avoid judicial lien on Montana homestead when debtor was Alaska resident. That debtor "might" return to Montana did not establish homestead.).

In re Brown, No. A08-00235-DMD, 2008 WL 8652592 (Bankr. D. Alaska Nov. 17, 2008) (MacDonald) (Judicial lien avoided when creditor had unsecured claim; postpetition filing of financing statement on trailer purchased from debtors was void as violation of stay. Trailer had been repossessed by different creditor and there was no underlying security agreement between purchaser of trailer and debtors.).


In re Letizia, No. 3:13-bk-09233-RJH, 2014 WL 184438 (Bankr. D. Ariz. Jan. 14, 2014) (Haines) (Arizona personal item exemption does not apply to vehicles used in debtor's business; business vehicles may be exempt only as tools of trade.).

In re Rand, 400 B.R. 749 (Bankr. D. Ariz. Dec. 19, 2008) (Haines) (Because judgment lien could never attach to homestead property under Arizona law, debtor had no need to avoid judgment lien on basis that it impaired exemption.).

In re Farnsworth, 384 B.R. 842 (Bankr. D. Ariz. Mar. 19, 2008) (Marlar) (Arizona law recognizes exception to homestead for equitable lien of creditor that filed prepetition lis pendens based on money loaned for purchase of property; judicial lien primes homestead.).

In re Farnsworth, 384 B.R. 842 (Bankr. D. Ariz. Mar. 19, 2008) (Marlar) (Citing Farrey v. Sanderfoot, 500 U.S. 291, 111 S. Ct. 1825, 114 L. Ed. 2d 337 (1991), creditor's lien affixed to property at time of loan, predating debtor's purchase; therefore, lender's judicial lien encumbered real estate prior to fixing of debtor's homestead exemption; debtor may not avoid lender's lis pendens lien that primes homestead.).

In re Greene, 359 B.R. 262 (Bankr. D. Ariz. Jan. 24, 2007) (Marlar) (Confirmation of plan implicitly overruled "conditional" objection to exemptions lodged by Chapter 13 trustee in every case as a place-saver for possible future exemption challenge.).

In re McNabb, 326 B.R. 785, 789, 790 (Bankr. D. Ariz. June 23, 2005) (The cap on a debtor's homestead exemption imposed by § 522(p) applies only as a result of "electing" to exempt property under state or local law; because state law does not permit that election, cap does not apply. "[T]he $125,000 cap applies only 'as a result of electing under subsection (b)(3)(A) to exempt property under State or local law.' Code § 522(b)(1) allows debtors to elect to exempt property listed in either paragraph 2 or, in the alternative, paragraph 3." Originally, the Code contemplated the debtors would be able to elect either local or bankruptcy code exemptions. Congress gave to states the power to "opt out" of the Bankruptcy Code exemptions. Arizona, being an opt-out state, does not give the debtor the right to "elect" state exemptions. Arizona's exemptions are the only ones available to a debtor. "It really is not for this Court to speculate on Congress's purposes when the language is clear and unambiguous. . . . Here there is no ambiguity or absurdity in result. The language is unambiguous in stating that the cap is imposed only 'as a result' of an election, so if there is no election there can be no cap. And the result can hardly be deemed absurd, when it is consistent with 163 years of bankruptcy law." Congress had the ability to draft language which limited all state exemptions referring to the language of § 522(o), but it created a blanket reduction in a homestead, irrespective of the method by which the homestead was derived. "If Congress had similarly intended the $125,000 cap found in § 522(p) to apply across the board, it would presumably have used the identical language.").


Eastern District of California

In re Allen, No. 17-23732-A-13J, 2017 WL 4417565 (Bankr. E.D. Cal. Oct. 3, 2017) (McManus) (After contested valuation hearing, judicial lien is only partially avoidable under the formula in § 522(f)(2)(A); lienholder must be provided for as a partially secured creditor to confirm a plan.).

In re Paulsen, No. 11-27913-C-13, 2013 WL 2337917 (Bankr. E.D. Cal. May 24, 2013) (unpublished) (Sargis) (Chapter 7 trustee's failure to timely object to exemption in lawsuit before conversion is fatal to any objection by Chapter 13 trustee.).

In re Dunnaway, 466 B.R. 515 (Bankr. E.D. Cal. Mar. 6, 2012) (Lee) (Firearms are not expressly enumerated in California exemption statute for household property, but trustee's objection to exemption of firearms was overruled.).

In re Harrell, No. 06-24207-D-13L, 2007 WL 1703580 (Bankr. E.D. Cal. June 12, 2007) (unpublished) (Bardwill) (No California statutory authority for exemption in proceeds of personal injury lawsuits attributable to overtime pay or unpaid wages.).

In re Meeks, 349 B.R. 19, 22 (Bankr. E.D. Cal. Aug. 24, 2006) (Lee) ("Based on the evidence presented, . . . the value of the Residence is approximately $320,000. The unavoidable liens plus the amended homestead exemption total $305,308.11. The Residence therefore has $14,691.89 of non-exempt equity. Pacific Bell's judgment lien impairs the Debtors' homestead exemption to the extent that the value of its lien exceeds the non-exempt equity. Therefore, Pacific Bell's judicial lien will be partially avoided, but will survive in the amount of $14,691.89.").

Northern District of California

Webb v. Brady, No. C 06-00188 MHP, 2007 WL 2670003 (N.D. Cal. Sept. 7, 2007) (unpublished) (Patel) (Rule 4003(b) does not require that trustee's objection to exemption be filed after debtor's amendment to exemption; premature objection to amended Schedule C was timely. Under Preblich v. Battley, 181 F.3d 1048 (9th Cir. 1997), an improperly filed motion to amend Schedule C does not satisfy Rule 4003(b) requirement that creditors and trustee receive clear notice of amendment.).

In re Zarubin, No. 13-56511-ASW, 2014 WL 7212955, at *2 (Bankr. N.D. Cal. Dec. 17, 2014) (Weissbrodt) (Citing Law v. Siegel, ___ U.S. ___, 134 S. Ct. 1188, 188 L. Ed. 2d 146 (Mar. 4, 2014), proceeds from sale of homestead are not charged with postpetition claims of former spouse because court does not have discretion to surcharge or create exception to debtor's exemption rights. "'[T]he Code's meticulous—not to say mind-numbingly detailed—enumeration of exceptions confirms that courts are not authorized to create additional exceptions.'").

In re Feathers, No. 13-55816 CN, 2014 WL 4435992 (Bankr. N.D. Cal. Sept. 9, 2014) (Novack) (Judicial lien creditor must be given opportunity to object to late-filed homestead exemption before lien can be stripped under § 522(f)(2)(A).).

In re Goodrich, No. 13-11223, 2014 WL 2443792 (Bankr. N.D. Cal. May 30, 2014) (Jaroslovsky) (IRA forfeited exemption by engaging in transaction prohibited by Internal Revenue Code. Debtor rented a home owned by her IRA to her disabled daughter, a prohibited transaction under the IRC. Under California law an IRA loses its exempt status if it has engaged in a transaction prohibited by the IRC.).

In re Inukihaangana, No. 13-44260, 2013 WL 5966688 (Bankr. N.D. Cal. Nov. 8, 2013) (Lafferty) (Avoidance of judicial lien under § 522(f)(a)(1) requires debtor to claim exemption on Schedule C regardless whether there is equity.).

In re Inukihaangana, No. 13-44260, 2013 WL 5966688 (Bankr. N.D. Cal. Nov. 8, 2013) (Lafferty) (Avoidance of judicial lien under § 522(f)(a)(1) requires debtor to claim exemption on Schedule C regardless whether there is equity.).

In re Lehr, 479 B.R. 90 (Bankr. N.D. Cal. Aug. 28, 2012) (Montali) (Failure to disclose time-share, Porsche and other assets justified denial of homestead exemption and case dismissal for bad faith.).

In re Lawton, No. 09-48084-EDJ, 2010 WL 147913 (Bankr. N.D. Cal. Jan. 12, 2010) (Jellen) (Distinguishing Farry v. Sanderfoot, 500 U.S. 291, 111 S. Ct. 1825, 114 L. Ed. 2d 337 (May 23, 1991), because debtor's community property interest pre-existed former spouse's judgment lien, debtor's homestead exemption trumped judgment lien.).

In re White, 337 B.R. 686, 689 (Bankr. N.D. Cal. Nov. 23, 2005) (Morgan) (When only wife filed Chapter 13, literal language of § 522(f)(2)(A) allows avoidance of liens that impair debtor's partial interest as joint tenant. Judgment liens that exceed value of one half of total property interest are avoided fully. Reviewing division of authority: "[o]ne line of cases applies the plain meaning of § 522(f)(2)(A) and construes 'the debtor's interest in the property' to refer only to the debtor's partial interest. . . . [T]he formula requires that the full amounts of all liens and the debtor's exemption be deducted from the value of the debtor's partial interest in the property rather than from the value of the entire property. . . . The other line of cases holds that application of the plain meaning of § 522(f)(2)(A) is absurd and uses a different formula. Courts adopting this approach first calculate the net equity in the property by deducting the full amount of all consensual liens from the total value of the property to determine whether any equity remains for the debtor. The amount of the homestead exemption is then deducted from the debtor's interest to determine impairment. These cases assert that a literal application of § 522(f)(2)(A) has the effect of creating a windfall for the debtor at the expense of a lienholder whose lien is avoided.").


In re Koki, No. 17-01055, 2018 WL 816812, at *1–*3 (Bankr. D. Haw. Feb. 9, 2018) (Faris) (Unfounded, excessive or ambiguous exemption claims must be judicially determined before confirmation of a Chapter 13 plan because exemptions affect many other tests for confirmation, including best-interests-of-creditors test in § 1325(a)(4) and projected disposable income test in § 1325(b). “[U]nless the plan provides for full payment of all claims, plan confirmation should await the resolution of any objections to the debtor’s claim of exemptions. . . . Exemptions are relevant to the liquidation analysis because, in a chapter 7 case, the debtor gets to keep exempt property and the proceeds are not distributed to creditors. . . . [I]f the case is converted more than a year after the first plan was confirmed, the time to object to exemptions is not reopened. . . . Therefore, chapter 13 trustees must object to improper exemption claims even if those claims will not affect the chapter 13 plan, because creditors may be stuck with those exemptions if the case is subsequently converted.”).


In re Colafranceschi, 577 B.R. 817 (Bankr. D. Idaho Nov. 28, 2017) (Myers) (On complicated facts, debtor’s homestead claim survives attack for lack of evidence to overcome presumptive effect of filed declaration under state law.).

In re Lugo, No. 15-40121-JDP, 2015 WL 3932108 (Bankr. D. Idaho June 25, 2015) (Pappas) (Plan that surrenders real property overcomes a declaration of homestead for exemption purposes under Idaho law.).

In re Parker, No. 08-20164-TLM, 2008 WL 4545208, *2 (Bankr. D. Idaho Oct. 10, 2008) (unpublished) (Myers) (Although debtors used local model plan that included motion for lien avoidance, plan did not contain "sufficient factual detail and allegations to establish that the creditor has a judicial lien, or a security interest of the sort and in the types of collateral, assailable under § 522(f)(1), and to establish to what extent such lien or interest impairs an exemption under § 522(f)(2). This Court has regularly denied § 522(f) motions that fail to provide such detail, or where the information provided shows that the challenged lien or security interest is not properly avoidable.").

In re Wilcox, No. 07-01758-JDP, 2008 WL 450816 (Bankr. D. Idaho Feb. 15, 2008) (unpublished) (Pappas) (Debtor's interest in annuity contract is exempt under Idaho law.).

In re Hess, 350 B.R. 882 (Bankr. D. Idaho Oct. 21, 2005) (Pappas) ($7,500 settlement proceeds from malpractice claim are reasonable and necessary for the maintenance of the debtors and are exempt under Idaho law.).

In re McFarland, No. 04-01623, 2004 WL 4960367 (Bankr. D. Idaho Sept. 3, 2004) (unpublished) (Pappas) (College Savings Program accounts for debtors' children are exempt under Idaho law.).

In re Winter, No. 01-02995, 2002 WL 33939744 (Bankr. D. Idaho June 17, 2002) (unpublished) (Myers) (Debtors have homestead exemption in mobile home and are allowed personal property exemption up to $800 in car; camera and bicycle fit within "recreational" items allowed as "household goods" under Idaho exemption law.).


In re Berdecia-Rodriguez, No. 16-60400-13, 2016 WL 5763378 (Bankr. D. Mont. Sept. 30, 2016) (Kirscher) (Money in health savings account is exempt under Montana law so long as debtor only uses withdrawals for qualified medical expenses.).

In re Wright, 525 B.R. 464 (Bankr. D. Mont. Feb. 13, 2015) (Kirscher) (Homestead exemption is available notwithstanding that judicial lien is prior in time to recording of homestead declaration under Montana law; debtor proved entitlement to homestead exemption in adjacent lots with uncontroverted testimony that uninhabitable building on one lot was necessary to debtor's use and enjoyment of home on other lot.).

In re Wright, 525 B.R. 464, 470-71 (Bankr. D. Mont. Feb. 13, 2015) (Kirscher) (Failure to timely object to homestead exemption under Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S. Ct. 1644, 118 L. Ed. 2d 280 (Apr. 21, 1992), does not preclude argument that exemption to which the debtor "would have been entitled" in § 522(f) is not satisfied because debtor is not entitled to the claimed exemption; however, debtor proved entitlement to homestead exemption in adjacent lots with uncontroverted testimony that uninhabitable building on one lot was necessary to debtor's use and enjoyment of home on other lot. "Satterfield's objection to Debtor's Motion to avoid her judicial liens challenges the validity of Debtor's claim of exemption . . . , even though she did not file a timely objection to his claim of exemption. . . . 'The first element of the test . . . is that the debtor "would have been entitled" to the exemption under § 522(b). That the debtor is entitled to the exemption by virtue of § 522[(l)] does not mean that the debtor "would have been entitled" to the exemption under § 522(b) . . . . This language requires the court to find that the debtor is entitled to the exemption under relevant state or federal law in order to authorize the avoiding of a lien under § 522(f). Reliance by the exemption-by-default of § 522[(l)] does not satisfy this burden.'").

In re Anderson, No. 11-61845-11, 2012 WL 1110056 (Bankr. D. Mont. Apr. 2, 2012) (Kirscher) (Debtor living and working in California was not entitled to Montana homestead exemption; avoidance of judicial lien denied because debtor must be entitled to exemption.).

In re Shields, No. 08-61066-13, 2009 WL 981145 (Bankr. D. Mont. Mar. 24, 2009) (unpublished) (Kirscher) (After hearing competing appraisal testimony, judicial lien impaired homestead exemption and was avoidable.).

In re Urban, 361 B.R. 910, 924-25 (Bankr. D. Mont. Jan. 31, 2007) ("[Section] 522(b)(3)[] applies uniformly throughout the United States to all debtors who seek protection under the Bankruptcy Code within 730 days of moving from one State to another. . . . [Section] 522(b)(3) . . . does not violate the uniformity requirement found in the United States Constitution, Article 1, Section 8, Clause 4."), aff'd, 375 B.R. 882, 891 (B.A.P. 9th Cir. 2007) ("The law is uniform because it applies to all debtors who have not been domiciled in the forum state for at least two years preceding bankruptcy, regardless of where a bankruptcy petition is filed.").).

In re Braulick, 360 B.R. 327, 332 (Bankr. D. Mont. Nov. 13, 2006) (Even if debtors' interest in Montana deferred compensation plan is not excluded from estate by § 541(b)(7) and Patterson v. Shumate, 504 U.S. 753, 112 S. Ct. 2242 (1992), "BAPCPA amended 11 U.S.C. §§ 522(b)(3)(C) and 522(b)(4) and created an exemption for certain retirement and deferred compensation funds under the federal exemptions and preempted State exemptions even if the State had opted out of the federal exemptions.").


Jacobs v. Brain Power Am., Inc., No. BK-04-19619-GS, 2017 WL 834978 (D. Nev. Mar. 2, 2017) (Dorsey) (In a Chapter 13 case filed in 2004 and discharged in 2008, unscheduled judgment lien on homestead property could be avoided under § 522(f) by reopening bankruptcy case in 2014. Unscheduled lienholder was not in contempt for renewing the lien in 2008 and 2014 and debtor’s action for contempt was not filed in bad faith for purposes of Bankruptcy Rule 9011.).


In re Fielder, No. 15-62284-TMR13, 2016 WL 6879252 (Bankr. D. Or. Nov. 16, 2016) (Renn) (“[T]he Residence’s value of $165,000, minus Nationstar’s lien of $116,322.16, NWCCU’s lien of $13,500, and Debtors’ allowed homestead exemption of $50,000, leaves no value to which Sacor’s lien can attach. Thus, the lien fully impairs the exemption and may be avoided in its entirety.”).

In re Grimes, No. 08-34275-rld13, 2009 WL 960143 (Bankr. D. Or. Feb. 5, 2009) (Dunn) (Mortgagee's objection to homestead exemption is late when raised in objection to confirmation after Bankruptcy Rule 4003 bar date. Under Oregon law, debtor was entitled to homestead exemption in triplex when one unit was residence at petition date, but only if equity existed (none did).).

In re Stewart, No. 06-3135-rld, 2006 WL 4528532 (Bankr. D. Or. May 18, 2006) (unpublished) (Dunn) (Personal liability to judicial lien creditor was discharged in prior Chapter 7, but lien was not avoided and remains effective in Chapter 13 case, subject to debtors' homestead exemption.).


Eastern District of Washington

In re Winchell, No. 10-05827-PCW13, 2010 WL 5338054, at *1-*2 (Bankr. E.D. Wash. Dec. 20, 2010) (Williams) (Interpreting Schwab v. Reilly, 560 U.S. 770, 130 S. Ct. 2652, 177 L. Ed. 2d 234 (June 17, 2010), "Full FMV" in value column of Schedule C claimed exemption for full market value of home and exceeded statutory limit of § 522(d)(1); trustee's objection was sustained, but debtors may amend Schedule C. Although Schwab "does indeed provide that if the debtor intends to exempt the actual value of the asset, the debtor should list the value claimed exempt as 'full market value (FMV)' or '100% of FMV,'" this "does not change the typical practice in this District of placing a dollar amount in the 'Value of Claimed Exemption' column of Schedule C. Such practice resolves the underlying tension between maximizing the debtor's exemptions as allowed by law, and the administrative ease with which the trustee may preserve the estate's interest in assets, whose value may exceed the statutory exemption limits. Such practice is approved by Schwab. The column on Schedule C entitled 'Current Value of Property Without Deducting Exemption' requires the debtor to list the fair market value of the property. Other than the few types of assets in which debtor has an unlimited exemption amount, the Code generally allows a debtor to exempt only a precise dollar amount of the debtor's interest in the asset. If a debtor lists an amount in excess of the statutory dollar amount, an interested party must, and typically will, object. If the fair market value in the column 'Current Value of Property Without Deducting Exemption' is an amount greater than the statutory dollar amount allowed as an exemption, and if the debtor lists 'FMV' in the column 'Value of Claimed Exemption,' the claimed exemption will draw a sustainable objection. Only if the debtor intends to exempt the full actual fair market value of the asset, does the debtor state 'FMV' in the 'Value of Claimed Exemption' column. 'Where, as here, it is important to the debtor to exempt the full market value of the asset or the asset itself, our decision will encourage the debtor to declare the value of her claimed exemption in a manner that makes the scope of the exemption clear, for example, by listing the exempt value as "full market value (FMV)" or "100% of FMV." Such a declaration will encourage the trustee to object promptly to the exemption if he wishes to challenge it and preserve for the estate any value in the asset beyond relevant statutory limits. If the trustee fails to object, or if the trustee objects and the objection is overruled, the debtor will be entitled to exclude the full value of the asset. If the trustee objects and the objection is sustained, the debtor will be required either to forfeit the portion of the exemption that exceeds the statutory allowance, or to revise other exemptions or arrangements with her creditors to permit the exemption. (Footnotes omitted.)' Schwab v. Reilly, supra, at p. 2668.").

Western District of Washington

Emery v. Edrington (In re Emery), No. 15-41333-BDL, 2016 WL 7383720 (Bankr. W.D. Wash. Dec. 20, 2016) (Lynch) (Citing Farrey v. Sanderfoot, 500 U.S. 291, 111 S. Ct. 1825, 114 L. Ed. 2d 337 (May 23, 1991), “owelty” liena judgment lien granted by divorce court as compensation for interest in real propertyis not avoidable under § 522(f). “Here, just like Farrey, Ms. Edrington’s lien attached to the property at the same time that Debtor’s fee simple interest in it was created. Therefore, her lien did not attach to a pre-existing interest of the debtor and like Farrey’s lien, it cannot be avoided under Section 522(f).” However, former spouse’s lien is wholly unsecured and can be stripped off under § 506(a) without offending § 1322(b)(2).).

J.  Tenth Circuit

Hansen v. Green Tree Servicing, LLC (In re Hansen), 332 B.R. 8 (B.A.P. 10th Cir. Oct. 14, 2005) (Nugent, Thurman, Romero) (A Chapter 13 debtor does not have standing to exercise the strong-arm powers of a trustee under § 544.).


In re Bridges, No. 11-28930 MER, 2013 WL 1344572 (Bankr. D. Colo. Apr. 2, 2013) (Romero) (Under Colorado exemption law, money removed from IRA and deposited into checking or savings account lost its exempt status.).

In re Kerrigan-Ronan-Prew, Nos. 11-15126 MER, 12-15879 MER, 2013 WL 1191241 (Bankr. D. Colo. Mar. 22, 2013) (Romero) (Desire to return to California at unspecified future date did not constitute residency under California law; debtor not entitled to California homestead exemption.).

In re Kerrigan-Ronan-Prew, Nos. 11-15126 MER, 12-15879 MER, 2013 WL 1191241 (Bankr. D. Colo. Mar. 22, 2013) (Romero) (Debtor was not entitled to California homestead and could not avoid judicial lien.).

Balck v. Hoffman (In re Balck), No. 09-1741 EEB, 2011 WL 6130418, at *3 (Bankr. D. Colo. Dec. 8, 2011) (Brown) (Lien avoidance not available when debtors did not prove that items subject to voluntary lien were tools of trade under § 522(f)(1)(B)(ii). Applying Heape v. Citadel Bank of Independence (In re Heape), 886 F.2d 280 (10th Cir. Sept. 22, 1989) (Logan, Seymour, Baldock), "use" test for defining tools of trade "focuses on the necessity of an item to the individual debtor's particular business or employment.").


In re Gaines, No. 14-11766, 2015 WL 2376323 (Bankr. D. Kan. May 14, 2015) (Nugent) (Intent to occupy homestead is sufficient under Kansas law to support exemption by debtors.).

In re Rich, No. 12-10357, 2013 WL 1628723, at *3 (Bankr. D. Kan. Apr. 16, 2013) (Nugent) (Joint debtors that acquired homestead within 1,215 days of Chapter 13 petition each get homestead exemption of $146,450 under § 522(p)(1). "While § 522(b)(3) avails the debtors of an unlimited value Kansas homestead exemption, subsection (p) limits the value of that exemption in bankruptcy. Subsection (m) applies that cap to each of them, meaning that each debtor's share of the homestead is value-capped at $146,450.").

Hamilton v. Fisher (In re Fisher), 486 B.R. 200 (Bankr. D. Kan. Jan. 22, 2013) (Karlin) (Under Kansas law, homestead exemption was proper in undeveloped rural land on which debtor had placed trailer for residence. Trustee failed to carry burden that property was not actually occupied as homestead or that debtor did not so intend.).

In re Long, 470 B.R. 186, 190 (Bankr. D. Kan. May 7, 2012) (Nugent) (Debtor can claim federal exemptions under § 522(b) when debtor relocated to Kansas from Nebraska within 730 days and Nebraska exemptions are only available to residents. "[W]hen the debtor can establish where she resided for the greater part of the (b)(3)(A) 180-day period, it is that state's laws that apply to her exemption rights. If those exemption rights are denied to her by the operation of that law, she may claim the federal exemptions under the plain language of (b)(3)(A), the hanging paragraph. . . . This is the only interpretation of the hanging paragraph that allows both the domiciliary time limitations of (b)(3)(A) and the hanging paragraph to function effectively.").

In re Ziccardi, No. 10-11965, 2011 WL 1770413, at *3 (Bankr. D. Kan. May 9, 2011) (unpublished) (Nugent) (Under Kansas law, debtors occupied property as homestead, while continuing renovation with intent to move in permanently. While occupancy is essential requirement, it may include temporary absence. "[O]nce a homesteader took possession, that occupancy was presumed to continue until the occupant took positive and clear action to abandon the homestead.").

In re Curry, No. 09-41307, 2009 WL 5198294 (Bankr. D. Kan. Dec. 22, 2009) (Karlin) (Under Kansas law, debtors were entitled to homestead exemption when they intended to return to home notwithstanding extended absence due to employment.).

In re Letterman, 356 B.R. 540 (Bankr. D. Kan. Dec. 21, 2006) (Nugent) (Homestead exemption fails because homestead property burned, debtor stated intention to sell property and use proceeds to pay creditors and debtor was not living in property at petition.).

In re Hutchinson, 354 B.R. 523 (Bankr. D. Kan. Oct. 5, 2006) (Karlin) (Tribal member's right to receive per capita distribution of casino profits is not exempt "public assistance benefit" under § 522(d)(10) and is not a revenue generated from lease or sale of lands held in trust by United States for an Indian under 25 U.S.C. § 410.).

In re McCambry, 327 B.R. 469 (Bankr. D. Kan. July 1, 2005) (Berger) (Under Kansas homestead exemption law, debtors can exempt entire duplex located on parcel of less than one acre, rather than one half occupied as residence.).

In re Hartman, 335 B.R. 176, 180 (Bankr. D. Kan. Feb. 3, 2005) (Karlin) (Applying Farrey v. Sanderfoot, 500 U.S. 291, 111 S. Ct. 1825, 114 L. Ed. 2d 337 (1991), debtor never possessed separate fee simple interest in property before his spouse's judicial lien was fixed by divorce decree. "[A] joint marital estate in the subject real estate was created on the date Alva Hartman filed his divorce petition in both spouses, and in all other property owned by either spouse. The divorce decree, entered several months later, then granted Debtor a new fee simple interest in the real property, and that same decree simultaneously granted Ewert a judicial lien, with the obvious and expressed intent of equalizing the division of property. Because Debtor never possessed his new fee simple interest before her judicial lien was 'fixed,' he may not use § 522(f) to avoid her lien . . . preserv[ing] the Geary County court's intent to justly and reasonably divide the marital property.").

New Mexico

In re Martinez, 469 B.R. 74 (Bankr. D.N.M. Jan. 24, 2012) (Jacobvitz) (Husband not entitled to New Mexico homestead exemption in property titled solely in wife's name at petition; wife's unauthorized postpetition transfer of interest to husband did not create homestead exemption.).

In re Martinez, 469 B.R. 74 (Bankr. D.N.M. Jan. 24, 2012) (Jacobvitz) (Petition date determines entitlement to lien avoidance, and property value at petition prevented judicial lien from impairing wife's homestead exemption; only wife was entitled to homestead at commencement of case since property was titled only in her name. Unauthorized postpetition transfer of interest to husband could not create homestead for him. Avoidance of judicial lien was denied.).

In re Keenan, 364 B.R. 786 (Bankr. D.N.M. Mar. 27, 2007) (Starzynski) (Debtors have standing to use § 522(f) and judicial lien is partially avoided. Recording of judicial lien was preferential transfer, which only trustee could pursue.).


In re Petersen, 561 B.R. 788 (Bankr. D. Utah Nov. 8, 2016) (Thurman) (Trustee has standing to object to Chapter 13 debtor’s motion to avoid a judicial lien under § 522(f). “[T]he Trustee’s standing to object to the Motion is proper pursuant to § 1302(b). . . . [T]he Trustee is a fiduciary; he owes fiduciary dutiesto both the debtor and creditors. . . . [T]he Debtors’ plan proposed to return the greater of $2,000.00 or the minimum 36month plan base on allowed non-priority unsecured claims. Consequently, the Trustee believes there may be value that can be distributed to unsecured claimants under the confirmed plan and thus the Trustee has an affirmative duty to ensure that they are properly paid.”).

In re Petersen, 561 B.R. 788 (Bankr. D. Utah Nov. 8, 2016) (Thurman) (Lien avoidance under § 522(f) is effective immediately for purposes of plan consummation and distributions (only) notwithstanding § 349; upon completion of plan payments, lien avoidance becomes “complete.” “The Trustee contends that § 349(b)(1)(B) is intended to protect creditors by avoiding the scenario where a lien is avoided, the property is sold without the lien attached, and the case is thereafter dismissed without a discharge. . . . [T]he Trustee argues, that without the protections of § 349(b)(1)(B) there would be no way to reattach the lien . . . . The lienholder . . . did not object . . . . [N]othing in the Code suggests that avoidance of a lien under § 522(f) is not immediate. . . . [T]he Debtors may treat the otherwise secured claim . . . as unsecured for treatment in the plan. However, the Court is reluctant to extend the unsecured status . . . for all purposes unless and until the Debtors complete the plan. . . . Accordingly, . . . the lien impairing the Debtors’ homestead exemption may be avoided immediately for plan consummation only. At such time the Debtors complete the plan, the lien should be completely avoided. In the event of a dismissal of this case, prior to completion of the plan, § 349(b)(1)(B) reinstates any transfer avoided under § 522(f).”).

In re Godfrey, 386 B.R. 339, 342 (Bankr. D. Utah Apr. 21, 2008) (Thurman) (Proceeds from prepetition sale of debtor's residence remain exempt under Utah's homestead exemption, even though debtor used some proceeds for purchases of personal property and payment of debt. "Utah's homestead exemption necessarily includes disposition of sale proceeds for other purposes and extends to proceeds voluntarily transferred by a debtor." Claim of exemption on Schedule C in proceeds from sale of residence was sufficient disclosure.).

K.  Eleventh Circuit

Valone v. Waage (In re Valone), 784 F.3d 1398 (11th Cir. Apr. 29, 2015) (Wilson, Fay, Ripple) (Debtors who owned home but had not claimed Florida homestead at Chapter 13 petition can claim $4,000 wild card exemption in personal property.), rev'g and remanding No. 2:13-CV-171-FTM-38, 2014 WL 970024, at *5 (M.D. Fla. Mar. 12, 2014) (Chappell) (Chapter 13 debtors receive benefit of Florida homestead exemption even if exemption is not claimed; wildcard exemption for those who do not receive benefit of homestead exemption. " Based upon the Florida Supreme Court's definition of the benefits derived from the homestead exemption, [debtors] received the benefit because the Residence is protected from levy by . . . any of [debtors'] unsecured creditors by the Chapter 13 bankruptcy and will be as long as the Chapter 13 plan is in place. [Debtors] are protected by the bankruptcy automatic stay and continue to receive the benefit of the homestead exemption during the life of the Chapter 13 case."), aff'g 500 B.R. 645, 651 (Bankr. M.D. Fla. Sept. 4, 2013 (Delano) (Debtor retaining Florida homestead receives benefit of homestead exemption even if homestead exemption has not been claimed and may not claim wildcard exemption available to debtors who do not "claim or receive the benefits of a homestead exemption" under Florida law. Osborne v. Dumoulin, 55 So. 3d 577 (Fla. 2011), does not apply in Chapter 13: "A Chapter 13 case . . . involves a 'future-looking process.' A Chapter 13 debtor's residence is protected from forced sale by operation of the automatic stay throughout the duration of the case. Dumoulin requires a debtor who wishes to retain his residence and to claim the wild card exemption to 'effectively surrender' the residence to the trustee for administration. . . . [U]nlike in a Chapter 7 case, a Chapter 13 trustee is not charged with the duty to administer property of the estate, and the debtor's residence never becomes subject to administration by the Chapter 13 trustee. Therefore, a Chapter 13 debtor who proposes to retain his residence during the term of his plan but who does not claim the residence as exempt still receives the homestead exemption's protections despite failing to assert the homestead exemption.").


Middle District of Alabama

In re Laird, No. 09-10935-DHW, 2010 WL 1664079 (Bankr. M.D. Ala. Apr. 22, 2010) (unpublished) (Williams) (Homestead exemption under Alabama law was inferior to consensual mortgage lien, even though debtors did not affirmatively waive homestead exemption.).

Northern District of Alabama

Redstone Fed. Credit Union v. Whited, No. 5:17-cv-00496-MHH, 2018 WL 1509408, at *1–*5 (N.D. Ala. Mar. 27, 2018) (Haikala) (In “mixed debt” casecase in which debt was incurred before and after a change in state exemption lawdebtor is entitled to exemption law in effect at time of petition. “When Redstone obtained and recorded the judgment, Alabama’s homestead exemption was $5,000 for individuals and $10,000 for jointly owned property. . . . On June 11, 2015, the Alabama Legislature increased the state’s homestead exemption amounts to $15,000 for individuals and $30,000 for jointly owned property. . . . On August 25, 2016, the Whiteds filed a Chapter 13 bankruptcy petition . . . . [T]he Whiteds claimed the $30,000 jointly owned property homestead exemption in the property encumbered by Redstone’s judgment lien. . . . A debtor in a mixed debt Chapter 13 bankruptcy case is entitled to the homestead exemption in force on the date the debtor files her bankruptcy petition. In a mixed debt case, the petition date exemption is consistent with federal law, legislative intent, the debtor’s fresh start, and the courts’ liberal construction of exemption statutes in favor of the debtor.”).

In re White, 510 B.R. 884, 887 (Bankr. N.D. Ala. May 16, 2014) (Caddell) (Surviving spouse, as mere beneficiary, may not claim exemption under Alabama law in life insurance proceeds upon postpetition death of codebtor. Exemption statute only allows person who "effected" life insurance policy to claim exemption. Although debtor husband paid premiums and arranged for wife to obtain policy, deceased wife was listed as applicant and owner of policy, which was "'best evidence of who effected the insurance policy.'").

In re Strickland, No. 09-41624, 2010 WL 1417030 (Bankr. N.D. Ala. Apr. 2, 2010) (unpublished) (Robinson) (Lump-sum child support payment of $11,207.64 received from Alabama Department of Human Resources after Chapter 13 petition but before confirmation was not exempt under Alabama law, except for $3,000 personal property exemption; support payment belonged to bankruptcy estate rather than child who had become an adult at time of payment.).

In re Majors, No. BK 08-72109-CMS-13, 2008 WL 5330002 (Bankr. N.D. Ala. Dec. 18, 2008) (unpublished) (Stilson) (Alabama homestead exemption is available only if debtor has ownership interest in homestead; debtor's one-half interest in sale proceeds under marriage settlement agreement would not support homestead exemption.).


Middle District of Florida

In re Roscoe, No. 8:13-bk-06517-RCT, 2017 WL 2839496, at *3 (Bankr. M.D. Fla. June 28, 2017) (Colton) (Life insurance proceeds from death of debtor more than 180 days after petition are property of the Chapter 13 estate of surviving spouse and are subject to exemption, but only to the extent allowed by Florida law. “Florida . . . protects the beneficiary of a life insurance policy from creditors of the decedent. The statute does not protect the beneficiary from his own creditors. . . . While the proceeds are exempt from creditors holding claims as against [the decedent] only, the insurance proceeds are not exempt from [the beneficiary’s] own creditors or joint creditors.”).

In re Barrera, No. 8:10-bk-26730-RCT, 2016 WL 6990876 (Bankr. M.D. Fla. Nov. 29, 2016) (Colton) (Post-discharge motion to avoid judgment lien is granted on the basis of waiver when lienholder filed an unsecured proof of claim and accepted partial payment as an unsecured creditor for five years under plan. Lienholder waived its right to foreclose after completion of payments and discharge. Post-discharge § 522(f) motion is granted on the basis of waiver notwithstanding that amount of debt secured by judgment lien exceeded available exemptions.).

In re Barrera, No. 8:10-bk-26730-RCT, 2016 WL 6990876 (Bankr. M.D. Fla. Nov. 29, 2016) (Colton) (Judgment lienholder’s filing of unsecured proof of claim and acceptance of partial payment as an unsecured creditor for five years waived its right to foreclose its lien after completion of payments and discharge; debtor’s post-discharge motion to avoid lien under § 522(f) is granted notwithstanding that debt secured by lien exceeds available exemptions. “[T]he law has long recognized that when a secured creditor elects to be paid as fully unsecured, that creditor’s right to later assert a secured claim is waived. . . . Gerard elected to be paid as an unsecured creditor. . . . Gerard was paid as a fully unsecured creditor for five years, and the chapter 13 case is now finished. These facts demonstrate a voluntary waiver and abandonment of Gerard’s lien rights. . . . Gerard is correct that liens generally survive a bankruptcy discharge. But the cases cited by Gerard merely establish that a discharge of the underlying debt does not impact a secured creditor’s ability to enforce a lien against property after bankruptcy. These cases do not address the enforceability of liens that do not survive bankruptcy because they are avoided or, as here, are waived. . . . It is unfair to other unsecured creditors, who may have pro rata payments artificially reduced based on misleading information. . . . Gerard’s voluntary election to prove its claim as wholly unsecured, and events in the five years since that election, prevent further enforcement of its lien against Debtors’ remaining property.”).

In re McMillan, No. 3:11-bk-5348-JAF, 2015 WL 2147044 (Bankr. M.D. Fla. May 4, 2015) (Funk) (Proceeds from sale of debtor's interest in business are not exempt when debtor did not claim exemption in business—notwithstanding that debtor withdrew money from exempt IRA to invest in the business.).

In re Furey, No. 13-bk-4538-JAF, 2014 WL 2119697, at *4-*5 (Bankr. M.D. Fla. May 22, 2014) (Funk) (Use of portion of proceeds from sale of homestead to purchase new homestead while balance of proceeds held in escrow pending conclusion of state court litigation did not preclude exemption in escrowed proceeds. "[I]t is well established law in Florida, that the proceeds of the sale of a homestead are exempt from the claims of creditors only if a debtor has 'an abiding good faith intention prior to and at the time of the sale of the homestead to reinvest the proceeds thereof in another homestead within a reasonable time.' . . . 'The requirement as to the intention of the seller to reinvest is necessary in order to carry into effect the real, underlying purpose of the homestead exemption. . . .' . . . Florida courts refuse to 'fix . . . an iron clad inflexible period of time and thereby define reasonable period of time.' . . . 'The question whether funds received from the sale of a homestead are invested in another homestead within a reasonable time must be determined from the facts and circumstances of each case.' . . . [T]he Court is unaware of any case law mandating that a person spend the entire amount of sale proceeds protected by homestead exemption at the time of purchasing the new homestead. . . . The Court declines to adopt such a rule and concludes Debtor did not abandon her homestead exemption right to the balance remaining in the escrow account when she was forced to purchase another homestead for a lesser amount.").

In re Didelis, No. 3:14-bk-02966-JAF, 2014 WL 7652894 (Bankr. M.D. Fla. Jan. 15, 2014) (Funk) (Chapter 13 debtors retaining residence received benefit of homestead exemption even when residence is not claimed exempt and cannot also claim $4,000 wildcard exemption under Florida law.).

In re Swetic, 493 B.R. 635 (Bankr. M.D. Fla. July 9, 2013) (Williamson) (Under Florida law, unemployment compensation in debtor's possession at the petition is not exempt; exemption extends only to "benefits due" but not yet received.).

In re Mootosammy, 387 B.R. 291 (Bankr. M.D. Fla. Mar. 31, 2008) (Jennemann) (Debtors get exemption in vehicle using $5,000 personal property exemption plus $1,000 motor vehicle exemption notwithstanding prebankruptcy judgment and levy when bankruptcy stopped sheriff's sale.).

In re Mootosammy, 387 B.R. 291 (Bankr. M.D. Fla. Mar. 31, 2008) (Jennemann) (Partial avoidance of judicial lien is permissible under In re Silvira, 141 F.3d 34 (1st Cir. 1998). $6,000 exemption leaves portion of judicial lien unavoided. Avoided portion of lien becomes unsecured claim. "In effect, the claimed exemption ($6,000) is first applied to the value of the truck ($10,825), then the creditor's lien 'attaches' to the remaining un-exempt value of the property. The creditor receives an unsecured claim against the estate for the avoided portion of the lien.").

In re Khan, No. 6:06-bi-01286-ABB, 2007 WL 707376 (Bankr. M.D. Fla. Mar. 1, 2007) (unpublished) (Briskman) (Van is not an available exemption under Florida law because "professionally prescribed health aid" must be "uniquely suited" for treatment or prevention of disease and van, though used by Down Syndrome child for transportation, is not uniquely designed to accommodate child's needs.).

In re Landahl, 338 B.R. 920, 923 (Bankr. M.D. Fla. Mar. 2, 2006) ("This Court finds compelling, and hereby follows, the reasoning of [In re Kaplan, 331 B.R. 483 (Bankr. S.D. Fla. 2003), In re Virissimo, 332 B.R. 201 (D. Nev. 2005), In re Kane, 336 B.R. 477 (Bankr. D. Nev. 2006)]. . . . Section 522(p) links 'electing' only to the state law exemption scheme, not to the choice between the Federal Exemptions and state law exemptions. . . . The 'result of electing' phrase does not, by its terms, compel the conclusion that Section 522(p) is inoperative in Florida and other opt-out states.").

Southern District of Florida

In re Gamboa, 578 B.R. 661 (Bankr. S.D. Fla. Dec. 21, 2017) (Mark) (Debtor is entitled to Florida homestead exemption notwithstanding that land is classified as agricultural and debtor lives in trailer on land in violation of municipal ordinances.).

In re Crespo, No. 16-24842, 2017 WL 2437240 (Bankr. S.D. Fla. June 5, 2017) (Isicoff) (Failure to follow state law procedural instructions is not an absolute waiver of Florida head of family exemption.).

In re Benzaquen, 555 B.R. 63 (Bankr. S.D. Fla. Aug. 2, 2016) (Isicoff) (Funds in account garnished by bank were exempt because money that funded account came from sale of homestead property owned as tenants by the entireties and the proceeds were intended to be used to buy a substitute homestead; proceeds from sale of homestead property did not lose tenants by the entireties status under Florida law even if account into which those funds were deposited lacked a unity necessary to qualify as a tenants by the entireties account.).

In re Castillo, No. 13-27877-BKC-LMI, 2014 WL 843606, at *1 (Bankr. S.D. Fla. Mar. 3, 2014) (Isicoff) (To "'claim or receive the benefits of a homestead exemption'" for purposes of Florida's wildcard personal property exemption debtor must have an ownership interest in an unclaimed homestead. Debtor's nonfiling spouse owned the home the couple lived in; therefore, the property was not debtor's to exempt. Wildcard personal property exemption was available.).

In re Luban, No. 11-13633-AJC, 2011 WL 4344548 (Bankr. S.D. Fla. Sept. 15, 2011) (unpublished) (Cristol) (Debtors properly claimed Florida homestead and other exemptions, leaving $80 of nonexempt assets; conversion to Chapter 13 was allowed.).

In re Wilson, 393 B.R. 778 (Bankr. S.D. Fla. July 30, 2008) (Isicoff) (Under Florida homestead law, debtor can exempt only portion of building used as residence; part used as business is not exempt. Debtor is not entitled to additional homestead exemption for adult son who lives in part of building but works in business. Exemption in causes of action is not supported by Florida law.).

In re Limperis, 370 B.R. 859 (Bankr. S.D. Fla. May 10, 2007) (Applying §§ 522(m) and 522(p), each Chapter 13 debtor in a joint case may claim $125,000 homestead exemption.).

In re Schlakman, No. 05-36921-BKC-PGH, 2007 WL 1482011 (Bankr. S.D. Fla. Jan. 16, 2007) (Florida homestead exemption only applies to homesteads located in Florida; real property in New York cannot qualify as homestead for debtor domiciled in Florida.).

In re Wayrynen, 332 B.R. 479, 484 (Bankr. S.D. Fla. Oct. 14, 2005) (Friedman) (Limitation in § 522(p), which limits homestead exemption to $125,000 if acquired within 1,215 days, applies in all states, irrespective of whether the state has "opted out" of the federal exemptions. "Since Congress clearly intended for exemption limitations provided under § 522(p)(1) to apply to all debtors, the only plausible reconciliation of the . . . provisions contained in § 522 is that a Florida resident who files for bankruptcy protection, by virtue of (1) having chosen to reside in the State of Florida; (2) having chosen to purchase a residence in the State of Florida; (3) having chosen to make the residence his/her permanent residence; and (4) having availed himself/herself of the relief available under Title 11, United States Code; thereby elects to invoke the exemptions provisions available under Florida law.").


Middle District of Georgia

Milliner v. Action Motors, Inc. (In re Milliner), 554 B.R. 525, 530-32 (Bankr. M.D. Ga. July 22, 2016) (Laney) (Section 522(f) is available after conversion from Chapter 13 to Chapter 7 to avoid judicial lien on personal property that resulted when debtor defaulted on a postpetition car loan, car lender was granted stay relief and deficiency judgment became a lien under Georgia law. Citing § 348(d), “Debtor incurred the debt owed to Action after filing her Chapter 13 petition . . . and before converting . . . . Therefore, the debt is treated as if it occurred prior to the filing of the Chapter 13 petition. . . . Because Action’s judicial lien is a claim, it is subject to § 348(d). . . . Action is the holder of a judicial lien subject to lien avoidance under § 522(f). . . . The operative date for making § 522(f) determinations is the petition date. . . . Conversion does not change this operative date . . . . The Debtor had no equity in nonexempt property at the time of the petition because the nonexempt property was underwater.”).

In re Cersey, 321 B.R. 352 (Bankr. M.D. Ga. Nov. 12, 2004) (Laney) (Where a secured creditor's contract specifically provided for an allocation of payments, the creditor would retain its purchase money security interest rights and the debtors' Chapter 13 plan must provide for the full value of the property to which the PMSI attached.).

Northern District of Georgia

In re Vaughn, No. 13-13062-WHD, 2014 WL 2006594 (Bankr. N.D. Ga. Apr. 30, 2014) (Drake) (Under Georgia homestead exemption statute, debtors may claim 5.5-acre tract of land contiguous to 2 acres on which manufactured home sat when entire 7.5 acres was acquired as one piece of property to be used as residence and was so used.).

In re Valentine, No. 09-69530, 2010 WL 2025574 (Bankr. N.D. Ga. Jan. 21, 2010) (Massey) (Georgia Department of Revenue tax lien was statutory lien, not judicial lien, as defined in § 101(36); statutory tax lien is not avoidable under § 522(f)(1).).

In re Baldwin, No. 05-72883-JB, 2007 WL 7140152 (Bankr. N.D. Ga. July 11, 2007) (Bihary) (With consent of trustee, debtor was allowed to exempt portion of disputed postpetition inheritance, with balance distributed to creditors under confirmed plan. Postpetition creditor claimed to have assignment of inheritance. Dispute over assignment remained in state court.).

In re Robinson, No. 02-17467-WHD, 2006 WL 6593115 (Bankr. N.D. Ga. Oct. 12, 2006) (Drake) (Motion to avoid judicial liens was unnecessary when liens were obtained during pendency of prior Chapter 13 case and were void.).

In re Myles, No. 05-92125-MHM, 2006 WL 6591834 (Bankr. N.D. Ga. Mar. 9, 2006) (Murphy) (Debtor had exemption in future tax refunds under Georgia's wild card exemption; trustee's objection was sustained to extent claimed exemption exceeded $5,600 statutory cap.).

Southern District of Georgia

In re Taylor, 523 B.R. 915 (Bankr. S.D. Ga. Dec. 18, 2014) (Coleman) (Postconfirmation life insurance proceeds would be exempt under Georgia law "to the extent reasonably necessary for the support of the debtor." Amount reasonably necessary calculated by adding funeral costs, postpetition tax payments, payoff of second mortgage and cumulative shortfall of expenses over incomes projected over ten years. Of $98,500 in insurance proceeds, debtor could exempt $79,942.86; remainder of $18,557.14 would be used to pay creditors.).

In re Fullwood, 446 B.R. 634 (Bankr. S.D. Ga. Mar. 17, 2010) (Davis) (Workers' compensation settlement was exempt under Georgia law and not preempted by federal bankruptcy law when Georgia opted out of § 522(d).).

L.  D.C. Circuit

District of Columbia

In re Tyus, No. 09-00003, 2009 WL 3246286 (Bankr. D.D.C. Oct. 3, 2009) (unpublished) (Teel) (Section 522(f) lien avoidance does not apply to statutory liens such as personal property tax lien asserted by IRS.).

In re Owens, No. 07-00547, 2008 WL 607265 (Bankr. D.D.C. Feb. 28, 2008) (unpublished) (Teel) (Amendment of Schedule C is ineffective for failure to include signed declaration page; debtor also failed to specify District of Columbia statute for each exemption.).

In re Gill, No. 07-00358, 2007 WL 2990564 (Bankr. D.D.C. Oct. 11, 2007) (Under amended § 522(b)(3), debtor using state exemptions may also exempt retirement funds to the extent exempt from taxation under designated sections of Internal Revenue Code; under I.R.C. § 7701(j)(1) thrift savings funds are a trust under I.R.C. § 401(a), and § 401 of the IRC is a designated section in Bankruptcy Code § 522(b)(3).).