Ninth Circuit Splits on Avoiding and Preserving a Lien on Exempt Property
The Ninth Circuit dissenter interpreted the statute to mean that the debtor must pay a tax lien twice if the lien was avoided and preserved.
Avoiding a Judgment Lien that Impairs an Exemption Is Theoretical, Ninth Circuit Says
When avoiding a judgment lien under Section 522(f), state law cannot dictate that the amount of the exemption is the amount in effect when the lien was created.
Benchnotes January 2023
Benchnotes By Bradley D. Pack, Aaron M. Kaufman and Christina Sanfelippo Failure to Timely Object to Debtors’ Claim of Exemption in “100 Percent of FMV” of Property Removes the Property from the Estate In In re Masingale, 1 the U.S. Bankruptcy Appellate Panel (BAP) of
Claiming ‘100% of FMV,' Debtors Keep Postpetition Appreciation in Exempt Assets
Ninth Circuit BAP interprets Taylor and Schwab to mean that a trustee cannot revisit the value of an exempt asset if the debtor claimed ‘100% of FMV’ and there was no timely objection.
Differences Between Judicial and Statutory Liens Explained by Judge Heston
Only judicial liens that impair exemptions may be avoided under Section 522(f)(1).
Does Mootness Arising on Appeal Strip the Lower Court Decision of Precedential Value?
Not reaching the merits, the Ninth Circuit nonetheless vacated a BAP decision because the case became moot during the appeal.
Homestead Proceeds May Be Exempt Under State Law but Not Under Section 522(d)(1)
Affirming the bankruptcy court, the Sixth Circuit BAP won’t exempt proceeds from the prepetition sale of a home, even though the proceeds were identifiable and in escrow.