At page 908 Determining when debtor interest in property must exist27 citing casesdiscussing conditions for lien avoidance under § 522(f)
- In re Donald Ray Tinsley & Angela June Tinsley, No. 25-1123 (B.A.P. 9th Cir. June 15, 2026).publishedTo avoid a lien using § 522(f)(1), the debtors must satisfy three conditions: “(1) there was a fixing of a lien on an interest of the debtor in property; (2) the lien impairs an exemption to which the debtor would have been entitled; and (…
- In re Kent C. Robinson & Naomi U. Robinson, No. 25-40508 (Bankr. D. Idaho Dec. 30, 2025).Owen v. Owen, 500 U.S. 305, 310 (1991); Farrey v. Sanderfoot, 500 U.S. 291, 296 (1991); Culver, LLC v. Chiu (In re Chiu), 304 F.3d 905, 908 (9th Cir. 2002). “[I]t is generally accepted that for purposes of § 522(f) lien 5 There are courts…
- In re Emad Aziz Masoud Alfahel & Lina Nadim Fahel, No. 22-1219 (B.A.P. 9th Cir. June 1, 2023).publishedSuch a procedure puts all parties and the court on notice of the basis and effect of an action purporting to dismiss a contested matter. 12 Section 522(f)(1) provides in pertinent part: “the debtor may avoid the fixing of 15 “(1) there was…
- Robert Daniel Cotton, Jr, No. 22-40706 (Bankr. W.D. Wash. Nov. 16, 2021).Section 522(f)(1) provides: 9 Notwithstanding any waiver of exemptions but subject to paragraph (3), the debtor may avoid the fixing of a lien on an interest of the debtor in 10 property to the extent that such lien impairs an exemption to…
- Tirso Castillo Maria v. Deborah Kersting, BAP No. PR 19-046 (B.A.P. 1st Cir. Nov. 19, 2020).unpublished Culver, LLC v. Chiu (In re Chiu), 304 F.3d 905, 908 (9th Cir. 2002) (citations omitted); see also Farrey, 500 U.S. at 295 (ruling that debtor must have had an interest 24 in property at the time the lien attached in order to avoid the fixi…
- In re Joseph M. Gately, No. CC-16-1086-TaFMc (B.A.P. 9th Cir. Nov. 15, 2016).unpublished Culver, LLC v. Chiu 4 (In re Chiu), 304 F.3d 905, 908 (9th Cir. 2002).
- In re Michael Weilert & Genevieve M. De Montremare, No. EC-15-1144-JuDTa (B.A.P. 9th Cir. July 8, 2016).unpublished It states in relevant 17 part: 18 Notwithstanding any waiver of exemptions but subject to paragraph (3), the debtor may avoid the fixing of a 19 lien on an interest of the debtor in property to the extent that such lien impairs an exemptio…
- In re Ramos, 510 B.R. 22 (Bankr. D.P.R. 2014).publishedTo “fix” is to “fasten a liability upon.” In re Chiu, 304 F.3d 905, 908 (9th Cir.2002).
- In re Kathy Ann Green, No. EW-12-1486-PaJuTa (B.A.P. 9th Cir. Aug. 12, 2013).unpublished Notwithstanding the provisions of subdivision (b), a 27 creditor may object to a motion filed under § 522(f) by challenging the validity of the exemption asserted to be 28 impaired by the lien. -8- 1 Additionally, Rule 1009(a)10 allows a d…
- In re Armenakis, 406 B.R. 589 (Bankr. S.D.N.Y. 2009).publishedUnder § 522(f)(1)(A), “a debtor may avoid the fixing of a lien if three requirements are met: (1) there was a fixing of a lien on an interest of the debtor in property; (2) the lien impairs an exemption to which the debtor would have been…
Show 14 more citing cases
- In re Ashcraft, 415 B.R. 428 (Bankr. D. Idaho 2008).publishedThe Ninth Circuit has held that, “under § 522(f)(1), a debtor may avoid a lien if three conditions are met: (1) there was a fixing of a lien on an interest of the debtor in property; (2) such lien impairs an exemption to which the debtor w…
- Unifund C.C.R. Partners v. Sheckard (In re Schekard), 394 B.R. 56 (E.D. Pa. 2008).published In re Chiu, 304 F.3d 905, 908 (9th Cir.2002); see also In re Vincent, 260 B.R. 617, 621 (Bankr.D.Conn.2000) and In re Orr, 304 B.R. 875, 877 (Bankr.S.D.Ill.2004).
- In re Mootosammy, 387 B.R. 291 (Bankr. M.D. Fla. 2008).publishedIn re Chiu, 304 F.3d 905, 908 (9th Cir.2002); 125 A.L.R.
- Anderson v. Star Rentals, Inc. (In re Anderson), 378 B.R. 296 (Bankr. W.D. Wash. 2007).publishedIn re Chiu, 304 F.3d 905, 908 (9th Cir.2002); see also, In re Wilding, 475 F.3d 428, 432-33 (1st Cir.2007) (where debtors were allowed to seek avoidance of a judicial lien even though the lien was satisfied before the debtors moved for suc…
- Loanstar Mortg. Servs., LLC. v. Salven (In re Cox), 349 B.R. 4 (Bankr. E.D. Cal. 2006).publishedIn re Chiu, 304 F.3d 905, 908 (9th Cir.2002).
- In re Orr, 304 B.R. 875 (Bankr. S.D. Ill. 2004).published Chiu, 304 F.3d at 908 (emphasis in original) (quoting Vincent, 260 B.R. at 620-21).
- In re Mailhot, 301 B.R. 774 (Bankr. D.R.I. 2003).publishedCulver, LLC v. Chiu (In re Chiu), 304 F.3d 905, 908-09 (9th Cir.2002).
- Robert Lawrence Moody, Jr., No. 19-33968 (Bankr. N.D. Ohio Sept. 30, 2021).See In re Chiu, 304 F.3d 905, 908 (9th Cir. 2002); In re Jerew, 415 B.R. 303, 306 (Bankr. N.D.
- Michael Griffith v. Gloria Wells, No. 17-60079 (9th Cir. Aug. 21, 2018).unpublished(discussing conditions for lien avoidance under § 522(f))
- Susan Polk v. Cnty. of Contra Costa, 692 F. App'x 919 (9th Cir. 2017).unpublished(under § 522(f), the lien to be avoided must be a judicial lien)
- In re Sheckard, 386 B.R. 118 (Bankr. E.D. Pa. 2008).published(specifieally considering and rejecting many of the court decisions pressed by Unifund as supporting its position)
- Wilding v. CitiFinancial Consum. Fin. Servs., Inc., 475 F.3d 428 (1st Cir. 2007).published See Culver, LLC v. Chiu, 304 F.3d 905, 908 (9th Cir.2002).
- Glastonbury Landowners Ass'n v. O'Connell, No. 2:20-cv-00019 (D. Mont. Sept. 23, 2020). A debtor who is entitled to a homestead exemption may avoid liens on the property covered by the exemption.** A debtor is entitled to “‘avoid a lien if... (1) there was a fixing of a lien on an interest of the debtor in property; (2) such…
- In re Nashat Naoom & Manal Naoom, No. SC-16-1066-JuFY (B.A.P. 9th Cir. Feb. 1, 2017).unpublished
It is well-established that § 522 is to be interpreted 23 liberally in favor of debtors in order to facilitate their ‘fresh start.’
- MacKenzie v. Schreiber, No. 2:20-cv-01993 (D. Ariz. June 4, 2021).(It is well-established that § 522 is to be interpreted 23 liberally in favor of debtors in order to facilitate their ‘fresh start.’)
- Debra Wilson v. James Rigby, 909 F.3d 306 (9th Cir. 2018).published(It is well-established that § 522 is to be interpreted liberally in favor of debtors in order to facilitate their ‘fresh start.’)
At page 907 Determining mootness of lien avoidance after property sale1 citing case“the debtor may avoid the fixing of a judicial lien 12 on an interest of the debtor in property to the extent that such 13 lien impairs an exemption to which the debtor would have been 14 entitled under 522(b) . . . .”
- In re Fix, 542 B.R. 502 (Bankr. D. Mont. 2015).publishedIn re Chiu, 304 F.3d 905, 907 (9th Cir.2002); In re Quane, 16 Mont.
“it is well-established that 522 is to be interpreted 23 liberally in favor of debtors in order to facilitate their 'fresh start.”
- MacKenzie v. Schreiber, No. 2:20-cv-01993 (D. Ariz. June 4, 2021).“it is well-established that 522 is to be interpreted 23 liberally in favor of debtors in order to facilitate their 'fresh start.”
- Debra Wilson v. James Rigby, 909 F.3d 306 (9th Cir. 2018).published“it is well-established that 522 is to be interpreted liberally in favor of debtors in order to facilitate their 'fresh start.”
Other citing cases
- Lynn E. Feldman v. Buffenmeyer, No. 20-00018 (Bankr. E.D. Pa. July 7, 2021).
- Wilding v. CitiFinancial Consum. Fin. Servs., Inc. (In re Wilding), 332 B.R. 487 (B.A.P. 1st Cir. 2005).published
- In re Fairchild, 285 B.R. 98 (Bankr. D. Conn. 2002).published
v.
Thomas Kai-Ming Chiu; Linda Luk Chiu, Appellees
OPINION
MAHAN, District Judge.Thomas Kai-Ming Chiu and Linda Luk Chiu (hereinafter “debtors”) filed a voluntary petition under Chapter 7 on July 25, 1995. Debtors scheduled their interest in a piece of residential real property (herein[*907] after “the subject property”). Culver [1] had a judicial lien on the subject property in the amount of $42,725.57. Debtors also claimed a homestead exemption on the subject property. However, during the bankruptcy proceedings, debtors did not take action to avoid the- Culver lien under 11 U.S.C. § 522(f)(1). The debtors were granted a discharge on December 4, 1995, and the case was closed on December 15, 1995.
In December 1999, debtors sold the subject property and were notified that the lien amount would have to be paid or $48,000 would be withheld from the sale proceeds. The sale of the subject property was recorded on January 14, 2000, with the escrow company holding approximately $48,000 pending a judicial determination of debtors’ liability on the lien.
On January 20, 2000, debtors filed a motion to reopen their bankruptcy case, which was granted. Debtors also filed a motion to avoid the judicial lien under 11 U.S.C. § 522(f)(1), claiming that the lien impaired their homestead exemption. Cul-ver opposed the motion.
The bankruptcy court determined that the lien avoidance related back to the date of the filing of the bankruptcy petition and granted the motion to avoid the lien on May 24, 2000. Culver failed to seek a stay, so debtors recorded the order of the bankruptcy court. The escrow company, relying on the order, disbursed the remaining proceeds to debtors.
Culver appealed the bankruptcy court’s decision to the Bankruptcy Appellate Panel (BAP). The BAP affirmed the bankruptcy court’s decision. Culver, LLC v. Chiu (In re Chiu), 266 B.R. 743 (9th Cir. BAP 2001). Culver now appeals.
DISCUSSION
I. Prior to addressing the merits of the case, we must determine whether it is moot. Debtors contend that the case is moot because the bankruptcy court’s order was recorded and relied on by third parties. The escrow company disbursed the $48,000 it had been holding, and neither the, escrow company nor the buyers are parties to this action. Debtors assert that because third parties have relied on the lower court’s decision, reversing the decision without their participation would be unwieldy and unfair.
Debtors’ mootness argument is without merit. The buyers of the house were not bona fide purchasers because they were aware of the lien and expressly took title subject to the lien. While the escrow company may have relied upon the bankruptcy court’s order in disbursing the funds, its good-faith reliance does not affect Culver’s lien. Nothing in the record suggests that this court cannot provide effective relief by reinstating Culver’s lien on the subject property.
II. The crux of Culver’s argument is that the lien-avoidance provision of the Bankruptcy Code does not allow a debtor who no longer has an interest in property to avoid a judicial lien on that property. 11 U.S.C. § 522(f)(1) provides that a debtor:
may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is-
(A) a judicial lien....
[*908] The purpose of § 522(f)(1) is to provide relief for an overburdened debtor. Farrey v. Sanderfoot, 500 U.S. 291, 297-98, 111 S.Ct. 1825, 1829-30, 114 L.Ed.2d 337 (1991) (citing H.R.Rep. No. 95-595, at 126-27 (1977), U.S. Code Cong. & Admin. News 5963, 6087-88). “[A] principal reason Congress singled out judicial liens was because they are a device commonly used by creditors to defeat the protection bankruptcy law accords exempt property against debts.” Id.
We have previously determined that “under § 522(f)(1), a debtor may avoid a lien if three conditions are met: (1) there was a fixing of a lien on an interest of the debtor in property; (2) such lien impairs an exemption to which the debtor would have been entitled; and (3) such lien is a judicial lien.” Estate of Catli v. Catli (In re Catli), 999 F.2d 1405, 1406 (9th Cir.1993). Culver concedes that the second and third prongs of this test are met, but contends that the first prong is not met because debtors did not have an interest in the property when they brought the motion to avoid the lien. Debtors do not dispute that they had no interest in the property at the time they moved to avoid. They argue, however, that to satisfy § 522(f)(1), they need only have had an interest in the property at the time they filed for bankruptcy or, in the alternative, at the time the lien attached.
Thus the issue for this court to resolve is whether, for purposes of applying § 522(f)(1), the debtor must have an interest in the exempt property at the time of moving to avoid the lien, at the time of filing for bankruptcy, or at the time when the lien “fixed,” or “attached.” This question has not been squarely addressed by this court. Several lower courts have addressed the issue, with varying results. Compare In re Vincent, 260 B.R. 617 (Bankr.D.Conn.2000) (time of fixing of the lien), and Carroll v. Mem’l Med. Ctr., Inc. (In re Carroll), 258 B.R. 316 (Bankr.S.D.Ga.2001) (time of filing of the bankruptcy petition), with In re Vitullo, 60 B.R. 822 (D.N.J.1986) (time of motion to avoid); In re Sizemore, 177 B.R. 530 (Bankr.E.D.Ky.1995) (same); Riddell v. N.C.R. Universal Credit Union (In re Riddell), 96 B.R. 816 (Bankr.S.D.Ohio 1989) (same); (In re Kudrna), Kudrna v. Credit Bureau, Inc., 173 B.R. 934 (Bankr.D.Idaho 1994) (same); In re Carilli, 65 B.R. 280 (Bankr.E.D.N.Y.1986) (same); In re Montemurro, 66 B.R. 124 (Bankr.E.D.N.Y.1984) (same).
The Supreme Court interpreted § 522(f)(1) in Farrey as requiring that the debtor already have an interest in the property at the time that the lien attached. 500 U.S. at 299. The Court explained that § 522(f)(1) permits the avoidance of the “fixing of a lien on an interest of a debtor” only if the “fixing” took place after the debtor acquired its interest. Id. The Court found the critical inquiry to be whether the debtor possessed the interest to which the lien fixed, before it fixed. Id.
The application of the time-of-fixing rule to this case is most consistent with Farrey. We therefore agree with Vincent that the debtor need not have an interest in the property at the time it moves to avoid:
The operation of Section 522(f) is not to avoid a “lien”, per se, although that is its practical effect in most cases. Rather, by its terms, Section 522(f) provides for the avoidance of the “fixing” of certain liens. To “fix” means to “fasten a liability upon”. Thus, Section 522(f) operates retrospectively to annul the event of fastening the subject lien upon a property interest. Accordingly, the fundamental question of ownership is whether the property encumbered by the subject lien was “property of the debtor” at the time of the fixing of that lien upon such property.
[*909] Vincent, 260 B.R. at 620-21 (citation omitted).
It is undisputed that debtors owned the subject property before the lien fixed upon it. Culver concedes that the lien impaired an exemption to which debtors were entitled. Because debtors satisfied the requirements of § 522(f)(1), they were entitled to avoid the hen.
AFFIRMED.
. Culver is successor in interest to Heritage Square. Heritage Square recorded a judicial lien on October 14, 1993, for a judgment it obtained against debtors for the breach of a commercial lease.