Opinion
No. 205-5-80-00794
March 25, 1980
Bankruptcy Reform Act — Exemptions — Judicial Liens — Avoidance of Liens
A debtor may avoid the fixing of a judicial lien to the extent that it impairs an exemption to which he is otherwise entitled. Further, the judicial lien on such exempt property may be avoided to the extent it impairs the exemption no matter when the lien has been filed. See Sec. 522(b) at ¶ 9203, Sec. 522(d)(1) at ¶ 9206 and Sec. 522(f) at ¶ 9218.
[Digest of Opinion]
Various creditors of the debtor had filed judgment liens and an attachment lien against the real estate of the debtor more than 90 days prior to the commencement of the bankruptcy case. The real property was the debtor's residence which he occupied with his children and on which the debtor was entitled to a $7,900.00 exemption under Sections 522(d)(1) and (5) of the Bankruptcy Code. The real estate was worth just about the total of the valid mortgages on the property and the unpaid taxes plus the debtor's exemption such that the judgment liens and attachment lien were solely upon the debtor's exempt interest in the real estate.Under Section 522(f) of the Bankruptcy Code, the debtor may avoid the fixing of a judicial lien on an interest of the debtor in property to the extent that the lien impairs an exemption to which the debtor would have been entitled under Section 522(b). Under Section 101(27) of the Code, all of the judgment liens and the attachment lien are judicial liens.
The court noted that Section 522(f) does not provide for any limitation of time within which a judicial lien may be avoided. Therefore, the court concluded that under Section 522(f), the debtor could avoid the judicial liens on his residence because such liens impaired an exemption to which the debtor was entitled.