concurring in part and dissenting in part:
This is an appeal from two formal orders and one informal order in favor of two debtors, for a total of six orders. The first order expressly overruled appellant’s objections to the debtors' claims of exemption to household goods and implicitly avoided appellant’s consential lien on those goods. The second formal order allowed the debtors’ claims of exemption to real property. The panel affirms all of these orders. I concur as to two orders affecting one of the two debtors and dissent as to the rest.
I
The debtors, who are husband and wife, filed a joint petition under Chapter 7. The husband elected the federal exemption alternative, 11 U.S.C. § 522(b)(1), and the wife elected the state exemptions, 11 U.S.C. § 522(b)(2).
As to the first order, the husband claimed one-half of the household goods exempt under 11 U.S.C. § 522(d)(3), valuing this half at $1250, and the wife claimed one-half exempt under California Code of Civil Pro*668cedure § 690.1. When appellant creditor pointed out the necessity of valuing each item separately under 11 U.S.C. § 522(d)(3), the debtors amended their schedules. The husband abandoned his claim of exemption to the household goods and the wife then claimed all household goods, rather than only one-half, exempt under California law.
The debtors also “elected to avoid the lien of [creditor-appellant] on the household goods under 11 U.S.C. § 522(f).” Over appellant’s objections, the debtors’ exemption claims were allowed.
Appellant objected that (1) California law prevents avoidance of the lien and (2) one of two debtors in a joint debtor proceeding may not exempt the property interest of the other joint debtor. (The panel characterizes the second objection as an argument that “Mrs. Dahdah cannot claim an exemption for all of the household goods because Mr. Dahdah technically owns a one-half interest therein.”)
A.
The lien avoidance order is implicit in the order allowing the exemption of household goods. The parties treat it as an express order and I agree that it is properly before us. As to that issue, appellant argues that § 522(f)(2) may avoid a lien only on exempt property and that, under California law, the household goods are not exempt as to one holding a lien. Like the panel, I believe that — for purposes of 522(f) — the question is whether but for the lien the property would be exempt.
The goods are community property (p. 6 appellees’ brief; p. 14 appellant’s brief). They were claimed exempt by Mrs. Dahdah. I concur with the panel’s affirmance of the order allowing her claim of exemption as to the household goods; I also concur in affirming the avoidance of appellant’s lien on the goods as to Mrs. Dahdah. (As I read appellant’s brief, it does not contest these orders either).
I dissent, however, from the panel’s holding to the extent it affirms the trial court’s order exempting the household goods as to Mr. Dahdah and avoiding appellant’s lien on the goods as to him. I defer further discussion of this matter for the moment.
B.
The homestead exemption order, although complicated by the need to adjust for increases in the homestead amount since some of the debt was incurred, permits “stacking” of state and federal exemptions. Thus, Mrs. Dahdah’s state homestead claim for husband and wife as well as Mr. Dah-dah’s federal residential exemption claim for himself were recognized. The order thus added the allowable federal exemption of $7311 claimed by Mr. Dahdah to the allowable $20,000 state exemption claimed by Mrs. Dahdah.
The panel is correct in holding that the rationale developed in In re Ageton, 14 B.R. 833 (9th Cir. BAP 1981) is fully applicable here. Accord, In re Emmerich 19 B.R. 666 (9th Cir. Bkrtcy.App.1982). Because I believe that this panel, as well as the Ageton panel and Emmerich panels, fails to reconcile section 522(b) and 541(a), I dissent and take this opportunity to expand on the views I expressed in Ageton.
C.
One of the issues raised by appellant, which would seem applicable to both real and personal property, was:
Can one debtor in a joint debtor proceeding exempt the property interest of the other joint debtor under Federal or State exemption laws?
The panel answers that question by concluding that, under California law, Mrs. Dahdah may “exempt all necessary household furnishings used by herself and her family,” even though the goods are community property and Mr. Dahdah has an interest in them. I fully concur with that holding, so far as it goes.
I see appellant’s question as going farther. After noting that Mr. Dahdah claimed no exemption, state or federal, in the household goods, appellant argued: “Title 11 does not appear to incorporate any agency principles for the other joint debtor *669to act on his/her behalf. The appellant contends where joint debtors elect to choose distinct and separate exemptions, each must affirmatively subject his vested property rights to the selected statutory provisions ...” P. 15.
Thus the question raised by appellant focuses not so much on Mrs. Dahdah’s rights under state law to claim all of the community property household goods exempt, as on the consequences under federal law of Mr. Dahdah’s failure to claim the goods exempt.
In my judgment, the consequences are considerably different than the panel supposes. What the panel overlooks is the effect of Mr. Dahdah’s bankruptcy case on the household goods in light of 11 U.S.C. § 541(a). Those goods are property of his estate and, in my opinion, may be exempted from his estate by him alone.
As I see it, this panel — just as the panels in Ageton, supra, and Emmerich, supra, and the court of appeals in Matter of Cannady, 653 F.2d 210 (5th Cir. 1981) — fails to acknowledge the changes wrought by the Bankruptcy Code in the relationship between exempt property and property of the estate. Whatever may have been the case under the former Act, property of the estate includes even property that is exempt. It is not enough, then, to hold (as this panel does and as Ageton, Emmerich and Canna-dy did) that property is exempt; it is also necessary to determine whether exempt property is withdrawn from property of the estate.
The panel today does not demonstrate how the household goods are withdrawn from Mr. Dahdah’s estate.
II
The interplay between sections 541 and 522 of the Bankruptcy Code is discussed by the Seventh Circuit Court of Appeals in Matter of Smith, 640 F.2d 888 (7th Cir. 1981):
Section 541 of the Code reflects the policy of the reformers to include all of the property of the debtor in a bankruptcy case ... Section 522 allows the debtor to recover through exemptions some of that property which has become the estate. P. 890
Section 541 represents a major change from the old act, for all property is included in the estate — even exempt property. P. 891
The consequences of the debtor’s failure to claim property exempt is described:
If a debtor does not claim property exempt, as provided for in section 522(1), it is not exempt and the trustee may dispose of it as he sees fit. P. 891-2
“Under the old act,” the court noted, “exempt property was exempt, no matter what the debtor did, because of its very nature.” P. 892.
Professor Vukowich puts the matter thus:
. . . [T]he Commission made a recommendation, which Congress accepted, that the bankruptcy courts have jurisdiction to resolve all disputes regarding exempt property. This goal is realized by first including exempt property as part of the debt- or’s estate. Section 522 then allows debtors to “exempt from property of the estate ” certain assets. (Emphasis in original).
W. T. Vukowich, “Debtor’s Exemption Rights Under the Bankruptcy Reform Act.” 58 North Carolina Law Review 709, 1980.
So too, the Senate and House Reports in commenting on Section 522:
Under proposed section 541, all property of the debtor becomes property of the estate, but the debtor is permitted to exempt certain property from property of the estate under this section.
Senate Report 95-989, 95th Congress, 2d Sess. (1978); House Report No. 95-595, 95th Cong. 1st Sess. (1977), U.S.Code Cong. & Admin.News 1978, p. 5787.
Ill
It cannot be disputed that Mr. Dahdah’s interest in the household goods as well as the family residence became property of the estate that was created by his filing bank*670ruptcy. Having become property of his estate it remained such until and unless it was withdrawn from his estate. As stated by the Bankruptcy Appellate Panel in In re Willard, 15 B.R. 898 (9th Cir. Bkrtcy.App. 1981), “[o]nce the estate is created no interests in estate property remain in the debtor ... other than that which he could exempt back from the estate under 11 U.S.C. § 522.”
Section 522(1) provides the mechanism for exempting back property from the estate. A debtor (or a dependent acting on behalf of a debtor) must list the property he claims exempt. Failure to make the claim amounts to a waiver. In re Smith, supra, p. 891. See also Collier on Bankruptcy 15th ed. ¶ 522.07.
It is also clear that Mrs. Dahdah did not make a claim of either the household goods or of the residential property on behalf of Mr. Dahdah as is permitted by section 522(1). Her only claims of exemption were under state law, while Mr. Dahdah elected federal exemptions. Furthermore, for her to have claimed the household goods on behalf of Mr. Dahdah under section 522(1), Mrs. Dahdah would have had to value each item and that was the only reason Mr. Dahdah abandoned the claim.
Mrs. Dahdah is precluded from asserting any claim on Mr. Dahdah’s behalf under section 522(1) as to the real property by the terms of that section. Since Mr. Dahdah asserted a claim, there was no authority for a dependent to do so on his behalf.
I conclude that Mr. Dahdah’s failure to claim the household goods exempt resulted in a waiver of exemption as to him. The household goods thus remain property of his estate, In re Smith, supra, subject of course to appellant’s lien.
IV
The panel’s holding with respect to adding the state and federal exemptions on the debtors’ real property is also flawed and for the same reasons. Because the home is community property, the analysis here is the same as in my Ageton dissent, which I will not repeat.
I would only add that the Fifth Circuit’s decision in Cannady, supra, is similarly flawed because of its failure to consider the role of section 541. All the Cannady court held was that “Mrs. Cannady may claim federal exemptions under section 522(d) of the Bankruptcy Code despite Mr. Cannady’s choice of state exemptions. . .” As stated in Ageton, I fully agree because of section 522(m) and its legislative history.
Implicit in the Cannady decision is the court’s assumption that the natural result of such different choices is stacking. That result does not follow, however, when section 541 and its implications are considered.
For the foregoing reasons, I respectfully dissent in part.