(concurring, concurring in result, and dissenting):
T 40 I concur in the main opinion respecting the purchase money mortgage and equitable subordination issues. I concur in the result respecting the circularity of liens issue; 1 however, I dissent on the issue of the allowable homestead exemption.
T41 In my view, under the facts of this case, the amount of the allowable homestead exemption was determined at the time of filing and in accordance with the amounts set out in the declaration of homestead.2 Here, the Millers apparently filed their declaration of homestead shortly after, and probably as a result of, Transworld's judgment. Between the time that the Millers filed their declaration of homestead and the time that this matter was tried, the statutory homestead allowance was increased by the Legislature. Compare Utah Code Ann. § 78-28-8(2) (Supp.2000), with Utah Code Ann. § 78-283-3(1) (1996), and Utah Code Ann. § 78-283-3(1) (1991).
142 By filing their 1991 declaration of homestead, the Millers were immediately protected from the Transworld judgment lien. "A homestead is exempt from judicial *615lien and from levy, execution, or foreed sale." Utah Code Ann. § 78-23-38) (8upp.2000) (emphasis added). The filing of the declaration immediately exempted the amount set out in the declaration from Transworld's lien, regardless of whether a levy, execution, or forced sale ever occurred. Here, the Millers could have waited to declare their homestead exemption up to the date of sale of the property; however, they chose not to. Instead, they elected to immediately exempt the allowable homestead from Transworld's lien.
143 In order to exempt property from judicial lien, the statute requires the filing of a "signed and acknowledged declaration of homestead." Utah Code Ann. § 78-23-4(1) (1996). The Utah Exemptions Act does not specifically provide for sequential declarations of the homestead exemption. See id. §§ 78-28-1 to-15.
T44 Further, while it is true that the deadline for filing a declaration of homestead is the sale of the property, it is illogical to tie the exemption amount to a sale which may or may not occur. This approach suggests that a sale of the property and generation of the sales' proceeds is a precondition to realization of the homestead by the debtor.
145 "[The purpose of the homestead exemption of Article XXII, Section 1 of the Utah Constitution is to protect 'the dependent and helpless' and to insure such persons shelter and support free from fear of forced sale." Sanders v. Cassity, 586 P.2d 423, 425 (Utah 1978) (citation omitted)3 Thus, although the declaration can be filed or served any time prior to sale, see id., the amount of the exemption should not be determined as of the time of sale, because a sale may never take place. See Utah Code Ann. § 78-23-4(5) (1996) ("Property that includes a homestead shall not be sold at execution if there is no bid which exceeds the amount of the declared homestead exemption.").
1 46 In addition, the 1991 declaration gave constructive notice to all interested parties of the scope of Transworld's lien on the real property. To the extent Transworld or other creditors may have relied on the amount stated in the declaration, the Millers should be bound by that amount.
¶ 47 Finally, the Millers cannot rely on the amendments to the exemption amount in Utah Code Ann. § 78-23-38 (Supp.2000) because when statutory amendments are "substantial and substantive," and not merely procedural, then "retroactive application is not appropriate." Thronson v. Thronson, 810 P.2d 428, 432 (Utah App.1991). If the "vested rights" given by a statute have been enlarged, then the amendment cannot be considered procedural. Smith v. Cook, 803 P.2d 788, 792 (Utah, 1990). The changes made by the Legislature to the Utah Exemptions Act since 1991 significantly increase the allowable homestead4 Thus, the amendments to the exemption amount in Utah Code Ann. § 78-28-38 (Supp. 2000) are not merely procedural, and "retroactive application is not appropriate." Thronson, 810 P.2d at 432.
T48 Accordingly, I would remand to the trial court for the limited purpose of determining the amount claimed by the Miller's in the 1991 declaration of homestead.
. While I concur in the result regarding the circularity of liens issue, I believe it is unnecessary for this court to address the allocation of proceeds if a sale of the property ever occurs. Once it has been determined that no circularity of liens exists, the rules of priority will control the respective positions of the parties.
. The Miller's actual 1991 declaration of homestead was apparently not made part of the record at trial or on appeal.
. Although the homestead exemption, in general, is to be construed in favor of the debtor, see Russell M. Miller Co. v. Givan, 7 Utah 2d 380, 325 P.2d 908, 909 (1958), this line of cases does not apply here because Homeside, as a result of our decision, effectively succeeds to the Miller's exemption amount.
. Assuming the Millers did not have as many as sixty children in 1991. See, Utah Code Ann. § 78-23-3(1) (1991).