Garran v. SMS Financial V, LLC (In Re Garran)

          United States Court of Appeals
                      For the First Circuit

No. 02-2033

                      IN RE DAVID G. GARRAN,
                              Debtor.


                         DAVID G. GARRAN,
                            Appellant,

                                v.

                SMS FINANCIAL V, LLC, ASSIGNEE OF
                 CITIZENS BANK OF MASSACHUSETTS,
                            Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

     [Hon. Edward F. Harrington, Senior U.S. District Judge]


                              Before

                        Selya, Circuit Judge,
                   Stahl, Senior Circuit Judge,
                     and Lipez, Circuit Judge.



     William G. Billingham, with whom Billingham & Marzelli were on
brief, for appellant.
     Kevin P. McRoy, with whom Thomas E. Pontes and Wynn & Wynn,
P.C. were on brief, for appellee.



                          July 28, 2003
            LIPEZ, Circuit Judge.      In this bankruptcy appeal arising

from a Chapter 7 proceeding, we are asked to determine whether two

Massachusetts homestead exemptions can be "stacked" to permit a

double exemption for a debtor who claims on the basis of such

stacking that a judicial lien impairs the value of his exemption.

Citizens Bank    of   Massachusetts      holds   a   judicial   lien   on   the

property owned by David Garran, the debtor in this petition, and

his wife.    At issue is whether David Garran is entitled to claim

both his $300,000 exemption as a disabled person, pursuant to Mass.

Gen. Laws Ann. ch. 188, § 1A (West Supp. 2003), and the $300,000

exemption of his non-debtor spouse, pursuant to Mass. Gen. Laws

Ann. ch. 188, § 1 (West Supp. 2003).             If Garran can "stack" the

exemptions and claim, in total, the $600,000 homestead exemption,

he will be able to avoid entirely Citizens' judicial lien on the

property.     Applying   the   plain     language    of   the   Massachusetts

statutes, we affirm the decision of the district court affirming

the bankruptcy court's denial of Garran's motion to avoid the

judicial lien.

                                    I.

            The material facts of this case are undisputed.             David

Garran owns a single-family home in Hingham, Massachusetts, in

Plymouth County, as a tenant by the entirety1 with his wife,


     1
       A tenancy by the entirety is a "joint tenancy that arises
between husband and wife when a single instrument conveys realty to
both of them but nothing is said in the deed or will about the

                                    -2-
Judith.    In February 1996, David Garran executed and delivered a

promissory note for $50,000 to the United States Trust Company.

Three years later, Garran executed another promissory note to the

United States Trust Company in the amount of $5,000. Citizens Bank

of Massachusetts ("Citizens") is the successor in interest to the

notes.

            In August 2000, Citizens commenced an action against

David Garran in the Superior Court of Massachusetts subsequent to

Garran's default under the two promissory notes.       Citizens also

obtained a writ of attachment against the Hingham property on

August 18, 2000, and perfected that writ on August 29, 2000, by

recording it in the Plymouth County Registry of Deeds.     After the

court entered judgment in favor of Citizens on the promissory

notes, Citizens recorded the execution on the Hingham property in

the amount of $59,697.50.2    On August 9, 2000, Garran recorded a

declaration of homestead on the Hingham property as a disabled

person pursuant to Mass. Gen. Laws ch. 188, § 1A.      Judith Garran3

later recorded a declaration of homestead on the same property

pursuant to Mass. Gen. Laws ch. 188, § 1.


character of their ownership."    Black's Law Dictionary 1477 (7th
ed. 1999).
     2
       The judgment included the $55,000 value of the promissory
notes plus interest. On April 2, 2001, the date Garran filed for
bankruptcy, the value of Citizens' lien on the property was
$62,739.79.
     3
         Judith Garran is not a debtor in this case.

                                 -3-
            On April 2, 2001, Garran filed a Chapter 7 petition for

bankruptcy.      In Schedule A (Real Property) of his petition, he

listed the Hingham property as having a value of $560,000.                     In

Schedule    C    (Property   Claimed     as    Exempt),    Garran   listed    two

homestead exemptions under Massachusetts state law -- his § 1A

exemption for $300,000 and his wife's § 1 exemption for $300,000 --

thereby seeking a total exemption of $600,000 on the Hingham

property.

             Citizens filed an Objection to the Debtor's Claim of

Exemption, arguing that Garran could claim only one of the state

law homestead exemptions.          Garran filed a motion under 11 U.S.C. §

522(f) (2003) seeking to avoid Citizens' judicial lien, claiming

that it impaired his exemption in property.               Citizens objected to

the motion.      The bankruptcy court ruled that Garran could claim

only the later filed homestead exemption of his wife, thereby

limiting him to a $300,000 homestead exemption.              In re Garran, No.

01-12676-JNF, slip op. at 10 (Bankr. D. Mass. Mar. 15, 2002).

Concluding      that   Citizens'    judicial    lien   did   not    impair   this

$300,000 exemption, the court denied Garran's motion to avoid the

lien.   Id. at 12.      On appeal, the district court affirmed.          Garran

v. Citizens Bank of Mass. (In re Garran), No. 02-10833-EFH, slip.

op. at 3 (D. Mass. July 10, 2002).            Garran now appeals.




                                       -4-
                                          II.

            We review the decision of the bankruptcy court directly,

affording de novo review to the court's resolution of the legal

question presented.         Rutanen v. Baylis (In re Baylis), 313 F.3d 9,

16 (1st Cir. 2002).

            A debtor is permitted to exempt a limited amount of

certain property from the bankruptcy estate pursuant to 11 U.S.C.

§ 522(b) (2003) to protect those types of assets from creditors.

As part of the bankruptcy petition, a debtor must file a list of

property claimed as exempt.            11 U.S.C. § 522(l); Bank. R. 4003(a).

In   Massachusetts,        a    debtor    can    choose      between   the    federal

exemptions -- those listed in § 522(d) -- or the exemptions

enumerated in state law.            Patriot Portfolio v. Weinstein (In re

Weinstein),    164       F.3d   677,     679   (1st   Cir.    1999);   see     also   §

522(b)(2)(A) (permitting a debtor to select either federal or state

exemptions).    Garran chose the state exemptions.

            Along with exemptions for certain types of personal

property,     Massachusetts        law     has    established       two      homestead

exemptions.    Under § 1 of the Homestead Act, any owner of a home

may acquire "[a]n estate of homestead to the extent of $300,000 in

the land and buildings."               Mass. Gen. Laws Ann. ch. 188, § 1.

Entitlement    to    a    homestead      exemption    is     not   automatic     under

Massachusetts law.         An owner of property must file the necessary

declaration of homestead before the exemption can be claimed.                      Id.


                                          -5-
§ 2. Garran's wife filed the necessary declaration of homestead as

an owner of the Hingham property.          Only one member of a family is

permitted to file a declaration under § 1, and the filing of any

member of a family protects the entire family.          Id. § 1.

           The other type of homestead exemption is available only

to the elderly and disabled.          According to § 1A, "[t]he real

property or manufactured home of . . . a disabled person, as herein

defined,   shall    be   protected   against     attachment,   seizure   or

execution of judgment to the extent of $300,000." Garran filed the

necessary declaration of homestead under § 1A.          A declaration of

homestead under this section is available only to individuals; a

declaration filed by one member of a family will not protect the

non-filing members of that family.           The parties do not dispute

Garran's disability status.

           Once property is exempted under § 522(b), it is immunized

from creditors while the outstanding debts are being discharged in

bankruptcy. See Owen v. Owen, 500 U.S. 305, 308 (1991) (explaining

the concept of exemptions).     A bankruptcy discharge, though, voids

only those judgments "to the extent that such judgment is a

determination of the personal liability of the debtor."            11 U.S.C.

§ 524(a)(1).       Since a judicial lien attached to property is a

liability in rem, it is not routinely discharged at the conclusion

of the bankruptcy case.      Wrenn v. Am. Cast Iron Pipe Co. (In re

Wrenn), 40 F.3d 1162, 1164 (11th Cir. 1994).            However, because


                                     -6-
judicial liens may interfere with the "fresh start" the Bankruptcy

Code seeks to give debtors, such liens may be avoidable under a

separate provision of the Bankruptcy Code, § 522(f).

          That provision permits a debtor to avoid a judicial lien

to the extent it "impairs an exemption to which the debtor would

have been entitled."     11 U.S.C. § 522(f)(1).   Pursuant to this

section, the debtor can avoid a particular judicial lien if, in

order to satisfy it, he would have to use assets he is otherwise

entitled to set aside from the bankruptcy estate as exemptions.

Section 522(f)(2) establishes a formula for determining whether a

lien impairs an exemption:

          [A] lien shall be considered to impair an
          exemption to the extent that the sum of --
                 (i) the lien;
                 (ii) all other liens on the property;
                 and
                 (iii) the amount of the exemption that
                 the debtor could claim if there were no
                 liens on the property;
          exceeds the value that the debtor's interest
          in the property would have in the absence of
          any liens.

Id. § 522(f)(2)(A).      See Snyder v. Rockland Trust Co. (In re

Snyder), 279 B.R. 1, 4 (B.A.P. 1st Cir. 2002).         Avoidance of

judicial liens under § 522(f) is not an "all-or-nothing matter"; a

debtor is permitted to avoid only that portion of the judicial lien

that infringes upon the exemption to which he is entitled.     East

Cambridge Savings Bank v. Silveira (In re Silveira), 141 F.3d 34,

35-36 (1st Cir. 1998).    If the judicial lien does not impair the


                                -7-
exemption -- if the value of the property is greater than the sum

of the liens attached to it and the exemption -- then the debtor

cannot avoid the lien and it will remain attached to the property.

          Garran filed a motion to avoid Citizens' judicial lien on

the Hingham property in its entirety on the ground that it impaired

the homestead exemptions to which he was entitled.   At the time the

motion was filed, Citizens' lien on the property (component (i) of

the formula) was valued at $62,739.79.     In addition to this lien,

there were two mortgages on the property with a combined value of

$194,857.91 (component (ii) of the formula). In order to determine

whether the sum of the liens and the exemptions exceeds the value

of the property, we must determine "the amount of the exemption

that the debtor could claim."    § 522(f)(2)(A)(iii).   This is the

single issue of dispute in this appeal.4

                                III.

          As the Massachusetts courts have not yet addressed the

interplay between a § 1 exemption declared by a non-debtor spouse

and a § 1A exemption declared by a debtor, we must predict how the

Massachusetts Supreme Judicial Court would interpret the statute.

Caron v. Farmington Nat'l Bank (In re Caron), 82 F.3d 7, 9 (1st

Cir. 1996).   Because homestead laws are "designed to benefit the



     4
       Whether Garran is entitled to a $600,000 or a $300,000
exemption will determine whether Citizens' lien is avoided entirely
or not at all. The table in the Appendix outlines the differing
calculations the parties propose under § 522(f)(2)(A).

                                -8-
homestead declarant and his or her family by protecting the family

residence from the claims of creditors," Massachusetts courts have

"construed the State homestead exemptions liberally in favor of

debtors."    Shamban v. Masidlover, 705 N.E.2d 1136, 1138 (Mass.

1999).   Nevertheless, liberal construction does not mean that

courts can extend the protection of the homestead exemptions when

doing so would contradict the "plain and unambiguous" language of

the statute.     See id. at 1139 (finding the debtor's homestead

declaration invalid for failure to file the proper documentation as

the statute explicitly required).      Consequently, we must turn to

the words of the statute in question.

            Section 1 states, in pertinent part:

            An estate of homestead to the extent of
            $300,000 in the land and buildings may be
            acquired pursuant to this chapter by an owner
            or owners of a home or one or all who
            rightfully possess the premise by lease or
            otherwise and who occupy or intend to occupy
            said home as a principal residence. . . .

            . . . .

            For the purposes of this chapter, an owner of
            a home shall include a sole owner, joint
            tenant, tenant by the entirety or tenant in
            common; provided, that only one owner may
            acquire an estate of homestead in any such
            home for the benefit of his family. . . .

Mass. Gen. Laws Ann. ch. 188, § 1.     Section 1A states, in pertinent

part:

            The real property or manufactured home . . .
            of a disabled person, as herein defined, shall
            be protected against attachment, seizure or

                                 -9-
               execution of judgment to the extent of
               $300,000; provided, however, that such person
               has filed [a] . . . disabled person's
               declaration of homestead protection . . . .

               Each individual having an ownership interest
               in the real property or manufactured home
               which serves as that individual's principal
               residence   and   who  qualifies   under   the
               provisions of this section shall, upon filing
               of an elderly or disabled person's declaration
               of homestead protection, be eligible for
               protection of such ownership interest up to a
               maximum amount of $300,000 per individual,
               regardless of whether such declaration is
               filed individually or jointly with another.

               . . . .

               The . . . disabled person's estate or claim of
               homestead shall be terminated . . . pursuant
               to section two.

Id.   §   1A    (emphasis   added).     Regarding   the   acquisition   and

termination of homesteads, the pertinent part of section two

states:

               To acquire an estate of homestead in real
               property, the fact that it is designed to be
               held as such shall be set forth in the deed of
               conveyance by which the property is acquired;
               or, after the title has been acquired, such
               design may be declared by a writing duly
               signed, sealed and acknowledged and recorded
               in the registry of deeds for the county or
               district in which the property is situated. .
               . . The acquisition of a new estate or claim
               of homestead shall defeat and discharge any
               such previous estate.

Id. § 2 (emphasis added).

               Citizens argued before the bankruptcy court that § 2

ensures that no individual can claim more than one homestead


                                      -10-
exemption by stating that the acquisition of a new claim of

homestead    defeats        and    discharges      a   previously-filed       claim   of

homestead.    The court agreed with Citizens, holding that the plain

language     of    §    2   meant    that       Garran's   §    1A     declaration    and

corresponding homestead exemption was defeated and discharged by

his wife's subsequent § 1 declaration.                  We agree that this is the

proper reading of the statutory language.

             Garran's wife filed a declaration of homestead under § 1

on February 21, 2001.          The declaration of homestead under § 1 is an

acquisition of a homestead "for the benefit of [the] family."                         Id.

§ 1. Therefore, by his wife's filing of a § 1 declaration, Garran,

as her spouse and member of her family, "acquired" a homestead on

February 21, 2001.          See In re Roberts, 280 B.R. 540, 547 (Bankr. D.

Mass. 2001) (recognizing that a "declaration filed under subsection

1 protects even the non-filing debtor").                       Section 2 states that

"the acquisition of a new . . . claim of homestead" discharges any

such previous estate.              Therefore, Garran's acquisition of a new

homestead on February 21, 2001, through his wife's filing, defeated

his prior declaration of homestead filed pursuant to § 1A on August

9,   2000.        The   fact      that   the    homesteads      were    acquired   under

different sections is irrelevant, as § 1A states explicitly that a

homestead    declared        under       that    section   "shall      be   terminated"

pursuant to § 2, the same provision that governs the acquisition

and discharge of § 1 homesteads.                 Even though the language of § 2


                                           -11-
existed prior to the enactment of § 1A, the specific invocation of

§ 2 in the text of § 1A indicates that the drafters were aware of

the existing termination procedures and intended them to apply to

the newly amended portions of the statute.

            Garran suggests that § 2 does not apply when a new

declaration of homestead is filed on the same property -- that an

"acquisition of a new estate or claim of homestead" means a "new

estate or claim of homestead on a new home or piece of property."

Certainly    §    2   would   have   the   effect      of   discharging    a   prior

declaration of homestead on an old home when a Massachusetts

resident purchases a new home and files a new declaration of

homestead.       But there is nothing in the statute that limits § 2 to

a new home purchase situation.             Given that Judith Garran had not

previously declared a homestead on the Hingham property, her filing

under § 1 was a new "claim of homestead" under § 1, just as it

would have been if she had purchased a new home.

             Alternatively, Garran argues that the statutes must be

interpreted as permitting a disabled person to stack the § 1 and 1A

exemptions because the purpose of enacting § 1A was to provide

additional protection in bankruptcy to those who qualify for a § 1A

exemption.       But at the time of the enactment of the amendment, § 1A

did provide an extra benefit to disabled debtors.                    Prior to the

2000 amendments to the homestead statutes, §§ 1 and 1A provided

different    levels     of    exemptions    --   the    §   1   general   homestead


                                      -12-
exemption provided protection only up to $100,000 while the § 1A

exemption provided a $200,000 exemption.       Mass. Gen. Laws Ann. ch.

188, §§ 1, 1A (West 1991).    The amendments in 2000 both raised the

monetary value and equalized the §§ 1 and 1A exemptions. Moreover,

§ 1A still provides protections unavailable under § 1.           Under § 1A,

a debtor retains his homestead exemption even given a judgment

against him based on fraud, mistake, duress, undue influence or

lack of capacity, while under § 1 the debtor does not.           Mass. Gen.

Laws Ann. ch. 188, § 1 (West Supp. 2003).             Rejecting Garran's

proffered interpretation of the homestead statutes -- by holding

that disabled debtors do not have the right to "stack" their § 1A

exemptions onto their § 1 exemptions -- does not eliminate the

value of the § 1A enactment.

                                    IV.

            Having predicted that the Massachusetts Supreme Judicial

Court would conclude that the plain language of the Massachusetts

homestead    statutes   prohibits    the   stacking   of   the    exemption

available to disabled debtors on top of the exemption available to

all other residents of Massachusetts, and that Garran is entitled

only to a maximum of $300,000 provided by his non-debtor spouse's

declaration of homestead under § 1, we now must return to the

formula laid out in 11 U.S.C. § 522(f)(2)(A) to determine whether

Citizens' lien impairs Garran's homestead exemption of $300,000.

The sum total of Citizens' lien at the time of the bankruptcy


                                    -13-
petition ($62,739.79), the other liens on the property at the time

of the bankruptcy petition ($194,857.91) and Garran's homestead

exemption ($300,000.00) is $557,597.70.   This total is less than

the value of the Garrans' property at the time of the bankruptcy

petition ($560,000.00).   The Citizens' lien therefore does not

impair Garran's homestead exemption because Garran can both satisfy

the liens on the property and still retain the $300,000 homestead

exemption to which he is entitled under Massachusetts law. Because

the Citizens' lien does not impair Garran's exemption, it cannot be

avoided under § 522(f).

          Affirmed.




                               -14-
                                  Appendix

            This table sets forth the differing calculations the

parties propose under 11 U.S.C. § 522(f)(2)(A):

                           Garran's Theory         Citizens' Theory

Citizens' lien             62,739.79               62,739.79
(undisputed)

Other liens (undisputed)   194,857.91              194,857.91

Exemption                  600,000.00              300,000.00

Sum of 522(f)(2)(A)(i)-    857,597.70              557,597.70
(iii)

Value of property          560,000.00              560,000.00
(undisputed)

Exemption impaired?        Yes: sum of (i)-(iii)   No: sum of (i)-(iii)
                           exceeds value of        does not exceed value of
                           property.               property.




                                       -15-