matter is now in front of the eighth circuit for the second time the last time this court remanded this matter to the bankruptcy court to make the following determination whether c r p the creditor has a judicial lien on the property this court further went on to say that if it does have a judicial lane whether it's in forcible or non and forcible it is subject to avoidance under the bankruptcy code however what this court also said in two thousand and sixteen in its memorandum opinion was that judicial liens judicial liens are a subset of liens on page fo of the two thousand and sixteen opinion this court importantly stated that judicial liens are a subset of liens court went on to state that in missouri liens are determined under state law and therefore this court said at the time of his two thousand and sixteen opinion that there was a strong argument that there is no lien of any type in this case if it can't be found on the missouri law that in fact a lien exists this court recognized the difference in the case where there is a lien that exists between a lien that isn't forcible or not enforceable and most importantly as well circuit texas opinion in order for it to be an unenforceable lien first a lien has to be found to exist it must first be found to exist in some fashion in texas and the case that this court sided with th that is that under texas law when there's tenancy by the entireties property elaine does attach under texas law it allows for the leave to attach but also under texas law interestingly that lien is not enforceable and so what the court here stated quoting the fifth circuit saying that an unenforceable law in that case is where the lien first attached but couldn't be enforced in that case motion to avoid lane is appropriate and proper so first you've got to make that threshold under missouri law that there is in fact a lane so in terms of what i mean one of the arguments here is the future interest so the argument here would be that's not an unenforceable lien because it never taxed as opposed to the taxes example you gave me where it attaches you just can't force it at that particular time it's that sort of how you would characterize it  bankruptcy petition in this case that will change the only way that it can become have an impact on the property is the post petition the character of that property changers and abrogated well what's putting aside the tennessee by entirety for a second do i understand correctly if under missouri law if the husband and wife sell the property the proceeds are exempt from execution as long as a still a homestead there is a limited homestead in missouri are subject to the limitation in texas there's no unlimited allowed we have we're taught missouri where there are a lot of fifteen thousand dollar exa if they know what happens however if they if they would vacate the property and decide to make it in a rental property and this now no longer a homestead there's your lane attached at that point  are so the answer is it doesn't have to be an exam piece of real estate or homestead counsel what about the bankruptcy of the court wanting to give a fresh start to the debtor and this the sixth circuit and the tenth circuit that you know laws that better side also in this court's opinion previously that back in effect what it really is it's a contingent future interest that is how the creditor that wasn't your argument previous that wasn't it that was not the organ previously your honor when you say the first has to be a lane though but the bankruptcy code defines a lien very broadly as any charge against the property doesn't have to be what we may be normally think of as a judgment lane or a mortgage and there's this missouri case that the bankruptcy court relied upon pretty extensively mahaan are mehan versus rural which indicates under missouri law what we have here is a charge against the property how do you distinguish that your honor i would say that the lower court judge norton the honorable judge norton and the baptists all agreed that under missouri law there is no lane what they didn't understand is my contention in reviewing everything carefully in preparation for today is they didn't necessarily understand that a judicial lame as this court wrote is a subset of a lane everyone agrees i think in the state of missouri that state law determines what a lien is in this case as are a small reserve status in missouri five eleven point four four zero one five eleven point zero one zero that basically state them as you know that missouri judgments are only liens on real estate and then fact real estate is an interest liable and real estate is only considered an interest in slab be sold on for sold at execution so something of a piece of real estate can't be sold on execution a piece if a piece of property on it can't be stolen execution it can't be considered real estate and therefore  is if the parties say they got divorced and the husband against whom you have the judgment ends up owning the property yes or essentially are what i'm saying is that there has to be a future new event property or anywhere else and it can only and what's interesting about it when you when you think it through is that if it were to happen your honor it would only happen because the tenancies by the entireties is broken and therefore the exemption doesn't exist and therefore a lien can lie what exactly does this get you i'm trying to figure out what happens because the under isn't the underlying judgment going to be discharged in bankruptcy and so how then what what  attorney as i am often times and you have a your client has a car and has a car loan and a lien on the car you file bankruptcy for the client the client continues to make payments on the car they're after the car company could still repossessed the car at post petition if they don't make the payments but they can't go after the deficiency balance against the debtor and less the better reaffirm th so what so it's a possibility but it all makes sense because what happens is it could only arise in the event that the tennessee by the entireties is no longer apply cable in the future due to a future of then that takes place post petition it's very possible that contingent future interest my client holds the creditor holds may never alter and change and you know dissipate but if the judgment itself is that discharged in bankruptcy yes  no i would i would like to get back quickly to judge smith's question about the cloud on title i do understand that argument and it was discussed significantly two years ago here at this court to your honor and you know two points i'd like to make an initial a but one is you know there's a difference between a cloud on title that is based on an appropriate filing and a mistake of law or a mistake that a title company or a title search or many make a misunderstanding or a fundamental mistake of the law and not understanding the law should not deny my client in this case the creditor his legal right there's a difference between a cloud and a mistake and w when my client would be denied the possibility that in the future you know that he would have he would have the ability to execute on that particular piece of real property here in the future should that intervening into whether or not there's a judicial link subject to avoidance under five point two f one and we have to look at the bankruptcy law and definitions to make a determination as to whether under bankruptcy law for the purposes of five twenty two f claim or an interest in real estate and i think first of all their argument today clearly indicates that they believe if they have an interest in real estate that they have an interest in this property that sometimes will rock it in that they can  upon upon either the death of the spouse or parent and perhaps divorce and it is that interest that is subject to avoidance under twenty two i think the problem now is that with respect to how the court got there it did look at missouri law and determine whether or not a cloud on the title is equal to an interest in the property or a charge against your property and if a cloud is interest and if a cloud and a missouri law on the title is equal to an interest or a charge against the property then it's subject to have goings on at five twenty two f one and i think what the court did was that looked at both courts looked at two different cases and as a court previously said they look mehan versus rural and they also look at rogers versus first national bank of athens and city and i think the issue with respect that creates here is that when you look at the record any examiner or of someone who prefers exist at the time you're examining that adl again it could it get exhibit could be have been destroyed by divorce or good been destroyed by death it could never have been created a which time because of the recording or because of the or to avoid or you are you it's not clear to me and i just want to i guess i want to sort of probe about this which is are you saying that it's an actual interest and you don't buy sort of the lower court's interpretation that the cloud itself was sufficient or are you buying into the cloud theory and if they're ok and is that consistent than with the definition of an interest in the bankruptcy code yes tell me why well because i think and use the plain language you know or the language of the bankruptcy code would help me out a lot what it is is that it has an interest because it creates leverage for the creditor it has an interest because it's something that has to be dealt with lane which on the record you have a judgment i'm sorry what's on the record creates a lien on the rolls well the reason why i'm asking that question is because i'm not sure about the cloud theory to be honest with you but i'm still stuck on the lien versus no lien at all which seems to be the thrust of judge murphy's prior opinion of this court and opposing counsel gave his gave an example on taxes of an unenforceable one that actually exists and it's attached but you can't enforce at the time it attaches and my question for you is is could this be an uninformed simple line is there are two possibilities here at least in your client's you the possibility of the cloud which is your theory that you've expressed and then the possibility of the it is it is a lane that is and force of will ok that helps thank you i mean it's a lane that's on portugal under missouri law but it's recognized as a plain under bankruptcy law for the purpose of five hundred twenty two you're looking at it from two different directions under state law is it isn't a lane that can be enforced now under five twenty two after the bankruptcy code is that an in force will lean that can be avoided in the bankruptcy court take is that enter the bankruptcy code because of the clouds and because of the amid interest of the creditor in the property i mean they fall a judgment lane thank you in that it created an interest for them they're up here today arguing for this court that they have an interest in the property that they have an interest in the property that their client's going to be harmed if at some teacher day they cannot enforce they get divorced and the husband gets a property or if the wife dies in the husband probably in so clearly by their own mission and by their own actions they think they have an interest in this real that you have a situation where you're given example if you're if you're writing title and you're only money and they're married at the time you loan the money and there's a judgment lien out there and he find out well that leaned on attachment was very law he loaned the was the purpose of five twenty to ask one is and again i want to address this issue about the future interest first of all that is not the subject of the mandate there was never as a as a as  the bankruptcy court found a door number three it was never argued that somehow they have an interest in a future interest and that's what they're saying is that i have an interest in a higher percent interest so there is no teacher interest and it's outside the mandate this court last heard of this case and that's the only place that they're going they're hanging their hat on a property what do we what do we do with that statement it seems to hand that there's no lien at all here i'm whether or not it's truly has he been tardy creates a class and that cloud is this creates an interest that the creditor has in that real estate and because of the definition of lien  which we have more question i don't i don't have anything further i see no nine or secondly this whole cloud argument almost every example that mr rouse just provided of what exists as a cloud on title was not my judgment my client's judgment these were all issues with the tenancy by the entireties itself they were he talked about divorce he talked about death the talk about all sorts of other impacts of the debtors themselves what i would tell you is that from my point of view our record is not a quote on title and here's the very very crude reason why on its face the judgment is only against one party my judgment is not against o'sullivan she is the warranty deed owner of the property that is of record on it very well my judgment and not the you know considered on its face it can usually by anyone that i think reputably understands the law or and understands you know the issues involved or on his very face i don't think that there is a cloud by by the terms of my judgment itself but further judges what i would tell you to look at is that there  no evidence in the record from mr o'sullivan that any time of an actual cloud on title or of an impact on him this was all basically you know written up in the in the judgments without any supporting documentation without any supporting evidence whatsoever there was no letter from a title company there was no letter from a lawyer there was no letter from mr o'sullivan or some type of apple david saying that a buyer who looked at the property and had experienced a problem on the point suppose all of that evidence existed suppose the record were different suppose that he has statements from a title company that says boy this is this is going to be really you know i don't i we're going to do a lot of further research is a cloud on the title is that