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 UNITED STATES BANKRUPTCY COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE : BANKRUPTCY NO. 06-10077

: CHAPTER 7

MICHAEL SOLOMAN WANSOR, :

DEBTOR :

:

 MICHAEL SOLOMAN WANSOR, : DOCUMENT NO. 15

 Movant :

vs. :

 FIRST PLACE BANK, Respondent :

APPEARANCES:

SUSAN F. REITER, ESQ., ERIE, PA, ATTORNEY FOR FIRST PLACE BANK

PAUL W. JOHNSON, ESQ., NEW CASTLE, PA, ATTORNEY FOR MICHAEL SOLOMAN

WANSOR

WARREN W. BENTZ, U.S. BANKRUPTCY JUDGE

JULY 25 , 2006

OPINION

Factual Background

Michael Soloman Wansor (“Debtor”) filed a voluntary Petition under Chapter 7 of the

Bankruptcy Code on January 31, 2006. The Debtor’s wife did not join in the Petition. Before

the Court is the Debtor’s Motion to Avoid Liens. The facts are not in dispute.

First Place Bank (the “Bank”) filed three judgments against the Debtor. The judgments

were based upon the Debtor’s personal guaranty of obligations owed to the Bank by Clark

Building Systems, Inc. The judgments are not against the Debtor’s wife. The first two

judgments entered on April 11, 2006 were in the amounts of $55,039.11 and $45,845.10. The

third judgment was entered on December 1, 2005 in the amount of $630,974.56. The total

amount of the judgments is $731,858.77. On the dates that the judgments were entered and

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All references to Code sections are to Title 11 of the United States Code as amended by

the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.

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continuing until the present time, the Debtor owns one parcel of residential real property jointly

with his wife as tenants by the entireties (the “Property”). There are no other liens on the

Property. 

Debtor has elected state law exemptions pursuant to 11 U.S.C. §522(b)(3)1

 and claims the

Property as exempt as property that is owned as a tenant by the entirety. Debtor seeks to avoid

the judicial liens of the Bank pursuant to §522(f) asserting that entireties property is 100%

exempt and that the Bank’s judicial liens impair the entireties exemption and is thus avoidable. 

The Bank opposes the Motion. It asserts that the judgments did not create liens on an interest of

the Debtor in property and therefore, there are no liens to avoid and the Debtor’s Motion must be

denied.

Discussion

Liens on exempt property may be avoided under §522(f)(1)(A) which provides that a

debtor may “avoid the fixing of a lien on an interest of the debtor in property to the extent that

such lien impairs an exemption to which the debtor would have been entitled under subsection

(b) of this section if such lien is – (A) a judicial lien. . . .” 11 U.S.C. §522(f)(1)(A). In order to

be avoidable, each of four requirements must be satisfied:

1. The lien must be a judicial lien;

2. The lien must have fixed on an interest of the debtor in property;

3. The debtor claims and is entitled to exempt that property interest under Section

522(b); and

4. The lien impairs the exemption.

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In re Tolson, 338 BR 359 (Bankr. CD IL 2005)

The sole issue in the instant matter is whether a judgment against only one tenant by the

entirety creates a lien on that tenant’s interest in entireties property. Section 522(f) “requires a

debtor to have possessed an interest to which a lien attached, before it attached, to avoid the

fixing of the lien on that interest.” Farrey v. Sanderfoot, 500 US 291, 301, 111 S.Ct. 1825, 1831

(1991).

The statute does not say that the debtor may undo a lien on an interest in property. 

Rather, the statute expressly states that the debtor may avoid “the fixing” of a lien

on the debtor’s interest in property. The gerund “fixing” refers to a temporal

event. That event – the fastening of a liability – presupposes an object onto which

the liability can fasten. The statute defines this pre-existing object as “an interest

of the debtor in property.” Therefore, unless the debtor had the property interest

to which the lien attached at some point before the lien attached to that interest, he

or she cannot avoid the fixing of the lien under the terms of §522(f)(1).

Id., 500 US at 296, 111 S.Ct. at 1829 (footnote omitted).

There are two views as to the issue of whether a recorded judgment against only one

tenant by the entireties creates a lien on that tenant’s interest in entireties property. One view is

that because there is nothing that a creditor of one of the tenants by the entireties can seize or sell

under an execution upon the judgment, there can be no lien. See In re Tolson, 338 BR 359, 366

(Bankr. CD IL 2005) (and cases cited therein). “[T]he alternative view that a lien arises is

supported by almost century old cases, rendered at a time when the nature of the estate by

entireties had long been settled.” Id. citing Beihl v. Martin, 236 PA 519, 84A.953 PA (1912).

Under Farrey v. Sanderfoot, we look to state law to determine whether and when a debtor

possesses an interest in property to which a lien can attach. 

We direct our attention to two long-standing decisions of the Pennsylvania Supreme

Court. In Fleek v. Zillhaver, 117 PA 213, 12A.420 PA (1887), a judgment was entered against a

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husband only who owned real property jointly with his wife as tenants by the entireties. 

Subsequently, the husband and wife joined in a mortgage. After the wife died, the judgment

creditor issued execution against the property. The issue before the court was whether the

judgment lien or the mortgage lien had priority. The court determined that the judgment had

priority, holding that the interest of husband and wife, where they hold by entireties, may be the

subject of a lien, and that upon the death of either, the lien against the survivor may be enforced. 

In Beihl v. Martin, 236 PA 519, 84A.953 PA (1912), the Supreme Court of Pennsylvania

limited Fleek. In Beihl, a judgment was entered against a husband who owned property with his

wife as tenants by the entireties. The spouses then sold the property to a third party. The

purchaser brought an action to determine that his title was free of any contingent claims or

encumbrances which could arise from the judgment against the husband. The court states:

We start in the discussion with an admission which the case of Fleek v. Zillhaver,

supra, compels, that the judgments here obtained against the husband were liens. 

But upon what? Certainly not upon the entirety that was in the husband, for the

entirety of estate was in the wife equally with the husband, and, being in its nature

indivisible, it would follow necessarily that any incumbrance upon the estate of

the one would rest upon that of the other, a result which, of course, could not be

justified or allowed, except as the inherent attributes of the estate are to be wholly

disregarded. There remains to the husband a right of survivorship, by virtue of

which, in case he survive the wife, while taking no estate, yet because the entirety

in the wife is by her death extinguished, his entirety embraces every interest in the

estate. Contingent though this ultimate divestitute (sic) be, the expectancy is

nevertheless a vested interest, and as such may be the subject of lien. All possible

titles, vested or contingent, in land, under our law, may be taken in execution and

sold, provided it be a real interest, whether legal or equitable. ‘Accordingly,’ says

Tilgman, C. J. in Carkhuff v. Anderson, 3 Bin. 4, ‘it has been long settled that a

judgment is a lien on every kind of equitable interest in lands. It is a lien on every

kind of right vested in the debtor at the time of the judgment.’ The right to such a

lien is not dependent alone on statutory authority. At common law judgments

were not liens upon land; but the lien resulted from lands being subjected by

statute to be taken in execution, and from this right the land was held bound from

the date of the judgment. Our statutes with respect to liens simply enlarge and

extend them. It was this contingent expectant interest in the husband that was in

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contemplation when in [Fleek], this court held that the judgment against the

husband acquired a lien at its inception.

Beihl, 236 PA 519, 526-27, 84A.953, 955-56. 

The Court in Beihl went further to:

reach the conclusion that the lien on the expectant interest of the husband

becomes enforceable only when the expectancy ripens into a realized fact; then

execution is not upon an expectancy, but upon an actual existing estate. 

Id. 236 PA at 528, 84A at 956.

The Court went on to describe the contingent nature of the lien:

Another unavoidable conclusion results, which must prove fatal to the appellant’s

contention here. If the husband may not alien his right of expectancy, and if

because of this the expectancy may not be taken in execution–since in either case

it would be an appropriation of the wife’s right of property, in that it would

deprive her of the right to sell with the husband’s consent–for equal reason a

judgment operating as a lien upon the husband’s expectancy would be an

interference with the wife’s right of alienation with the consent of the husband,

except as that lien is divested by such sale. The owner of such lien must hold it

subject to its possible extinction in either of two events, the predecease of the

husband, or the alienation of the estate by the joint act of the parties. The

efficiency of the lien depends upon the nonhappening of either.

Id., 236 PA at 528-29, 84A at 956.

Other cases have described the interests of a holder of a judgment against one tenant in

entireties property as a lien subject to possible extinction, C.I.T. Corp. v. Flint, 333 Pa. 350, 356,

5A.126, 129 PA (1939), an inchoate lien, Weir v. Taylor, 45 PA D&C 2d 197 (Pa. Com. Pl.

1967), a “potential” lien, Kleback v. Mellon Bank, N.A., 388 Pa. Super. 203, 208, 565 A.2d 448,

450 (Pa. Super. 1989), or a present but unenforceable lien, In re Hope, 77 BR 470, 475 (Bankr.

ED PA 1987).

The Court of Appeals for the Third Circuit in Napotnik v. Equibank and Parkvale

Savings Ass’n., 679 F2d 318, 319 (3d Cir. 1982) states:

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More to the point of this dispute, creditors of either spouse cannot acquire by

judgment an enforceable lien on entirety property, or title therein by sale or

executing. Amadon v. Amadon, 359 Pa. 434, 59 A.2d 135 (1948). At most, a

creditor of either spouse may obtain a presently unenforceable lien upon that

spouse’s expectancy of survivorship–a lien that becomes enforceable only when

the other spouse dies.

Id.

“In Napotnik, it was unnecessary for the Court to be more precise because the creditor

whose lien the debtor there sought to avoid held a judgment against both spouses.” In re Hope,

77 BR 470, 472 (Bankr. ED PA 1987).

“The Napotnik Court, recognizing the uncertainty of the law in this respect,

acknowledged that an inchoate lien may exist against a debtor-spouse.” In re Bilinski, 1998 WL

721083 (ED PA Oct. 9, 1998) aff’d. without opinion, 213 F3d 628 (3d Cir. 2000).

It is, of course, true that entireties property in Pennsylvania cannot be encumbered

by a lien of a creditor of only one spouse. See Stop 35, Inc. v. Haines, 374

Pa.Super. 604, 543 A.2d 1133, 1135 (Pa.Super.1988). The bankruptcy court,

however, did not contradict this black-letter doctrine. Instead, while

acknowledging the existence of that hoary rule, thus making Mr. Block’s lien

presently unenforceable, the court looked ahead, holding that Mr. Block had an

inchoate lien against Ms. Bilinski’s right of survivorship in the property. In so

holding, the bankruptcy judge relied heavily upon his reasoning in an earlier,

unrelated case. In re Hope, 77 B.R. 470 (Bankr.E.D.Pa.1987), which reached the

same conclusion. There, Judge Fox analyzed Pennsylvania caselaw (sic) as to

whether a judgment against a debtor is a lien on the debtor’s interest in real

property held by the entireties. He concluded that a judgment creditor holds a

present, but unenforceable, lien against one spouse’s right of survivorship in

property held by the entireties. Id. at 475. 

In re Bilinski, 1998 WL 721083 at 3.

Section 101(37) of the Bankruptcy Code provides that “[t]he term ‘lien’ means a charge

against or interest in property to secure payment of a debt or performance of an obligation.” 11

U.S.C. §101(37). “The legislative history of §101(37) provides:

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Paragraph (28) defines “lien.” The definition is new and is very broad. A lien is

defined as a charge against or interest in property to secure payment of a debt or

performance of an obligation. It includes inchoate liens. HR Rep No. 595, 95th

Cong, 1st Sess 312 (1977); S Rep No. 989, 95th Cong, 2d Sess 25 (1978) reprinted

in 1978 U.S. Code Cong. & Admin. News 5787, 5810 & 6269.

The legislative history thus makes clear the term “lien” includes inchoate liens. Bilinski

at 3.

There is no uncertainty under the Bankruptcy Code. Congress intended to extend the

term “lien” so that any interest that the Debtor had in property that could be claimed as exempt is

protected from the effects of a judgment lien. 

The Bank has at least an inchoate lien. In accordance with the above authorities, we

conclude that the Bank has a lien on the Debtor’s interest in entireties property which impairs the

Debtor’s exemption. The Debtor’s Motion to Avoid Liens will be sustained. An appropriate

Order will be entered.

 /s/ 

Warren W. Bentz

United States Bankruptcy Judge

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UNITED STATES BANKRUPTCY COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE : BANKRUPTCY NO. 06-10077

: CHAPTER 7

MICHAEL SOLOMAN WANSOR, :

DEBTOR :

:

 MICHAEL SOLOMAN WANSOR, : DOCUMENT NO. 15

 Movant :

vs. :

 FIRST PLACE BANK, Respondent :

ORDER

This 25 day of July, 2006, in accordance with the accompanying Opinion, it

shall be, and hereby is, ORDERED that the lien of the judgments filed in favor of First Place

Bank and against Michael Soloman Wansor at Civil Docket No. 2005-01080 and Civil Docket

No. 2005-01085 in Mercer County, Pennsylvania are avoided.

 /s/ 

Warren W. Bentz

United States Bankruptcy Judge

c: Susan F. Reiter, Esq.

Paul W. Johnson, Esq.

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