Revised April 6, 1999

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 95-11112

_______________________

In the Matter of:

THOMAS CULLEN DAVIS;

KAREN JOYCE DAVIS,

Debtors,

_______________________

SANDRA DAVIS,

Appellant,

v.

THOMAS CULLEN DAVIS,

Appellee.

_________________________________________________________________

Appeals from the United States District Court

for the Northern District of Texas

_______________________________________________________ __________

March 17, 1999

Before KING, Chief Judge, POLITZ, JOL L Y, HIGGINBOTHAM, DAVIS,

JONES, SMITH , DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS,

BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.

EDITH H. JONES, Circuit Judge:

In 1987, Cullen and Karen Davi s filed for bankruptcy

relief and claimed as their exempt Texas homestead a residence

valued at $500,000 which they owned free and clear. Cullen’s

former wife Sandra obtained a judgment fromthe bankruptcy court

declaring that her $250,000-plus claim for alimony, child support,

and maintenance was nondischargeable under 11 U.S.C. § 523(a)(5).2

To enforce the nondischargeability judgment, Sandra sought turnover

relief in the form of an order permitting her to foreclose on

C ullen’s and Karen’s homestead. The bankruptcy court and the

district court held that she could not levy on the debtors’

homestead because it is protected from execution under Texas law,

and 11 U.S.C. § 522(c)(1), a provision of the Bankruptcy Code, did

not preempt the debtors’ state-law rights. A split panel of this

court reversed the lower courts. S ee Davis v. Davis (In re Davis)

,

105 F.3d 1017 (5th Cir. 1997). This case was selected for en banc

rehearing because of its importance to federal bankruptcy law and

to state exemption rules. We conclude that the lower courts were

essentially correct and affirm their judgments denying Sandra the

relief she seeks.

FACTUAL AND PROCEDURAL HISTORY

When Sandra and Cullen divorced in 1968, they executed a

property settlement, support and child custody agreement, and

divorce judgment (collectively “divorce judgment”), and Cullen

agreed to make monthly payments to Sandra through January 1, 1991,

with certain contingent payments thereafter. In 1979, Cullen

married Karen Davis. In 1984, Cullen and Karen purchased a house

and lot for $750,000.

In 1987, Cu llen and Karen stopped making payments to

Sandra as required by the divorce judgment and filed for Chapter 7

bankruptcy relief, followed later by conversion to Chapter 11. As3

has been noted, Cullen’s and Karen’s costly, lien-free home was

claimed as exempt property pursuant to § 522(b)(2)(A) and valued at

$500,000 on their schedules.

Armed with the bankruptcy court’s judgm ent that Cullen

owed her $300,000 in nondischargeable alimony, maintenance and

child support obl igations and associated attorneys’ fees, Sandra

requested that the bankruptcy court seize and sell the debtors’

homestead und er Texas Civ. Prac. & Rem. Code § 31.002(a),

applicable to the action under Bankr. R. 7069 and Fed. R. Civ. P.

69. Because a debtor’s homestead is exempt from attachment,

execution, or seizure under Tex. Const. art. XVI § 50 and Texas

Property Code § 41.002(a), the bankruptcy court determined that the

debtors’ homestead was not subject to the Texas turnover statute.

In so doing, the court rejected Sandra’s argument that § 522(c)(1)

of the Bankruptcy Code preempted the Texas homestead exemption for

nondischargeable debts related to family support as defined in

§ 523(a)(5). Sandra appealed this ruling to the district court,

which affirmed for substantially the same reasons. Sandra timely

appealed to this court. We review the lower courts’ interpretation

of the Bankruptcy Code de nov o

. See Henderson v. Belknap (In re

Henderson) , 18 F.3d 1305, 1307 (5th Cir. 1994).

THE BANKRUPTCY EXEMPTION STATUTE

At issue in this case are the meaning and preemptive

force, if any, of 11 U.S.C. § 522(c), a provision that is part of4

the Bankruptcy Code’s framework for the treatment of exempt

property. Understanding § 522(c) begins with a description of the

lengthy provision governing exemptions of which it is a part. S ee

United Sav. Ass’n v. Timbers of Inwood Forest Assocs., Inc.

, 484

U.S. 365, 371, 108 S. Ct. 626, 630 (1988) (“Statutory construction,

however, is a holistic endeavor.”).

Federal bankruptcy law affords debtors a fresh start by

enjoining collection of discharged debts, § 524, and by permitting

the debtors to retain certain limited amounts and types of exempt

property, § 522. Exemptions have been perennially controversial,

because they reduce assets potentially available to pay creditors

and arouse charges of abuse of bankruptcy. Exemptions are also

fought over by states’-rights advocates, who value the traditional

state legis lative prerogative to adjust exemptions to local

economic co nditions, and by advocates of federal uniformity, who

want to raise

-- or lowe r -- exemptions based on conceptions of

national equity. Congress allayed the controversy between state

and federal advocates by providing in the 1978 Bankruptcy Code that

states could opt out of prescribed federal exemptions altogether or

could allow their citizens to select either schedule. S ee 11

U.S.C. § 522(b).

Exemptions are easy to claim. The debtor files a list of

exempt property protected by applicable federal or state law with

the court. S ee 11 U.S.C. § 522(l). If the exemptions are not1 Fu rther, if a debtor claims an exemption on property

recovered from a third party by the trustee, the exempt property

may be used to pay the costs of administration. S ee 11 U. S.C. §

522(k).

5 objected to, the property becomes exempt and unavailable to be

levied on by pre-petition creditors or managed by the trustee.

The right to claimexemptions is closely guarded.

Waivers are unenforceable. See 11 U.S.C. § 522(e). A debtor may

claim exemptions even on property recovered by the trus tee from

third parties. S ee 11 U.S.C. § 522(g). The debtor may “avoid the

fixing of a lien” to the extent it impairs an exemption. 11 U.S.C.

§ 522(f). Both husband and wife may claim exemptions individually.

See 11 U.S.C. § 522(m).

The consequences of claiming exemptions are delineated in

§ 522(c). Generally, unless a case is dismissed, exempt property

may n ot be held liable to repay any pre-petition debt of the

debtor. This very broad protection requires qualification, at

least to the extent that otherwise enforceable liens on exempt

property must remain viable, § 522(c)(2)(A), as must properly filed

tax liens, § 522(c)(2)(B). Only three other types of pre-petition

claims against the debtor have any viability against property after

it is declared exempt: certain nondischargeable tax claims,

nondischargeable family support claims, and cl a ims of federal

depository institutions regulatory agencies. 1

Moving from the general discussion of exemptions to the

case before this court, the narrow terms of exception from the2 We have been unable to locate any appellate cases in which a

court has directly discussed the effect of § 522(c) on statecreated exemptions. Some courts have construed § 522(c) in

conjunction with § 522(f) in the course of avoiding certain liens

on exempt property. S ee

, e.g.

, Patriot Portfolio, LLC v. Weinstein

(In re Weinstein) , 164 F.3d 677, 679-80 (1st Cir. 1999) (Reavley,

J.). However, no court has held that § 522(c) establishes a

separate means of enforcing liens against exempt property. Indeed,

i n cases involving the viability of nondischargeable feder al tax

liens, bankruptcy courts have cited the preempt ive effect of the

6 protected status of exempt property are described by the statute as

follows:

(c) Unless the case is dismissed, property

exempted under this section is not liable

during or after the case for any debt of the

debtor that arose, or that is determined under

section 502 of this title as if such debt had

arisen, before the commencement of the case,

except --

(1) a debt of a kind specified in section

523(a)(1) or 523(a)(5) of this title;

(2) a debt secured by a lien that is --

(A)(i) [& ii] [not av oided or void under

specified provisions of this title]; or

(B) a tax lien, notice of which is properly

filed; or

(3) a debt of a kind specified in section

523(a)(4) or 523(a)(6) of this title owed by

an institution affiliated party of an insured

depository institution to a Federal depository

institutions regulatory agency acting in its

capacity as conservator, receiver, or

liquidating agent for such institution.

11 U.S.C. § 522(c).

In order to prevail in this case, Sandra must demonstrate

that § 522(c) creates a basis for execution on Cullen’s homestead

to enforce her nondischargeable divorce judgment and that, in

enacting this provision, Congress expressly or impliedly preempted

the Texas homestead law. 2federal tax lien enforcement provision

-- not Bankr. R. 7069

-- as

a means of levying on otherwise exempt property. S ee

, e.g.

, In re

Reed

, 127 B.R. 244, 247-48 (Bankr. D. Haw. 1991) (“[F]ederal law

governs what is exempt from federal levy.”); Crow v. Long

, 107 B.R.

184, 186-87 (E.D. Mo. 1989). Thus, these cases do not control, or

otherwise affect, our analysis of § 522(c).

7 Sandra’s argument as to § 522(c) is simple. She reads

the section to say that property exempt from payment of discharged

debts is “liable” for the types of debts listed as exceptions. But

the statute does not say this. Rather, it states that exempt

property “is not liable

. . . for any d ebt . . . except . . . [a

nondischargeable divorce judgment].” Her argument did not persuade

the bankruptcy court, who wrote:

[Section 522(c)] does not create or establish

liability. It enjoins most liability imposed

by non-bankruptcy law upon exempt property but

does not enjoin all liability for al l debts.

While it does not impose an injunction against

liability on exempt property for § 523(a)(1)

or (a)(5) debts, it also does not prevent nonbankruptcy law from imposing such an

injunction. Indeed, Texas has done so.

Davis v. Davis (In re Davis) , 170 B.R. 892, 898 (Bankr. N.D. Tex.

1994). At best, the statutory language is ambiguous from the

standpoint of imposing the liability Sandra seeks. Viewed in light

of the exemption framework outlined above, however, Judge

Felsenthal’s explanation is more plausible than Sandra’s. In other

words, § 522(c) sought to leave exempt property exposed to postbankruptcy liability only to the extent it would have been exposed

if the bankruptcy had not occurred. This interpretation is the

most plausible reading of § 522(c) for several reasons.3 The district court drew this distinction as well:

Section 522(c)(2) allows exempt property to be

held liable for certain debts already secured

by a lien. If §522(c) were an execution

statute, it would have no cause to rely on

existing liens to have effect. That liability

as to § 523(a)(1) and § 523(a)(5) debts is not

8 Unless Congress expressly legislates otherwise, see

infra

, the policies of ba nkruptcy law have little bearing on

property after it is exempt from the debtor’s estate. Such

property is no longer available for distribution to creditors, and

it is not subject to charge for bankruptcy administrati ve fees.

The debtor may use the exempt property without claims of prepetition creditors hanging over his head. Of course, Congress

deemed necessary some narrow exceptions to this policy of a fresh

start for the debtor’s exempt property. Thus, purchase money liens

on exempt property had to be protected to insure a free flow of

credit for purchases of property in markets like residential real

estate. Further, tax liens were preserved against exempt property

because the contrary result -- voiding, e.g., school tax liens on

a homestead

-- is unthinkable. Section 522(c)(2) deals with these

claims by simply leaving them unaltered on exempt property. The

section d oes not “create” or “impose” liability, nor does it

override or add to state law or federal tax law. The holders of

those sorts of unaltered claims would have to p roceed via

applicable non-bankruptcy collection schemes to rea lize on their

security against exempt property. 3defined by pre-existing liens does not change

th e defining -- as opposed to executory --

nature of § 522(c). Rather, it suggests that

for th ese debts a lien or other means of

executing on the judgment need not precede the

claiming of exemptions. The creditor, after

the debtor has declared bankruptcy and claimed

exemptions pursuant to § 522(b), may still

pursue these debts by whatever means are

available, i.e., state-law remedies for

execution on a judgment.

Davis v. Davis (In re Davis) , 188 B.R. 544, 551 (N.D. Tex. 1995).

9 Yet the same introductory language to § 522(c) that

leaves these liens and underlying state and federal law collection

schemes una ltered is argued to have a different meaning with

respect to Sandra’s nondischargeable divorce judgment. When Sandra

contends that the language “creates” a “liability” over and above

the protection he r lien is accorded in state law, she means that

the bankruptcy court can order execution on the homestead to

satisfy the divorce judgment. This contention flatly contradicts

standard canons of statutory interpretation, for the same language

in a single statutory provision cannot have two different meanings.

See Sullivan v. Stroop

, 496 U.S. 47 8, 484, 110 S. Ct. 2499, 2504

(1990) (espousing “normal rule of statutory construction” that

“identical words used in different parts of the same act are

intended to have the same meaning”).

Sandra’s position is also hard to justify if applied to

nondischargeable tax debts, the other non-lien debts specified in4 Many tax debts are rendered nondischargeable by § 523(a)(1),

a provision which is designated an exception to § 522 (c) in the

same clause with the reference to family support obligations. S ee

11 U.S.C. § 522(c)(1).

10 § 522(c)(1). 4 That is, while a sense of compassion for ex-spouses

and children, who are the obligees of nondischargeable family

support obligations, provides impetus for “creation” of liability

against exempt property, the balance is not so easily struck in

favor of “creating ” liability of exempt property to pay

nondischargeable, non-liened tax debts. Congress might have made

the choice to “create” liability of exempt property for both types

of nondischargeable debt, but this is unlikely. Taxing authorities

benefit from favorable lien law s and other extraordinary

enforcement sanctions and penalties, and these prerequisites render

additional protections in § 522(c) superfluous. Linguistically,

San dra’s argument must furnish the same protection to

nondischargeable non-liened tax obligations as she asserts it does

for nondischargeable family support obligations. But the mandated

linguistic parallelism exposes an illogical result.

Notwithstanding our view that Sandra’s construction of

§ 522(c) creates internal inconsistencies in that provision, bits

of legislative history and the import of § 522(f) may be cited to

bolster her position. These arguments are not without force, but

they are ultimately unconvincing.

In 1990, Congress amended § 522(c)(3), creating an

exception designed to prevent “bank insider kingpins” from hiding11

behind state exemptions to retain their “ill gotten gains.” 136

Cong. Rec. E3686 (daily ed. Nov. 2, 1990) (statement of Rep.

Schumer); see also 11 U.S.C. § 522(c)(3). A statement of Senator

Biden during Senate consideration of the provision suggests that

the proposed legislative language

specifically pre-empts St ate homestead laws,

which would otherwise allow S&L crooks to

retain lavish homes through the excessive

protections in some State bankruptcy laws.

136 Cong. Rec. S17,602 (daily ed. Oct. 27, 1990). Isolated

statements of individual legislators represent neither the intent

of the legislature as a whole nor definitive interpretations of the

language enacted by Cong ress. S ee Board of Educ. v. Rowley

, 458

U. S. 176, 204 n.26, 102 S. Ct. 3034, 3049 n.26 (1982). Further,

these particular statements post-date by twelve years the enactment

of the prefatory language in § 522(c) with which we are here

concerned. For that additional reason, they are not probative.

See United States v. Price , 361 U.S. 304, 313, 80 S. Ct. 326, 332

(1960) (“[T]he views of a subsequent Congress form a hazardous

basis for inferring the intent of an earlier one.”).

Sandra also contends that § 522(c)(1) is not intended to

serve simply as a lien preservation provision, because that purpose

is ful filled by § 522(f), which provides in part that while a

d ebtor may avoid the fixing of a lien on exempt pro perty, the

debtor may not avoid a judicial lien for alimony or family support.

If § 522(c)(1) does not have the broader purpose of permitting12

execution against exempt property, then it is allegedly redundant

of the lien preservation function of § 522(f)(1)(A)(i). But

§ 522(c) is not duplicative of § 522(f)(1)(A). The former

provision states the effect of an exemption on liability for each

kind of debt specified, while the latter provision states when a

party may avoid the fixing of a pre-petition lien on exempt

property. The two sections overlap in part, but their scope and

purpose differ.

Nor does the Supreme Court’s interpretation of § 522(f)

shed light on the relation between that provision and § 522(c), at

least not in any sense helpful to Sandra. In O wen v. Owen

, t h e

Supreme Court discussed whether under § 522(f) a state homestead

exemption (with its sta te law limitation) should be treated

differently from the federal exemption insofar as the § 522(f)

federal lien avoidance provision is concerned. See 500 U.S. 305,

313, 111 S. Ct. 1833, 1838 (1991). The Court concluded that

“[n]othing in the text of § 522(f) remotely justifies treating the

two categories of exemptions differently.” I d. In this case, the

provision in § 522(c)(1) for continuing liability for certain debts

applies equally to both federal and state exemption schemes; in

each scenario, liability persis ts after bankruptcy to the same

extent it did before. It is only with respect to the enforcement

of such liability, a matter which Congress has left to state

mechanisms, that the results differ.13 A h olistic reading of § 522(c)(1) undermines Sandra’s

theory that the provision is literally self-executin g. She has

confused her right with her remedy. This error is exposed by

applying her reasoning to other debts that § 522(c) preserves

notwithstanding property exemptions, i.e. certain tax debts,

federal depository regulators’ debts, and debts already secured by

a valid lien. If Sandra’s reading of § 522(c) is correct, then a

homestead could be sold to repay non-liened tax debt, made

nondischargeable according to § 523(a)(1), or indeed to pay off an

obligation owed to the FDIC without recourse to federal or state

lien or homestead protection laws. The impact of such a

construction would put the preferred creditors in a better position

after the debtor has filed bankruptcy than before and may create an

incentive for filing involuntary bankruptcies. In effect, Sandra’s

proffered construction of § 522(c) does not merely withhold any

special protection offered by bankruptcy law, but ove rrides nonbankruptcy law and has the effect of denying the debtor even

exemption s that would have been available outside of bankruptcy.

Further, this interpretation seriously disadvantages a debtor

subject to the listed obligat ions, and it actively discourages a

large number of potential debtors who are faced with the types of

obligations excepted from § 522(c) from seeking bankruptcy relief.5 The bankruptcy court pointed out how easily an amendme nt of

§ 522(c)(1) could have expressed the affirmative mechanism for the

collection of family support obligations that Sandra advocates:

(c) Unless the case is dismissed, property

exempted under this section is not liable

durin g or after the case for any debt of the

debtor that arose, or that is determined under

§ 502 of this title as if such debt had

arisen, before the commencement of the case.

(1) Notwithstanding this or any other federal

or state injunction of liability for exempt

property, exempt property shall be liable for

debts of a ki nd specified in § 523(a)(5) of

this title.

Davis , 170 B.R. at 897 (emphasis added).

14 Congress surely would not have reached this consequential result

without legislating more explicitly. 5

For all these reasons, we conclude that § 522(c)(1) does

not “create” “liability” of exempt property for specified debts

following bankruptcy. Instead, the section permits creditors

holding such claims to proceed against the property after

bankruptcy based on the rights and remedies they would have had

under state law if bankruptcy had not been filed.

PREEMPTION

To prevail in her approach to § 522(c), Sandra must show

that it preempts Texas law, thus subjecting Cullen’s homestead to

seizure and sale to satisfy her nondischargeable divorce judgment,

despite the express prohibition on such foreclosure contained in

the Texas constitution and statutes. See Eggemeyer v. Eggemeyer

,

623 S.W.2d 462, 466 (Tex. App.-Waco 1981, writ dism’d) (homestead6 See Rice v. Santa Fe Elevator Corp.

, 331 U.S. 218, 230, 67 S.

Ct. 1146, 1152 (1947); First Gibraltar Bank, FSB v. Morales

, 19

F.3d 1032, 1039 (5th Cir. 1994) (citing California v. ARC Am.

Corp. , 490 U.S. 93, 101, 109 S. Ct. 1661, 1665 (1989)).

15 not subject to foreclosure to secure payment of accrued child

support).

The Supremacy Clause enables Congress to override state

laws if it so intends. Deference to our federalism counsels a

presumption that areas of law traditionally reserved to the states,

like police powers or property law, are not to be disturbed absent

the “clear and manifest purpose of Congress.” 6 But preemption may

b e implied if state and federal laws conflict or a state law

thwarts the “accomplishment and execution” of congressional intent.

See Pacific Gas & Elec. Co. v. State Energy Resources Conservation

& Dev. Comm’n

, 461 U.S. 190, 204, 103 S. Ct. 1713, 1722 (1983).

Moreover, if Congress has passed a pervasive federal legislative

scheme leaving states no room to supplement, then state law will

also be preempted. S ee First Gib raltar , 19 F.3d at 1039 (citing

Pacific Gas

, 46 1 U.S. at 204, 103 S. Ct. at 1722). Sandra has

attemp ted to demonstrate (1) express preemption; (2) that

§§ 523(a)(5) and 522(c) of the Bankruptcy Code create so pervasive

a set of regulations as to impliedly preempt state laws regarding

exempt property, and (3) th at § 522(c) conflicts irreconcilably

with the Texas homestead exemption. Express preemption is

precluded by our rejection of Sandra’s proffered interpretation of

§ 522(c).16 The Bankruptcy Code’s “policy” of strengthening

enforcement of family support obligations is a weak reed on which

to support implied preemption. Although § 522(c) entitles these

obligations to special status against property otherwise exempt in

bankruptcy, neither that provision nor § 523(a)(5), the provision

for nondischargeability of family support obligations, which

§ 522(c) incorporates, expresses the full intent of the Code. A

debtor who owes family support obligations is afforded a great deal

of latitude and protection. First, the filing of the bankruptcy

case automatically stays payments of support obligations, as it

does all other payments to pre-petition creditors. See 11 U.S.C.

§ 362(a). An ex-spouse deprived of certain family support payments

must file an adversary proceeding in bankruptcy court t o enforce

nondischargeability, and even then, the court may order reduction

of certain payments if it finds that the defaulting spouse would

suffer “hardship.” S ee 11 U.S.C. §§ 523(c), 523(a)(15). A debtor

may obtain a Chap ter 7 discharge or confirm a Chapter 13 plan

without b eing current in family support obligations. Bankruptcy

law presently contains neither a pervasive or consistent approach

toward family support obligations.

Reliance on the exemption provision of the Code as a

source of implied preemption is also misplaced. Congress

specifically preserved state exemptions under § 522(b), rejecting7 See Report of the Comm’n on the Bankruptcy Laws of the United

States, H.R. Doc. No. 93-137, 93rd Cong., 1st Sess., pts. I & II,

at 4-503 (1973).

8 See id. at 549-50.

9 The Texas Supreme Court has observed that a lien is never

valid (in the sense of being enforceable) unless it secures payment

for certain debts provided for in Tex. Const. Art. XVI, § 50. S ee

Benchmark Bank v. Crowder , 919 S.W.2d 657, 660 (Tex. 1996). This

doe s not mean, however, that a lien that is not valid and

enforceable is completely without effect. As one Texas appellate

court has remarked,

17 a proposal for uniform federa l exemptions. 7 Congress allowed

states to def ine the existence and limits of exemptions. 8 By

expressly preserving a role for the state law in the Bankruptcy

Code, it is clear that Congress has not devised a policy on federal

exemptions so perva s ive as to leave no room for a state to

supplement bankruptcy law with respect to exemptions.

Even more important, there is no direct conflict between

compliance with the Bankruptcy Code a nd the Texas homestead law.

We concluded earlier that in specifying certain debts for which the

exempt property is still liable, § 522(c) leaves the parties to

their state law collection rights. To execute a judgment against

Texas p roperty, a judgment creditor must rely on the state

mechanism for enforcement. Although Texas law does not permit the

seizure of a homestead for a family support obligation, Sandra can

still perfect a judgment lien against the pr operty in question,

even if it is a homestead. The property is thus liable, although

it is immune from seizure while it is a homestead. 9 T his is all[u]nder [Texas Property Code] statutory provisions,

a judgment lien is “perfected,” or brou ght into

existence against a debtor's property, by recording

and indexing an abstract of the judgment in the

county where the property lies. The debtor’s

homestead is not exempt from the perfected lien;

ra ther, the homestead is exempt from any seizure

attempting to enforce the perfected lien.

Exocet Inc. v. Cordes

, 815 S.W.2d 350, 352 (Tex. App.-Austin 1991,

no writ).

18 § 522(c)(1) requires. S ee Davis

, 188 B.R. at 550

. Section

522(c)(1) assures that the debtor remains ultim ately liable, and

the property or proceeds from the sale of property may be subject

to seizure if the property ever ceases to be the debtor’s10 As a principle of Texas law, “a judgment lien attaches to the

judgment debtor’s interest if he abandons the property as his

homestead before he sells it.” H offman v. Love

, 494 S.W.2d 591,

594 (Tex. Civ. App.-Dallas 1973, no writ). For example, if the

debtor acquires a second homestead before selling the first

homestead, the first homestead is deemed abandoned and is no longer

exempt from seizure. S ee England v. Federal Deposit Ins. Corp.

, 975 F.2d 1168, 1175 (5th Cir. 1992). Furthermore, if the debtor

retains the property as his homestead until he sells it, unless the

debtor reinvests the proceeds of the sale in another homestead

within six months from the date of sale, the proceeds are subject

to seizure by creditors. See Sharman v. Schuble , 846 S.W.2d 574,

576 (Tex. App.-Houston [14th Dist.] 1993, no writ); Tex. Prop. Code

§ 41.001(c). Even during this six month window, if the debtor

purchases a new homestead any remaining proceeds from the sale of

the first homestead are ins tantly rendered non-exempt. S ee

England , 975 F.2d at 1174.

These principles allayed our concerns about possible

mootness arising from Cullen Davis’s sale of one homestead and

timely purchase of another homestead while this case was pending.

19 homestead. 10 Because the Texas homestead law does not bar the

attachment of a perfected lien to homestead property, it does not

conflict with § 522(c)(1).

Section 522(c) also f ails to conflict with Texas law

because it is not s elf-executing, it provides no means for

enforcing the creditor’s right. Fed. R. Civ. P. 69(a) explains

why:

Process to enforce a judgment for the payment

of money shall be a writ of execution . . . .

The procedure on execution, in proceedings on

and in aid of a judgment, and in pro ceedings

on and in aid of execution shal l be in

accordance with the practice and procedure of

the state in which the district court is held

,

e xisting at the time the remedy is s ought,

except that any statute of the United States

governs to the extent that it is applicable

.20

(emphasis added). Pursuant to Rule 69(a), incorporated by Bankr.

R. 7069, Texas’s enforcement mechanisms govern in bankruptcy court

in the absence of a federal execution statute. The Texas turnover

statute does not permit seizure and sale of a homestead to satisfy

a family support obligatio n. See Tex. Civ. Prac. & Rem. Code

§ 31.002.

CONCLUSION

Cullen and Karen Davis were entitle d to exempt their

homestead from claims of creditors under Te xas and federal

bankruptcy law, and they did so. Sandra is entitled, under

§ 522(c)(1), to enforce her nondischargea ble judgment for family

support obligations notwithstanding the exemption claim, but her

remedy must be in accord with Texas law, since § 522(c) is not an

execution statute and does not preempt relevant Texas law. Either

Texas or, perhaps , the U.S. Congress could alter this situation,

but it is our duty to enforce the present statute.

The judgment of the district court, af firming the

judgment of the bankruptcy court, is AFFIRMED

.DENNIS, Circuit Judge, with whom POLITZ and PARKER, Circuit Judges,

join, dissenting:

“Property that is properly exempted under § 522 [of the

Bankruptcy Code] is ( with some exceptions ) immunized against

liability for prebankruptcy debts. § 522(c).” O wen v Owen , 500

U.S. 305, 308 (1991) (emphasis added). The issue in this case is

whether the bankruptcy court’s judgment in favor of the debtor’s

former spouse against the debtor for unpaid alimony, maintenance,

and child support debts falls within one of § 522(c)’s exceptions

so that the debtor’s otherwise exempted property is not immunized

against liability, seizure and sale for their payment. Because the

majority opinion decides this question in diametric contradiction

to § 522(c)’s clear language, and in conflict with the decisions of

the Supreme Court, other circuits, and numerous bankruptcy courts

in this and other circuits that have followed the panel opinion in

this case, I respectfully dissent.

I. Background

Appellant Sandra Davis (Sandra) and her former husband, Thomas

Cullen Davis (Mr. Davis), the debtor in bankruptcy, were divorced

in 1968. Pursuant to their property settlement, support and child

custody agreement, and divorce judgment, Mr. Davis agreed to make

monthly payments to Sandra through January 1, 1991, and thereafter

to pay her other sums subject to certain contingencies. Mr. Davis

made all payments until he declared bankruptcy in 1987. In 1979,

Mr. Davis married Karen Joyce Davis, also a debtor in this action.

In 1984, Mr. Davis acquired property that he claimed as his

homestead. The property was unencumbered and valued at $500,000.

Mr. Davis and Mrs. Karen Davis filed a voluntary Chapter 7

petition in 1987, which was converted to a Chapter 11 case. They

elected to exempt from the estate property that was exempt under

the state homestead exemption laws. In an adversary bankruptcy

court proceeding, Mr. Davis sought a d etermination that his

indebtedness pursuant to the property settlement agreement and22

divorce judgment was dischargeable. Sandra counterclaimed,

asserting that the indebtedness was nondischargeable under §

523(a)(5). In 1991, the parties compromised and acceded to a final

consent judgment by the bankruptcy court declaring the debt to be

for nondischargeable alimony, maintenance, and child support under

§ 523(a)(5) and awarding Sandra a principal sum of $250,000 plus

$50,000 in attorney’s fees. T hus, the judgment Sandra seeks to

enforce is not a “divorce judgment” as stated by the majority, but

a judgment of the bankruptcy court based on Mr. Davis’s debts for

unpaid alimony, child support, and maintenance

.

Sandra moved in bankruptcy court for turnover relief ordering

Mr. Davis to execute a warranty deed conveying the homestead to her

to enforce the bankruptcy court judgment. After a hearing, the

bankruptcy court concluded that Sandra could not levy upon Mr.

Davis’s exempted homestead property to collect her judgment for

alimony , maintenance, and child support, holding that the

Bankruptcy Code does not preempt the state constitutional homestead

exemption law. I n re Davis

, 170 B.R. 892, 898 (Bankr. N.D. Tex.

199 4). Sandra appealed. The district court affirmed. In re

Davis, 188 B.R. 544 (N.D. Tex. 1995). Sandra appealed to this

court.

A panel of this court vacated the district and bankruptcy

court judgments and remanded for further proceedings, holding that

alimony, maintenance, and child support debts fall within the

exceptions provided for by § 522(c) to the immunity of exempted

property against liability for prebankruptcy debts; that the state

homestead exemption laws were s uperseded by the Bankruptcy Code;

and that the debtor’s property is liable to seizure and sale to pay

the bankruptcy court’s judgment against the debtor in favor of his

former spouse based on his unp aid alimony, child support, and

maintenance debts. D avis v. Davis

, 105 F.3d 1017 (5th Cir. 1997).

II. Discussion23

Property that is properly exempted under § 522 is, as a

general rule, immunized by § 522(c) against liability for

prebankruptcy debts. O wen, 500 U.S. at 308. Certain debts are

excepted from the protection of § 522(c), however, for which

e xempted property is liable: (1) nondischargeable debts for

alimony, maintenance, and child support, § 523(a)(5), and taxes,

§ 52 3(a)(1); (2) valid liens that may not be avoided under the

trustee’s powers and certain tax liens in exempt property that are

not affected by the bankruptcy; and (3) nondischargeable debts for

fraud and willful injury owed to a federal depository institutions

regulatory agency acting as a conservator, receiver, or liquidating

agent under §§ 523(a)(4) and (6). The debt at issue in the present

case is a debt of a kind specified in § 523(a)( 5), which makes

nondischargeable any debt “to a spouse, former spouse, or child of

the debtor, for alimony to, maintenance for, or support of such

spouse or child, in connection with a separation agreement, divorce

decree or other order of a court of record.

. . or property

settlement agreement. . . .” 11 U.S.C. § 523(a)(5).

Property that is exempted under § 522 and th erefore immune

from all other liability is liable for and may be seized to pay

nondischargeable alimony, maintenance, and child support debts and

other obligations excepted from § 522(c) protection. S ee Owen, 500

U.S . at 308 (“Property that is properly exempted under § 522 is

( with some exceptions ) immunized against liability for

prebankruptcy debts.”) (emphasis added); Walters v. United States

Nat’l Bank of Johnstown , 879 F.2d 95, 97 (3d. Cir. 1989) (Tax and

alimony and child support debts “are neither dischargeable nor

exemptible.”); R ESNICK

, W EINT RAUB & R ESNICK

, B ANKRUPTCY L AW M ANUAL ¶ 4.08

at 4-54 (4th ed. 1996) (“Exempt property may be seized to pay

nondischargeable t ax liabilities and obligations to pay alimony,

maintenance, or support.”); 2 D AVID G. E PSTEIN ET AL

., B ANKRUPTCY

, § 8-1

n.17 (1992) (“Exemptions are not effective, however, with respect24

to two types of nondischargeable debts: tax debts and debts for

alimony, maintenance, or child support.”); D O N C AMPBELL ET AL

.,

C REDITORS ’ R IGHTS H ANDBOOK

, A G UIDE TO THE D EBTOR -C REDITOR R ELATIONSHIP

, §

20.03[4] (1993) (“Exempt property may be used to satisfy certain

tax debts or for obligations for child support or alimony.”); D AVID

G. E PSTEIN & S TEVE H. N ICKLES

, D EBT

, B ANKRUPTCY

, A RTICLE 9 AND R ELATED L AWS

,

759 (1994) (“After bankruptcy, creditors with domestic claims

excepted from discharge by section 523(a)(5) will have recourse to

exempt property.”).

This reading of § 522 is in accord with its legislative

history. Referring to that section the Senate report, with which

the House report is virtually identical, reads:

Subsection (c) insulates exempt property from

prepetition claims other than tax claims

(whether or not dischargeable), and other than

alimony, maintenance, or support claims that

are excepted from discharge. The rule of L ong

v. Bulla rd , 117 U.S. 617 (1886), is accepted

with respect to the enforcement of valid liens

on nonexempt property as well as on exempt

property.

S. R EP

. N O

. 95-989, 95th Cong., 2d Sess. 76 (1978), reprinted in

1978 U.S.C.C.A.N. 5787, 5862; see H.R. R EP

. N O

. 95-595, 95th Cong.,

2d Sess. 361 (1978), reprinted in 1978 U.S.C.C.A.N. 6317. The

dr afters of the exemption section thus were aware that exempt

property would be protected ag ainst some, but not all,

nondischargeable debts. See Walters , 879 F.2d at 97.

In the present case, the panel opinion’s interpretation of §

522(c) is confirmed by the legislative history of § 522(c)(3), the

third exception added by the Crime Control Act of 1990, Pub. L. No.

101-647, relating to the enforcement of certai n nondischargeable

debts owed to a federal depository institutions regulatory agency

acting as a conservator, receiver, or liquidating agent. Referring

to that new exception, the section-by-section analysis pursuant to25

the remarks of Representative Charles Schumer on the Banking Law

Enforcement section of the Crime Control Act of 1990 provides:

Currently, section 522(c) provides that the

property exemptio ns described elsewhere in

section 522 do not apply in the case of tax

obl igations, alimony and child support

responsibilities

, or security agreements in

which the otherwise exempt property is pledged

as collateral. The new exception would apply

to certain debts owed by institutionaf filiated parties to federal depositary

institutions regulato ry agencies acting in

their capacity as receiver, conservator, or

liquidating agent. Specifically, the debts

covered are debts for fraud or defalcation

while acting in a fiduciary capacity,

embezzlement, or larceny, as described in

section 523(a)(4); and for willful and

malicious injury to another entity or to the

property of another entity, as described in

section 523(a)(6). These acts represent the

highest form of financial criminality against

a federally insured depositary institution by

a person entrusted under the law with the care

and safekeeping of the institution.

136 C ONG

. R EC

. E3687 (Nov. 2, 1990) (emphasis added). Also, Senator

Biden, Chairman of the Senate Judiciary Committee, remarked:

I accepted changes dr afted by the House only

because they maintained the core Senate-passed

bankruptcy language that prevents all S&L

wrongdoers from discharging their debts by

filing for bankruptcy. T he final language

specifically preempts State homestead laws,

which would otherwise allow S&L crooks to

retain lavish homes through the excessive

protections in some State bankruptcy laws

. Mr. President. . . [u]nder the bill,

major S&L offenders will spend time behind

bars. Their assets will be seized. And every

possible dollar will be recovered for

depositors and taxpayers.

136 C ONG

. R EC

. S17602 (Oct. 27, 1990) (emphasis added).26

Bankruptcy courts consistently have interpreted t he tax and

tax lien provisions of §§ 522(c)(1) and (2), correlative to the

alimony provision of § 522(c)(1), to authorize creditors and

lienholders to reach the exempted property of the debtor to satisfy

tax liabilities. S ee, e.g., In re Holl

, 35 B.R. 206 (Bankr. D.

Haw. 1983) (IRS w as able to levy on exempted proceeds of sale of

homestead to satisfy a debt for a tax nondischargeable under §

523(a)(1)); In re Hebermehl

, 132 B.R. 651 (Bankr. D. Colo. 1991)

(same as to exempted wages); In re Braddock , 149 B.R. 636 (Bankr.

D. Mont. 1992) (tax lien took priority over homestead exemption as

to exempt proceeds derived from sale of homestead). A ccord

Davenport v. United States , 136 B.R. 125 (W.D. Ky. 1991); Crow v.

Long

, 107 B.R. 184 (E.D. Mo. 1989). S ee also In Re Reed

, 127 B.R.

244 (Bankr. D. Haw. 1991) (tax lien could be enforced against

exempt pension plan contributions).

Section 522(c)(1) was not intended, as the majority asserts,

merely to preserve judgments and judicial liens securing alimony,

m aintenance, and child support debts against exempted property.

That purpose is effectuated by § 522(f)(1), which excepts from the

debtor’s right under § 522 to avoid the impairment of the fixing of

liens on exempted property, inter alia

, judicial liens securing

alimony, maintenance, and child support debts. Nor was § 522(c)(1)

intended merely to put alimony or child support judgment creditors

on the same footing with other creditors holding nondischargeable

claims. That result is expressly accomplished by § 523(a)(5). The

context in which § 522(c)(1) occurs, the text of the Bankruptcy

Code as a whole, including particularly §§ 522(b), (c) and (f) and

§ 523(a)(5), in pari materia

, and the legislative history of those

provisions, clearly show that § 522(c)(1) does no t redundantly

duplicate the lien preservation func tion of § 522(f)(1)(A)(i) or

the exception to discharge function of § 523(a)(5). By §

522(c)(1), Congress clearly intended to insulate nondischargeable11 The ma jority’s failure to acknowledge and address all but

one of these cases is difficult to understand.

27 alimony, child support, and maintenance debts from the effects of

the debtor’s exemptions.

The en banc majority erroneously concludes that the Bankruptcy

Code does not preempt the state homestead exemption laws. They

fail to recognize the scope of the federal preemption of the field

of bankruptcy law or the exclusivity of the federal-law basis of

the debtor’s qualified right to exempt property from the bankruptcy

estate. The power of Congress to establish uniform laws on the

subject of bankruptcies throughout the United States is

unrestricted and paramount. U.S. C ONST . art. I, § 8, cl. 4;

International Shoe Co. v. Pinkus

, 278 U.S. 261, 265 (1929); Pereira

v. United Jersey Bank, N.A.

, 201 B.R. 644, 678 (S.D.N.Y. 1996).

Congress exercised this power by enacting national, uniform

bankruptcy laws, the most recent of which is the Bankruptcy Code,

which necessarily exclude or displace any conflict ing state

regulation. I nternational Shoe

, 278 U.S. at 265

. Consequently,

states may not pass or enforce laws to interfere with or complement

the Bankruptcy Code or to provide additional or auxiliary

regulations. See id. at 266.

A. Recent Decisions Following the Davis v. Davis Panel Opinion

Analysis 11

A number of recent circuit court, bankruptcy appellate court,

and bankruptcy courts have agreed with some or all of the foregoing

principles. Many of those courts have followed, quoted or cited

the Davis v. Davis panel opinion in the present case with approval.

See Leicht v. Bruin Portfolio, LLC (In re Leicht), 2 22 B.R. 670,

677, 678, 679 n.9 (B.A.P. 1st Cir. 1998) (“[A]lthough through §

522(b) Congress provided states with the opportunity to define the

category and content of exemptions resident debtors may invoke in28

bankruptcy

. . ., it defined the operative effect of exemptions in

bankruptcy through §§ 522(c) and (f).

. . . Section 522(c)

completes the Code’s treatment of nondischargeable debts,

complementing inter alia §§ 523(a), 5 24(a)(3) and 727(b), by

providing that exempt property is immunized against liability for

prebankruptcy debts, including ‘some, but not all, nondischargeable

debts’.

. . . § 522(c) may not be a one-way street. It may

operate to subject exempt property to liabilities for which it

could not be reached under state law.” ) (qu oting Davis, 1 05 F.3d at 1020,

1022-23); In re Gregory, 214 B.R. 570, 574 (Bankr. S.D. Tex. 1997) (“Section 522(c)(1) of

the Bankruptcy Code provides that exempt property can be used to pay certain pre-petition

debts such as those for taxes under § 523(a)(1) and for alimony and child support under

§ 523(a)(5). These debts are neither dischargeable nor exemptible. Because these

provisions of the Bankruptcy Code preempt state homestead exemption law , ‘the state

homestead exemption law is inoperative’ against claims pursuant to § 523(a)(1) and §

523(a)(5) and creditor s with claims under these provisions are ‘entitled under the

Bankruptcy Code to proceed against the debtor’s otherwise exempted property.’”) (quoting

Davis, 1 05 F.3d at 1020, 1023); S & C Home Loans, Inc., v. Farr (In re Farr), 2 24 B .R.

438, 439 (Bankr. N.D. Cal. 1998) (“A debtor’s rights under section 522(c) are governed by

federal law, not state law. The clear intent of Congress in section 522(c) was to preserve

property exempted in bankruptcy for satisfaction of tax and support obligations.”) (citing

Davis, 105 F.3d at 1021-23); I n re Pascucci, 225 B.R. 25, 28 (Bankr. D. Mass. 1998)

(“‘[F]ederal law determines whether property is exempted and immunized against seizure

and sale for prebankruptcy debts.’”) (quoting Davis, 105 F.3d at 1022); I n re Van Zant,

210 B.R. 1011, 1015 (Bankr. S.D. Ill. 1997) “[W ]hile state law identifies and quantifies the

property a debtor may exempt from the bankruptcy estate in those states that have ‘optedout’ of the federal exemptions, the Code does not adopt or preserve the state exemptions

with all their built-in limitations.”) (citing Davis, 105 F.3d at 1022-23); In re Richardson, 224

B.R. 804, 808 (Bankr. N.D. Okla. 1998) (“‘The power of Congress to establish uniform laws

on the subject of bankruptcies throughout the United States is unrestricted and paramount.29

. . . Consequently, states may not pass or enforce laws to interfere with or complement the

Bankruptcy Code or to provide auxiliary regulations.’”) (quoting Davis, 105 F.3d at 1022).

See also Patriot Portfolio, LLC v. Weinstein (In re Weinstein), 164 F.3d 677, 683 (1st Cir.

1999) (Reavley, J.) (“We recognize that Congress afforded significant deference to state

law by allowing bankruptcy debtors to choose state exemptions and b y further allowing

states to opt out of the federal exemption scheme entirely. Yet,

. . . the state’s ability to

define its exemptions is not absolute and must yield to conflicting policies in the

Bankruptcy Code.”) (citing Owen, 500 U.S. at 313).

B. Response to Majority’s Erroneous Reasoning

The majority’s decisio n is based on two arguments: (1) that § 522(c) of the

Bankruptcy Code is ambiguous as to whether the types of creditors’ claims that §§

522(c)(1)-(3) except from im munization of exempted property against liability may be

enforced against exempted propert y after bankruptcy; and (2) that the m ost plausible

interpretation of § 522(c) is that it “leave[s] exempt property exposed to post-bankruptcy

liability only to the extent it would have been exposed if the bankruptcy had not occurred.”

Maj. Op. at 7-8. Both arguments are incorrect for the many reasons discussed below.

Perhaps the best short refutation of the majority’s arguments is contained in

Professor Resnick’s explanation of how § 522(c) is designed to protect the debtor’s

exempted property from most, but not all, nondischarged creditors’ claims:

It is easy to see that if property that is exempt under the Code

but not under state law is available to credi t ors with

nondischargeable claims, the effect of the exemption may be

wiped out.

Congress was aware of this problem, and, for this

reason, the Code pro vides that exempt property may not be

levied upon for any prepetition debt, whether or not the debt is

discharged. There are, however, several exceptions. Exempt

property may be seized to pay nondischargeable tax liabilities

and obligations to pay alim ony, maintenance, or support.

Moreover, valid liens that may n o t be avoided under the

trustee’s powers and certain tax liens in exempt property are

not affected by the bankruptcy. A third exception was added

in 1990 relating to the enforcem ent of certain

nondischargeable debts owed to a federal depository30 institutions regulatory agency acting as a conservator,

receiver, or liquidating agent.

R ESNICK

, supra ¶ 4.08[1], at 4-53 to 4-54 (footnotes omitted).

Thus, § 522(c) is designed to perform two essential functions. In general, it shields

exempted property from liability to seizure and sale for the payment of nondischargeable

debts. As exceptions to that general rule, it allows piercings of the shield and permits

levies upon exemp ted property for the payment of a small number of certain types of

nondischargeable debts. The exceptions are narrowly and carefully drawn to uniformly

further several policies deemed by Congress to be of national importance.

The indiscriminate rendering of § 522(c) by the majority opinion erroneously

obliterates the important distinction Congress drew between the small class of particular

types of nondischargeable debts specified by § § 522(c)(1)-(3) and all other

nondischargeable debts listed in § 523(a). The majority wrongfully relegates needy former

spouses with unpaid alimony and child support claims, and ot her claim ants given

legislated preference by §§ 522(1)-(3), to the ordinary nondischargeable creditor class,

forces them to compete with all comers for basic sustenance from the scarce non-exempt

assets of the debtor, and defeats the goals envisioned by Congress in its well thought out

and deliberately crafted legislation.

The majority opinion does not follow the plain meaning of the Bankruptcy Code’s

words. Section 522(c) is not ambiguous, especially when it is read within the context of

the Code as a whole. Contrary to the majority opinion, § 522(c)’s exception of specific

debts named therein from the effects of the debtor’s exemptions is not qualified according

to whether the debt is accompanied by a lien. The majority’s attempt to read such a

qualification or distinction into § 522(c) is an unconcealed attempt to s ubstitute its own

policy making for that of Congress. W hen the words of § 522(c) are applied as written and

within the context of the Code as a whole, they clearly and unambiguously conflict with and

preempt the state homestead exemption laws with respect to the debtor’s alimony, child

support, and maintenance obligations. Section 105 of the Bankruptcy Code

unquestionably authorizes a bankruptcy court to issue any order, p rocess, or judgment12 The current definition of “exemption” in Black’s Law Dictionary i s “[a] privilege

allowed by law to a judgment debtor, by which he may retain property to a certain amount

or certain classes of property , free from all liability to levy and sale on execution,

attachment, or bankruptcy.” B LACK ’ S L AW D ICTIONARY 571 (6th ed. 1990).

31 necessary to carry out the provisions of the Code, including an order to seize and sell the

debtor’s property to satisfy the bankruptcy court’s judgment. Federal Rule of Civil

Proce dure 69(a) must be used by federal courts in accordance with other applicable

statutes of the United States to enforce, not thwart, federal court judgments. The majority

is clearly wrong in ignoring §105 of the Bankruptcy Code and in misapplying Federal Rule

of Civil Procedure 69(a) to unpreempt and exalt the state homestead exemption laws over

the Bankruptcy Code and to defeat the enforcement of the bankruptcy court’s judgment.

1. The Meaning of “Exemption” and “Liability”

Section 522(c) is not “ambiguous” as the majority contends. The plain meaning of

th e term “exemption,” as used in § 522 of the Bankruptcy Code, refutes the majority’s

argument that the term “liable,” as used in that section, means that a debtor’s property is

only subject to a judgment lien, and remains immune from seizure and sale.

The Supreme Court has defined “exemption” as the “right

. . . which withdraws the

property from levy and sale under judicial process .” W hite v. Stump, 266 U.S. 310, 313

(1924) (emphasis added). This court has defined “exemption” as “the freedom of property

o f debtors f rom liability to seizure and sale under legal process for the payment of their

debts .” C lark v. Nirembaum, 8 F.2d 451, 452 (5th Cir. 1925), (emphasis added) (citing

25 C.J. § 8 (now 35 C.J.S. § 1 (1960)), c ert. denied, 270 U.S. 649 (1926). Similarly,

bankruptcy courts have defined an “exemption” as a “‘privilege allowed by law to a

judgment debtor, by which he may hold property to a certain amount or certain classes of

property, free from all liability to levy and sale on execution or attachment .’” I n re Komet,

104 B.R. 799, 806 (Bankr. W.D. Tex. 1989) (emphasis added) (quo ting B L ACK ’ S L AW

D ICTIONARY 571 (5th ed. 1979). 12 S ee also In re Hudspeth, 92 B.R. 827, 830 (Bankr. W.D.

Ark. 1988) (same); In re Pritchard, 75 B.R. 877, 878 (Bankr. D. Minn. 1987) (same).

“Exemption” also has been defined as “a right given by law to a debtor to retain a portion13 See Maj. Op. at 17-18 & n.9.

32 of his personal property free from seizure and sale by his creditors under judicial process.”

31 A M

. J UR

. 2 D Exemptions § 1 (1989).

This definition of exemption is critical to an understanding of the meaning of the

word “liable” in 11 U.S.C. § 522:

(c) Unless the case is dismissed, property exempt under this

section is not liable during or after the case for any debt of the

debtor that arose, or that is determined under Section 502 of

this title as if such debt had arisen, before the commencement

of the case, except

-- (1) a debt of a kind specified in section

. . . 523(a)(5) of

this title.

The word “liab le,” as used in the section of the Bankruptcy Code entitled

“Exemptions,” means “liable to levy and sale on execution or attachment.” I n re Komet,

104 B.R. at 8 0 6. More specifically, the statutory reference to “liable,” in the context of

exemptions, means that property exempted by a debtor under “Federal law” or “State or

local law” pursuant to § 522(b)(2)(A) is free from liability for seizure and sale by his or her

credi tor under judicial process u nless the debt is, inter alia, a debt “to a spouse, former

spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse

or ch ild, in connection with a separation agreement, divorce decree or other order of a

court of record.” 11 U.S.C. § 523(a)(5). Because alimony and child support debts are an

exception to the debtor’s privilege to exempt certain property from seizure and sale ( see

discussion infra of “exceptions to exemptions”), it follows that the property is lia ble for

seizure and sale by a former spouse with a judgment for alimony and child support that is

nondischargeable under § 523(a)(5).

The majority asserts without any support in federal law that “liable” in § 522(c)(1)

means only that an alimony and child support creditor can “perfect a judgment lien against

the property.

. . although it is immune from seizure.” The majority cites only Texas law for

the proposition tha t Congress intended “liable” in § 522(c)(1) as an esoteric proxy for

“nondischargeable debt” and “nonavoidable lien.” 13 “Liable” taken in its usual sense and33

as used in § 522, however, means “liable for seizure and sale” and not merely “liable to

attachment by a nonavoidable but unenforceable lien.” Section 522(c) of the Bankruptcy

Code expressly abrogates a debtor’s privilege allowed by state law by which he may hold

property free from all liability to levy and sale under legal process for the payment of debts

defined by § 523(a)(5). By denying the debtor this privilege of exemption for certain

nondischargeable debts, § 522(c) permits the property to be s eized and sold to satisfy

these obligations.

2. Section 522's “Exception to Exemptions” For Family Support Debts

The Bankruptcy Code does not confer upon a debtor an absolute or unqualified

right to exempt property from seizure and sale. Section 522 expressly makes

nondischargeable debts for alimony, m aintenance or child support an e xception to the

debtor’s general privilege to exempt certain property from liability for seizure and sale.

Thus, property exempted under § 522 is nevertheless liable for seizure and sale to satisfy

debts specified in § 523(a)(1) (tax obligations) and § 523(a)(5) (child and spousal support).

See In re Citrone, 159 B.R. 144, 146 (Bankr. S.D.N.Y. 1993). The majority uses circular

and obverse reasoning in an attempt to show that Texas state exemption law (by virtue of

Fed. R. Civ. P. 69(a)) “reverse preempts” federal cour t enforcement of judgments for

nondischargeable alimony and support debts under § 522(c) of the Bankruptcy Code. To

the contrar y, however, Congress, by the specific terms of § 522 and its constitutional

power, has superseded and preempted the effect of the state exemption law upon this

particular kind of debt. While the Bankruptcy Code all ows a debtor to claim state

exemptions, it also revokes this privilege as to the debtor’s nondischargeable child and

spousal support obligations.

In addition to the numerous authorities cited above, other bankruptcy scholars and

practitioners interpret 11 U.S.C. § 522(c) as establishing e xceptions to the exem ptions

provided g enerally under § 522(b): The bankruptcy exemptions do not apply to protect

property from seizure and sale to satisfy family support obligations. S ee Howard N. Cayne

et al., Overview of Comprehensive Thrift and Bank Fraud Prosecution Act of 1990 and the

Enforcement Provisions of the Financial Institutions Reform, Recovery and Enforcement34

Act of 1989, in C IVIL AND C RIMINAL L IABILITY OF O FFICERS

, D IRECTORS

, AND P ROFESSIONALS :

B ANK &

T HRIFT L ITIGATI ON IN THE 1 990' S

, at 545, 562-63 (PLI Comm. Law & Practice Course

Handbook Se ries, PLI Order No. A4-4355, 1991) (“Under existing law, subsection (c)

provides that the bankruptcy exemptions do not apply in the case of

. . . alimony and child

support payments.”); see also John K. Villa & Robert M. Krasne, A Preliminary Review of

Banking Enforcement Provisions Contained in Title XXV of the Crime Control Act of 1990

,

in C IVIL AND C RIMINAL L IABILITY OF O FFICERS

, D IRECTORS

, AND P ROFESSIONALS : B ANK & T HRIFT

L ITIGATION IN THE 1990' S

, at 597, 616 (PLI Comm. Law & Practice Course Handbook Series,

PLI Order No. A4-4355, 1991) (Section 2522 of the Crime Control Act of 1990 “amends the

U.S. Bankrupt cy Code, 11 U.S.C. §§ 523, 522, 365, 507 and 101, to create (i) two

additional exceptions to the discharge of indebtedness, through bankruptcy, [and] (ii) a

new category of obligations to which property exemptions do not apply

. . . .”). Significantly,

section 2522(b) of the Crime Control Act of 1990, which amended 11 U.S.C. § 522(c), is

entitled “EXCEPTION TO EXEMPTIONS.” Crime Control Act of 1990, PL 101-647, 104

Stat. 4789, 4866 (Nov. 29, 1990); see also In re Colonial Realty Co., 980 F.2d 125, 133

(2d Cir. 1992) (Section 2522 “add[ed] § 522(c)(3) as an additional exception to § 522

exemption”).

One commentator has declared that “[a]t present, a person with a claim for alimony,

support, or maintenance has a solution under bankruptcy law.

. . . If the debtor becomes

insolvent, and a voluntary or involuntary petition in bankruptcy is filed, the homestead will

not be exempt from this type of prebankruptcy debt.” Donna Litman Seiden, There’s No

Place Like Home (Stead) in Florida

-- Should It Stay That Way?, 18 N OVA L

. R EV

. 801, 859

(W inter 1994). The author’s reasoning follows that of this dissenting opinion: Because

the Bankruptcy Code has the effec t of subordinating the exemption to certain debts,

creditors with claims for alimony, maintenance, or support can reach exempt property, by

means of a forced sale to satisfy this preferred debt, regardless of the state law exemption.

Id. at 815 & n. 257. 3. Preemption35

To decide whether the Bankruptc y Code preempts the Texas homestead exemption

laws, a court must begin by comparing § 522(c) w i th the state homestead constitutional

and st atutory provisions to determine if there is a conflict. Section 522(c) provides that

during or after bankruptcy, exempt property is not liable for any debt that arose prepetition,

or is deemed to have so ari sen under § 502, except those debts specified in

subparagraphs (1) through (3). See 11 U.S.C. §§ 522(c)(1) - (3). This list includes: (1)

debts for certain taxes and customs duties; (2) debts for alimony, maintenance, or support;

(3) liens that cannot be avoided; (4) liens that are not void; (5) tax liens; and (6) certain

nondischargeable debts owed to federal depository institutions. See id.

Congress has plenary power to enact uniform federal bankruptcy laws. S ee U.S.

C ONST

. art. 1, § 8, cl. 4; International Shoe

, 278 U.S. at 265. Consequently, "[s]tates may

not pass or enforce laws to interfere with or complement the Bankruptcy Act or to provide

additional or auxiliary regulations." I nternational Shoe

, 278 U.S. at 2 65 (noting that the

intent of Congress in establishing uniform bankruptcy laws necessarily excludes

inconsistent state regulation). I recognize that Congress afforded significant deference

to state law by allo wing bankruptcy debtors to choose state exemptions and by further

allowing states to opt out of the federal exemption scheme entirely. See Weinstein, 164

F.3d at 683 (citing In re Boucher

, 203 B.R. 10, 12 (Bankr. D. Mass. 1996) (citing 11 U.S.C.

§ 522(b))). Yet, such deference does not warrant the conclusion that the detailed

exceptions in § 522(c) to the general imm unity from liability of the "property exempted"

provided f o r by the same section must yield to or be controlled by the state exemption

laws. As the Supreme Court recognized in discussing the interplay between § 522(f) and

state exemption exceptions in Owen

, the state's ability to define its ex e mptions is not

absolute and must yield to conflicting policies in the Bankruptcy Code. S ee Owen

, 500

U.S. at 313.

Only by adding a heavy Texas spin to gloss over the plain words and meaning of

§ 522(c) is the majority able to close its eyes to the obvious conflict between the state laws

that exempt homestead property from liability to seizure and sale for alimony a nd child

support debts and § 522(c)(1), which excepts nondischargeable alimony and child support14 See Maj. Op. at nn.9-10.

15 See Maj. Op. at n.10.

36 debts from the effects of that exemption. The majority struggles to avoid acknowledging

the conflict by theorizing that § 522(c)(1) does not mean what it says but strangely enough

has a meaning that produces substantially the same result Texas courts have reached

when a Texas court judgment creditor seeks to enforce her alimony and child support

decree based solely on state law against the judgment debtor’s homestead: The former

spouse may have her lien attached to the property but she cannot enfor ce it until the

debtor dies or abandons his homestead. 14 In fact, as we have learned during the course

of this case, under Texas law, she cannot enforce it against the proceeds of his sale of the

homestead if he invests them in another Texas homestead within six months of the sale. 15

The conflict between the Bankruptcy Co de and the Texas homestead exemption

laws, however, is too sharp and too real to be covered up by any am ount of ingenious

judicial gloss. The state laws provide for an exemption of property from liability to seizure

and sale for the owner’s alimony and child support debts. The federal bankruptcy law in

§ 522(c)(1) provides for an exception to that exemption of the same property from liability

to seizure and sale for the debtor-owner’s alimony and child support debts.

Consequently, there is a conflict between the state and federal laws. Therefore,

it must be concluded that the state homestead laws are preempted by the federal

Bankruptcy Code. State law is void to the extent it is in conflict with a federal statute. S ee

Maryland v. Louisiana , 451 U.S. 725, 747 (1981) and authorities cited therein.

4. Bankruptcy Court’s Broad Enforcement Powers Under 11 U.S.C. § 105

The majority insists that the Bankruptcy Code provides no means by which federal

courts can enforce a final judgment rendered by a bankruptcy court.

Section 105 of the Bankruptcy Code, however, plainly states:

(a) The court may issue any order, process, or judgment that

is necessary or appropriate to carry out the provisions of this

ti t le. No provision of this title providing for the raising of an

issue by a party in interest shall be construed to preclude the

court from, sua sponte, taking a ny action or m aking any16 Bankruptcy courts have inheren t power to enforce settlement agreements

between parties. In re Haddad, 68 B.R. 944, 953 (Bankr. D. Mass. 1987); In re Bienart,

48 B.R. 326, 328 (Bankr. N.D. Iowa 1985).

37

determinatio n necessary or appropriate to enforce or

implement court order s or rules, or to prevent an abuse of

process.

11 U.S.C. § 105(a). 16

This court has declared that “[t]he language of this provision is unambiguous.

Reading it under its plain meaning, we co nclude that a bankruptcy court can issue any

order.

. . necessary or appropriate to carry out the provisions of the bankruptcy code.” I n

re Terrebonne Fuel and Lube, Inc., 108 F.3d 609, 613 (5th Cir. 1997). The Supreme Court

has declared that the “statutory directives [of § 105(a)] are consistent with the traditional

understanding that bankruptcy courts, as courts of equity, have broad authority to modify

creditor-debtor relationships.” U nited States v. Energy Resources, Inc., 495 U.S. 545, 549

(1990). For example, a bankruptcy court has the authority under § 105 to void a debtor’s

exemption in order to compensate the estate for damage caused by the debtor’s contempt

of the court’s orders. In re Haddad, 68 B.R. at 951.

One leading commentator on bankruptcy law characterizes § 105 as “an omnibus

provision phrased in such general terms as to be the basis for a broad exercise of power

in the administration of a bankruptcy case. The basic purpose of § 105 is to assure the

bankruptcy courts power to take whatever action is appropriate or necessary in aid of the

exercise of its jurisdiction.” 2 L. K ING

, C OLLIER O N B ANKRUPTCY § 105.01, at 105-3 (1996).

The second sentence of § 105(a) was expressly intended to broaden the authority of

bankruptcy courts to act, sua sponte, to promote the Code’s provisions. S ee In re Kestell,

99 F.3d 146, 148 (4th Cir. 1996) (citing 132 C ONG

. R EC

. S15074-05 (Oct. 3, 1986)).

In In re Moody, 837 F.2d 719 (5th Cir. 1988), this court held that pursuant to § 105,

“a district court has jurisdiction to enforce [nondischargeable] judgments against property

other than p roperty of a bankruptcy estate. . . . This jurisdiction properly extends to an

order in aid of collecting valid claims and judgments of the bankruptcy trustee against the38

beneficiary of the trust.” Id. at 723-24. More recently, under the authority of Moody , the

district court in Bass v. Denney, No. 3:97-CV-2043-P, 1998 WL 59486 (N.D. Tex. Feb. 9,

1998), held that the bankruptcy court had the power and authority under § 105 to fashion

remedies to assist a judgment creditor in enforcing or collecting a nondi schargeable

judgment obtained against a debtor entered pursuant to 11 U.S.C. § 523. Id. at *1-2.

The broad grant of authority conferred upon bankruptcy courts and district courts

by 11 U.S.C. § 105 permits these courts to issue “any order, process, or judgment that is

necessary or appropriate to carry out the provisions of this ti tle.” Therefore, § 105

provides federal courts with a means of enforcing the bankruptcy court’s judgment based

on nondischargeable alimony, maintenance, and child support debts b y ordering the

debtor’s homestead seized and sold to satisfy this nondischargeable, nonexemptible debt.

5. Assimilation of State Practices and Procedures

Federal Rule of Civil Procedure 69(a) provides that the procedure “on execution,

in proceedings supplementary to and in aid of a judgment, and in proceedings on and in

aid of execution shall be in accordance with the practice and p r ocedure of the state in

which the district court is held, existing at the time the remedy is sought, except that any

statute of the United States governs to the extent that it is app licable

. ” Fed. R. Civ. P.

69(a) (emphasis added). Thus, the emphasized exception makes any applicable federal

statute controlling, as well as any relevant civil rule, because those rules have the force

of a statute. 12 C HARLES A. W RIGHT ET AL

., F EDERAL P RACTICE & P ROCEDURE §3012, at 142

(1997) (citing Gary W. v. State of La.

, 622 F .2d 804 (5th Cir. 1980) (district court had

power to order Secretary of Louisiana Department of Health and Human Resources to pay

money judgment from Department funds even though Louisiana Constitution prohibited

payment of judgment against state except from funds appropriated for such purpose by

legislature), cert. denied , 450 U.S. 994 (1981)).

Section 105 of the Bankruptcy Code is a fitting, fully applicable, and, therefore,

controlling federal statute authorizing the bankruptcy court t o enforce its judgm ent.

Consequently, Federal Rule of Civil Procedure 69(a), and state pr actice and procedure

adopted thereby, do not prevent a federal court from using whatever means are necessary17 More than 150 years ago , the Supreme Court declared that early federal acts,

which prescribed that modes of process and proceedings in execution in state court should

be applicable to federal courts in those states, did not manifest legislative intent to defeat

the execution of judgments rendered in the courts of the United States. D uncan v. Darst,

42 U.S. 301, 306 (1843).

39 to guarantee compliance with its judgments. The Fourth Circuit aptly summed up the

relationship between state procedural vehicles and federal statutes as follows:

Even though we look to state law to determine the practice and

procedure to be followed in the execution of a judgment, we do

so in furtherance of federal law, giving effect to rules entitling

parties to enforce federal judgments in federal courts.

Consequently, any aspects o f the assimilated practices and

procedures that are uniquely designed to enforce state

judgments are not assimilated, nor is any aspect that may be

inconsistent with the federal policy of affording judgment

cred itors the right to a writ of execution to enforce money

judgments in federal courts

.

United States v. Harkins Builders, Inc., 45 F.3d 830, 833 (4th Cir. 1995) (emphasis added)

(citing 12 C HARLES A. W RIGHT & A RTHUR R. M ILLER

, F EDERAL P RAC TICE & P ROCEDURE §

3012, at 69 (1973)). 17 Consequently, a debtor cannot accomplish “through the back door,”

ostensibly under Rule 69(a), what cannot be accomplished under the federal Bankruptcy

Co de: invoking state exemption laws to immunize or protect homestead property from

seizure and sale to satisfy nondischargeable, nonexemptible child and spousal support

debts.

III. Conclusion

The Bankruptcy Code provides that the commencement of a voluntary bankruptcy

case creates an estate comprised of legal and equitable interests of the debtor in property,

wherever located and by whomever held. 11 U.S.C. § 541. Under the Code, an individual

debtor has a qualified right, under defined circumstances, to exempt from the estate the

same property that is exempt from levy under state, local, and nonbankruptcy federal law.

11 U.S.C. § 522(b)(2)(A). Property that is exempted from the estate is immunized against

liability for prebankruptcy debts, subject to the exception of, inter alia , debts for alimony,40

maintenance, child support, taxes and other liabilities specified by the Code. 11 U.S.C.

§ 522(c). The debtor’s qualified right to exempt property from the estate, and the

relationships between the debtor, his creditors, and exempted or non-exempted property

w ith regard to prebankruptcy debts, are governed exclusively by federal law.

Consequently, it is clear that the provisions of the state homestead exemption law that

seek to immunize the debtor’s homeste ad against liability to seizure and sale for

nondischargeable alimony and support debts conflict with and have been superseded by

the Bankruptcy Code. The state law cannot alter the obligations of a bankruptcy debtor

and his creditors as provided for by federal bankruptcy law. See I nternational Shoe

, 278

U.S. at 265; In re John Taylor Co.

, 935 F.2d 75, 78 (5th Cir.1991). For these reasons, the

state homestead exemption laws are inoperative against the debtor’s former spouse in this

case and she is entitled under the Bankruptcy Code to proceed a gainst the debtor’s

otherwise exempted property to satisfy her alimony, maintenance, and c hild support

judgment. Accordingly, the judgments below should be vacated and the case should be

remanded to the bankruptcy court with directions to allow the appellant to obtain a writ of

execution and all other relief to which she is entitled by law.