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Tagged Opinion for Publication

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

In re:

Case No. 21-11326-PDR

Ricardo Ruben Uliambre Pettengill,

Chapter 13

Debtor.

/

MEMORDANDUM OPINION ON ORDER 

GRANTING MOTION TO AVOID LIEN1

The Debtor owns a homestead property in Weston, Florida. Before the Debtor 

filed his Chapter 13 bankruptcy case, Georges Interior Design, Inc. recorded a 

judgment in the public records against the Homestead. The Debtor seeks to avoid 

the Recorded Judgment under 11 U.S.C. § 522(f)(1)(A). There is no dispute that the 

Homestead is protected under Florida’s homestead exemption.2 In fact, Georges 

1 The Court granted the Debtor’s Motion to Avoid Lien on December 6, 2021. (Doc. 125).

2 Because the deadline to object to exemptions has expired and, more importantly, Georges 

Interior expressly agrees to, and in fact rests its entire argument on, the fact that the Debtor’s 

Peter D. Russin, Judge

United States Bankruptcy Court

_____________________________________________________________________________

ORDERED in the Southern District of Florida on December 9, 2021.

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Interior acknowledges it cannot enforce the Recorded Judgment against the 

Homestead. Yet, Georges Interior opposes the motion, arguing that § 522(f)(1) is 

inapplicable because under Florida law the Recorded Judgment is not a fixed lien 

that impairs the Debtor’s exemption. The Court disagrees and finds that § 522(f)(1) 

applies to avoid the Recorded Judgment.

I. The Problem of Language

Under 11 U.S.C. § 522(f)(1)(A), “the 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 ... if such lien is ... a judicial lien.”3 

Section 522(f) was created with the “broad purpose of protecting the debtor’s exempt 

property.” Farrey v. Sanderfoot, 500 U.S. 291, 297 (1991). But the sweeping language 

of Florida’s homestead exemption also protects exempt property by stating “no 

judgment, decree or execution shall be a lien” against it. Fla. Const. art. X, § 4; see 

Wilhelm v. Locklar, 35 So. 6, 6 (Fla. 1903). The breadth of this protection complicates 

the issue of whether § 522(f)(1) applies. This dynamic presents a potential 

conundrum because Florida’s Constitution and the Bankruptcy Code seem aligned in 

their purpose, that the recorded judgment not impair the exemption, but their

overlapping language seems to prevent the very relief the Bankruptcy Code intends. 

assertion of homestead applies to the Recorded Judgment, the Court considers any argument as to the 

applicability of the Debtor’s claim of exemption to be waived. 

3 A “judicial lien” is a “lien obtained by judgment, levy, sequestration, or other legal or 

equitable process or proceeding.” 11 U.S.C. § 101(36).

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The Court, therefore, must determine whether the Florida Constitution’s robust 

protection of homestead property renders § 522(f)(1) inapplicable.

Courts are split on this question. The minority find the language of Florida’s 

homestead exemption prevents a recorded judgment from becoming a lien against, 

fixing to, or impairing homestead property. As argued by Georges Interior, these 

courts reason that because the recorded judgment is not a “lien” under Florida law 

and because § 522(f)(1) only applies to “fixed” “liens” that “impair” the debtor’s 

exemption, § 522(f)(1) does not apply. See, e.g., In re Epstein, 298 B.R. 917, 919–20

(Bankr. S.D. Fla. 2003); Cannon v. Cannon, 254 B.R. 773, 777–78 (S.D. Fla. 2000); In 

re Goodwin, 82 B.R. 616, 617 (Bankr. S.D. Fla. 1988). 

The majority find that a recorded judgment against a Florida homestead, 

regardless of its enforceability, impairs the debtor’s exemption by clouding title and 

may be avoided under § 522(f)(1). See, e.g., In re Badalamenti, No. 6:15-bk-07246-

KSJ, 2021 WL 3028186, at *3–4 (Bankr. M.D. Fla. July 15, 2021); In re Walker, 345 

B.R. 399, 401 (Bankr. M.D. Fla. 2006); In re Felizardo, 255 B.R. 85, 88 (Bankr. S.D. 

Fla. 2000); In re Lowe, 250 B.R. 422, 425 (Bankr. M.D. Fla. 2000); In re Willoughby, 

212 B.R. 1011, 1016–17 (Bankr. M.D. Fla. 1997); In re Calandriello, 107 B.R. 374, 

375 (Bankr. M.D. Fla. 1989); In re Davis, 23 B.R. 347, 348 (Bankr. S.D. Fla. 1982). 

These cases, however, do not fully analyze whether a recorded judgment is a “lien” 

that “fixes” to Florida homestead property and, therefore, do not fully address the 

issues conveyed by the minority.

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The Court concludes that a debtor may avoid an applicable judgment recorded 

against Florida homestead property because, even considering the Florida 

Constitution’s express language, it (1) is a “lien” under the Bankruptcy Code; (2) 

“fixes” to homestead property; and (3) “impairs” the exemption.

II. “Lien”

The instinctual analysis is to simply conclude that judgments recorded against 

Florida homesteads, because they are not “liens” under Florida law, cannot be 

avoided under § 522(f)(1). This straightforward approach is appealing to those courts 

that deny § 522(f)(1) relief. See, e.g., Cannon, 254 B.R. at 777–78. But the inquiry 

should not end there because, though the Florida Constitution’s express language 

prevents judgments from becoming liens under Florida law, the Bankruptcy Code 

contains its own definition of “lien.” 

Under the Bankruptcy Code, a “lien” is a “charge against or interest in property 

to secure payment of a debt or performance of an obligation.” 11 U.S.C. § 101(37).

This definition of “liens” suggests that both unenforceable “charge[s] 

against” property and enforceable “interest[s] in” property fall within its 

scope. That interpretation is bolstered by the legislative history of the 

Bankruptcy Reform Act which itself states that the definition of lien is 

“very broad” and “includes inchoate liens.” S. Rep. No. 95–989, at 25 

(1978); H.R. Rep. 95–595, at 312 (1977). We agree ... that unenforceable 

liens may be avoided under § 522(f)(1).

CRP Holdings A-1, LLC v. O’Sullivan (In re O’Sullivan), 841 F.3d 786, 789 (8th Cir. 

2016). The broad definition of “lien” includes a “charge,” which is a general term that 

encompasses, among other things, a “claim.” Charge, Black’s Law Dictionary 211 

(5th ed. 1984) (defining the noun “charge” as “an incumbrance, lien, or claim”). The 

Bankruptcy Code defines a “claim” as a “right to payment, whether or not such right 

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is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, 

unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” 11 U.S.C. 

§ 101(5)(A). 

When a creditor records a judgment in the Florida public records, the recording 

results in a claim against the purported homestead property. As a claim, the recorded 

judgment asserts a “right to payment,” albeit a contingent one, subject to the debtor’s 

ability to successfully assert homestead rights under Florida law. See Fla. Stat. §

222.01. Consequently, a recorded judgment, irrespective of its present enforceability,

is a prototypical example of a “charge” and falls within the Bankruptcy Code’s 

definition of a “lien.”

This conclusion is buttressed by the way Florida treats a recorded judgment 

against homestead property. Though the recorded judgment cannot be enforced

against the homestead, it remains a valid claim and continues to lurk in the public 

records and follows the property unless the debtor affirmatively acts to remove it by 

filing a “notice of homestead” and serving it on the judgment creditor. See Fla. Stat. 

§ 222.01. If the creditor disputes the homestead claim, it can mount a challenge by 

filing an action within 45 days of the notice, and if successful, the recorded judgment, 

which has lied dormant, awakens and becomes an enforceable judicial lien under 

Florida law. See Fla. Stat. § 222.01(4). 

So, what is the recorded judgment before it has been challenged under Fla. 

Stat. § 222.01? It is, at a minimum, a “claim” asserted against the purported 

homestead. Because a recorded judgment is a “claim,” and a “claim” is by definition 

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a “charge,” and a “charge” is, as defined by the Bankruptcy Code, a “lien,” a recorded 

judgment qualifies as a “lien” as the term is used in § 522(f)(1).4 Although Florida’s 

Constitution prevents a judgment from becoming a “lien” against a Florida 

homestead under state law, the Recorded Judgment is a lien as defined by the 

Bankruptcy Code and contemplated by § 522(f)(1).

III. “Fixing”

Having determined the Recorded Judgment is a “lien” under the Bankruptcy 

Code, the Court turns to whether the Recorded Judgment “fixes” to the Homestead. 

The Bankruptcy Code does not define “fix.” The Supreme Court however, in the 

context of § 522(f)(1), has defined it to mean “to fasten a liability upon.” Farrey, 500 

U.S. at 297 (quoting Black’s Law Dictionary 637 (6th ed. 1990)). Whether the 

Recorded Judgment “fixes” to the Homestead is a question of state law. Id. at 299.

Some courts, such as the Eight Circuit in O’Sullivan, conclude that § 522(f)(1) 

is not available “[w]hen there is no lien under state law” because “there is nothing to 

‘fasten’ upon the property and give rise to an unenforceable lien.” See O’Sullivan, 841 

F.3d at 789; Cannon, 254 B.R. at 777–78. The Bankruptcy Code defines a “lien” and 

§ 522(f)(1) allows the debtor to avoid the “fixing” of such a “lien.” In O’Sullivan, the 

Eight Circuit acknowledges this and carefully interprets the Bankruptcy Code’s

definition of a “lien,” but then – inexplicably – applies the state law definition to 

determine whether the lien fixes. Defining “fixing” in a manner limited to “liens” as 

4 “Things which are equal to the same thing are also equal to one another.” Common Notion 

No. 1, The Thirteen Books of Euclid’s Elements 155 (T. Heath trans. 2d ed. 1956). Here, a recorded 

judgment is equal to a claim which is equal to a charge which is equal to a lien. Therefore, a recorded 

judgment is equal to a lien.

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defined by state law mistakenly renders the Bankruptcy Code definition of a “lien”

irrelevant to the § 522(f)(1) analysis. Courts are instructed to avoid interpretations 

of statutes that render part of the text irrelevant. See, e.g., United States v. Butler, 

297 U.S. 1, 65 (1936) (“These words cannot be meaningless, [or] else they would not 

have been used.”). Instead, to determine whether a Bankruptcy Code defined lien 

“fixes,” the Court considers whether state law allows the recorded judgment –

regardless of whether it is a “lien” under state law – to “fix” to the property.5

Florida’s legal process does not assume the homestead exemption applies to 

the property. See Fla. Stat. § 222.01. Rather, it requires a debtor act to enforce the 

exemption and provide notice and an opportunity to object to creditors with recorded 

judgments. Not until the Fla. Stat. § 222.01 process is successfully completed will

the recorded judgment be “deemed as not attaching to the property ...” Fla. Stat. § 

222.01(4). In the interim, to suggest the recorded judgment is not “fixed” or “fastened” 

to the property ignores this fact and the intention of the statute. There can be no 

need to detach that which is not fixed. As such, a judgment recorded against a Florida 

homestead – regardless of whether it is a lien under state law – is, in every respect,

“fixed” to the property at least until the process to detach it under Florida law is

successfully completed.

5 Under the ordinary-meaning rule, “[w]ords are to be understood in their ordinary, everyday 

meanings – unless the context indicates that they bear a technical sense.” Antonin Scalia & Bryan A. 

Garner, Reading Law 69 (1st ed. 2012) (hereafter “Reading Law”). “The ordinary-meaning rule is the 

most fundamental semantic rule of interpretation.” Id. (citing James Kent, Commentaries on 

American Law 432 (1826)). This principle has been applied and used in other portions of § 522(f)(1), 

such as with respect to the word “impairs.” See, e.g., In re Henderson, 18 F.3d 1305, 1310 (5th Cir. 

1994).

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The Debtor declared the Homestead exempt in this bankruptcy case, the

deadline to object has expired, and the exemption has been determined.6 Despite this 

unassailable fact, the Recorded Judgment lies in wait in the public records against 

the Homestead. Without the benefit of § 522(f)(1), the Debtor would have to detach 

the Recorded Judgment under state law. This truth leads the Court to the 

inescapable conclusion that the Recorded Judgment is “fixed” to the Homestead.

IV. “Impairs”

Lastly, the Court must determine whether the Recorded Judgment, despite its 

present unenforceability, “impairs” the Homestead.7 To “impair” means “to weaken, 

to make worse, to lessen in power, diminish, or relax, or otherwise affect in an 

injurious manner.” In re Henderson, 18 F.3d 1305, 1310 (5th Cir. 1994) (quoting 

Black’s Law Dictionary 752 (6th ed. 1990)). The minority courts conclude that a 

presently unenforceable recorded judgment cannot “impair” a debtor’s exemption. 

See, e.g., Cannon, 254 B.R. at 778–79 (explaining that recorded judgments against 

Florida homesteads have “no legal effect” and, therefore, do not impair them). But 

the definition of impairs under § 522(f)(1), “encompasses more than the idea of ‘legal’ 

impairment.” Henderson, 18 F.3d at 1310. Rather, consistent with the Supreme 

6 When a debtor files for bankruptcy, the exempt nature of the property is determined when 

the debtor claims the exemption in the schedules and the opportunity for creditors to object expires. 

See Taylor v. Freeland & Kronz, 503 U.S. 638, 643–44 (1992) (explaining that, once the expiration of 

the deadline to object to exemptions expires, all property listed as exempt on the debtor’s schedules 

becomes exempt regardless of whether the debtor “had a colorable statutory basis for claiming it”); see 

also In re Heintz, 198 B.R. 581, 584 (9th Cir. BAP 1996) (holding that expiration of objection to 

exemption deadline entitles debtor to claimed exemptions even if the debtor had “no colorable basis” 

to claim them).

7 The Bankruptcy Code does not define “impairs.”

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Court’s interpretation that the statute provides broad protections and this Court’s 

interpretation of “lien” and “fixing,” the word “impairs” is similarly broad under § 

522(f)(1) and includes factual, practical impairments as well as technical, legal ones. 

See id.; Felizardo, 255 B.R. at 88. 

Recorded judgments cloud title regardless of their present enforceability, 

especially considering that their enforceability against the property remains subject 

to the adjudication of the exemption under Fla. Stat. § 222.01. Real estate 

transactions almost always require a title insurance company to insure the buyer or 

lender against possible defects in record title. See Morton v. Attorneys’ Title Ins. 

Fund, Inc., 32 So. 3d 68, 71 (Fla. 2d DCA 2009). Here, it would not be surprising that 

a title insurance company would refuse to insure title over a recorded judgment 

unless and until the debtor successfully detaches it from the homestead property. 

Functionally, because the Recorded Judgment appears as a “charge” against 

the Homestead, the title remains “unmarketable.” See Lowe, 250 B.R. at 425. Where 

a debtor cannot exercise all the rights associated with holding a homestead property 

because a judgment is recorded against it, the judgment, by definition, “impairs” the 

debtor’s exemption. See Felizardo, 255 B.R. at 88; Lowe, 250 B.R. at 425.8

8 “Without some indication to the contrary, general words (like all words, general or not) are 

to be accorded their full and fair scope. They are not to be arbitrarily limited. This is the generalterms cannon, which is based on the reality that it is possible and useful to formulate categories ... 

without knowing all of the items that may fit – or may later, once invented, come to fit – within those 

categories.” Reading Law at 101. Here, nothing in § 522(f)(1) suggests that the word “impairs” is to 

be limited to the singular category of technical, legal impairments. As such, the Court is guided by 

the general-terms canon and considers practical factual realities in determining whether the Recorded 

Judgment “impairs” the Debtor’s exemption.

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V. Conclusion

Georges Interior holds a Recorded Judgment against the Debtor’s Homestead. 

By virtue of its recording against the property in the public record, the Recorded 

Judgment is a “charge” and, therefore, a fixed “lien” against the Homestead that 

impairs the Debtor’s exemption. Accordingly, the Debtor’s Motion to Avoid Lien (Doc. 

29) is granted and Georges Interior Design, Inc.’s Recorded Judgment is avoided

under 11 U.S.C. § 522(f)(1)(A). See (Doc. 125).

# # #

Copies To:

Rachamin Cohen, Esq.

Rachamin Cohen, Esq. is directed to serve this Order on all interested parties.

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