UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

IN RE: Case No. 21-11326-PDR

RICARDO R ULIAMBRE PETTENGILL Chapter 13

Debtor.

______________________________/

MEMORANDUM IN SUPPORT OF DEBTOR’S MOTION TO AVOID LIEN 

In accordance with the Order Continuing Hearing and Setting Briefing Schedule on 

Motion to Avoid Lien [ECF#100], Debtor, Ricardo R Uliambre Pettengill (“Debtor”), by and 

through undersigned counsel, files his Memorandum in Support of Debtor’s Motion to Avoid 

Lien, and in support states:

INTRODUCTION AND BACKGROUND

1. On February 28, 2018, Debtor purchased his primary residence located at 2482 Eagle

Watch Court, Weston, FL 33327 (the “Subject Property”).

2. On September 7, 2020, Georges Interior Design Inc. (“Creditor”) obtained a Final

Judgement against the Debtor. The Judgment was recorded the following day with the Broward 

County Records Office.

3. On February 11, 2021 (the “Petition Date”) the Debtor filed a voluntary Chapter 13

Petition.

4. On March 10, 2021, Debtor claimed his primary residence exempt under Article X,

Section 4 of the Florida Constitution (the “homestead exemption”). No party has filed an objection 

to the Debtor’s claimed homestead exemption. 

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ISSUE PRESENTED

Whether Creditor’s recordation of its lien after Debtor established homestead, impairs

Debtor’s homestead exemption under Florida law.

ARGUMENT

 In its Response to the Motion to Avoid Judicial Lien Impairing Homestead Property,

1

the 

Creditor argues solely on the issue of whether the judicial lien impairs the Debtor’s homestead

exemption under Florida law. An analysis of the applicable Bankruptcy Code, Florida Statute, and 

the Florida Constitution, is necessary to determine this matter. 

 11 U.S.C. § 522(f)(1) provides that a debtor may avoid judgment liens. Section 522(f)(1) 

states:

Notwithstanding any waiver of exemptions but subject to paragraph (3), 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 under 

subsection (b) of this section, if such lien is –

(A) a judicial lien . . . .

 Section 522(f) was enacted by Congress “with the broad purpose of protecting the debtor's 

exempt property." Farrey v. Sanderfoot, 500 U.S. 291, 297, 111 S. Ct. 1825, 1829 (1991). The 

analysis of what a debtor must show to avoid a lien under this section is twofold. First, a lien must 

fix or attach to the property that is already owned by the Debtor. Second, the lien must impair an 

exemption to which the debtor would have been entitled, hypothetically, rather than actually, under 

state law. In re Whelan, 325 B.R. at 464 (citing Owen v. Owen, 500 U.S. 305, 310-11, 111 S. Ct. 

1833, 1836-37 (1991), remanded to 961 F.2d 170 (11th Cir. 1992), cert. den. 506 U.S. 1022, 113 

S. Ct. 659 (1992)); In re Cooper, 202 B.R. at 322. Both elements must be present to avoid the lien.

In re Cooper, 202 B.R. at 322. 

 The recent decision of In re Badalamenti, No. 6:15-bk-7246-KSJ, (Bankr. M.D. Fla. July 13, 

2021), proves instructive in resolving this matter. The timing of the homestead purchase and the 

1 Motion to Avoid Lien ECF No. 29, Creditor’s Response ECF No. 55 and Debtor’s Reply ECF No. 83. 

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recording of the judgement in Badalamenti parallels the facts of this case. The creditor in 

Badalamenti recorded a judgment after the debtor purchased his property, and the debtor 

subsequently filed bankruptcy, claimed the home as exempt, and moved to avoid the lien. 

 In Farrey2, the United States Supreme Court, held that “state law determines when a lien is 

fixed on a debtor's property interest. Applying Wisconsin law, the Court determined that ‘in order 

for a lien to “fix” to a property interest, the property interest must predate the existence of the lien.’"

Badalamenti (citing Farrey, 500 U.S. at 299, 111 S. Ct. at 1830 and In re Whelan, 325 B.R. at 

464). To satisfy the element of fixing a lien, “a debtor therefore must own the property interest 

before the fixing of the lien.” Badalamenti (citing Owen v. Owen (In re Owen), 961 F.2d 170, 172 

(11th Cir. 1992).

 Turning to state law, Florida Statute Section 55.10(1) states in relevant part: “A judgment . . 

. becomes a lien on real property in any county when a certified copy of it is recorded in the official 

records or judgment lien record of the county . . . .” 

 In this case the Debtor owned the Subject Property since February 28, 2018, and the judgment 

was recorded on September 8, 2020. The Debtor had an interest in the Property prior to the 

judgment lien attaching, and the lien appropriately fixing on a property interest of the Debtor. In 

fact, the Debtor was living in the homestead exempted Property prior to the date that the certified 

copy of the judgment was recorded in the county. The recording resulted in the judgment becoming

a lien on the debtor’s Property at the time it was recorded. Consequently, the debtor satisfies the 

first element of a lien fixing on a property interest of the Debtor. 

 The second element is whether a lien impairs an exemption to which the debtor would have 

been entitled, hypothetically, rather than actually, under Florida law. It is well established that a 

lien on a property clouds the title to the property and must therefore either be paid or resolved upon 

2

Farrey, 500 U.S. at 299, 111 S. Ct. at 1830.

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the sale of the property. 

 In determining “the application of § 522(f) [bankruptcy courts] ask not whether the lien 

impairs an exemption to which the debtor is in fact entitled, but whether it impairs an exemption 

to which he would have been entitled but for the lien itself." Owen, 500 U.S. at 310-11, 111 S. Ct. 

at 1836-37 (emphasis in original). As determined by the Supreme Court of the United States, a

debtor’s exemptions are determined as of the petition date and not at the time the lien attaches. In 

re Allen, 217 B.R. 945, 951 (Bankr. M.D. Fla. 1998).

 Following the reasoning of Badalamenti, if a debtor could avoid a lien which fixed to his

property while he was not living in the property,3then it follows, that the Debtor in this case, should

be entitled to avoid the Creditor’s lien, being that the Debtor was living in the Property and had 

always claimed it as his homestead.

 Public policy and practical considerations also support that a recorded judgment impairs the 

strong homestead exemptions provided by the Florida Constitution. Article 10, § 4(a)(1) of the 

Florida Constitution provides in relevant part that the homestead property "shall be exempt . . . and 

no judgment, decree, or execution shall be a lien thereon” If the reasoning in Cannon4and Epstein5

were followed, a debtor would be prevented from selling a homestead property unless and until the 

lien is resolved. It should be clear that this practical impediment impairs a debtor’s exemptions

pursuant to both the Florida Constitution as well as the Bankruptcy Code. If a creditor alleges that 

a judgment does not impair the homestead, while the rest of the world believes that the judgment 

creates a cloud on the title, then the debtor is without a mechanism to avail itself of the benefit of 

the written and applicable laws. This would overly prejudice similarly situated debtors and thus the 

logical conclusion should be to avoid the lien under this public policy standpoint. 

3

The debtor in Bdalamenti was not living in the property at the time the judgement was entered. 

4 Cannon v. Cannon, 254 B.R. 773 (Bankr. S.D. Fla. 2000).

5

In re Epstein, 298 B.R. 917 (Bankr. S.D. Fla. 2003).

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 “[T]he term ‘impair’ [as used in §522(f)(1)] encompasses more than the idea of ‘legal’ 

impairment. The term ‘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). This is the majority view in Florida that even the recording of unenforceable liens impairs 

title to a Debtor’s Florida homestead. “Although the lien is legally unenforceable by virtue of the 

protection provided by the Florida Constitution, the lien still creates a cloud on the title by the fact 

the lien was recorded in the public records. Recording even an unenforceable lien is sufficient to 

impair the debtor’s homestead exemption and fix against the interest of the debtor.” In re Desai, 

54 Collier Bankr. Case 2d 1117 (Bankr. M.D. Fla. 2005); 2005 Bankr. LEXIS 1387. 

CONCLUSION

 For the foregoing reasons, the Court should Grant the Avoidance Motion. By owning the 

Subject Property and living in the Property, the recording of the judgment created a lien and fixed 

itself to the Debtor’s homestead. The recorded lien clouded title on the homestead and impaired

the Debtor’s homestead exemption, and should therefore be avoided.

 WHEREFORE, Debtor respectfully requests the Honorable Court deny Creditor’s 

Opposition and grand Debtor’s Motion to Avoid Lien, grant Debtor’s attorney’s fees for this 

Memorandum; and for such further relief as the Court deems just and proper.

Cohen Legal Services, P.A. 

Debtor’s Attorney

101 NE Third Ave., Suite 1500 

Fort Lauderdale, Florida 33154 

Telephone: (305) 570-2326 

By: s/Rachamin Cohen

Rachamin “Rocky” Cohen 

Florida Bar No. 96305

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