Memorandum of Decision Re: Avoidance of Lien

FOR THE NORTHERN DISTRICT OF CALIFORNIA In re PAMELA B. ROBERTSON,                                       No. 1-90-00046        Debtor.                                                                   A.L. No. 90-211 ___________________________/
Memorandum of Decision
     This matter originally was presented to the court as a lien avoidance motion, the debtor seeking to avoid the judgment lien of creditors Raymond and Edna Lee against her exempt residence pursuant to section 522(f)(1) of the Bankruptcy Code. As a lien avoidance motion, two thorny issues were presented to the court: whether the lienholder may contest the validity of the exemption after having failed to file a timely objection pursuant to Bankruptcy Rule 4003(b) (compare In re Montgomery, 80 B.R. 385 (Bkrtcy.W.D.Tex.1987) with In re Hahn, 60 B.R. 69 (Bkrtcy.D.Minn. 1985); and whether a homestead claimed without a formal declaration is sufficient to protect the debtor in the event of a voluntary postpetition sale (compare In re Yau, 115 B.R. 245 (Bkrtcy.C.D.Cal. 1990) with In re Sanford, 8 B.R. 761 (DC N.D.Cal.1981).      However, it appears upon closer examination that the troublesome issues do not arise because the Lees have no lien. The Lees concede that the residence is community property. The debtor's husband, Dennis Robertson, filed his own Chapter 11 petition on August 17, 1987, some three months before the recording of the abstract of judgment which created the lien. That case was subsequently converted to Chapter 7 and Dennis received a discharge. Dennis and Pamela have been married since before that filing.      Pursuant to section 541(a)(2) of the Code, Pamela's community interest was property of the estate in Dennis' case; the postpetition recording of the abstract, even if done without knowledge of the filing, violated sections 362(a)(2), (4), (5) and (6) of the Code and is accordingly void. In re Sambo's Restaurants, Inc., 754 F.2d 811, 816 (9th Cir.1985); In re Wingo, 89 B.R. 54, 57 (9th Cir. BAP 1988). The discharge entered in Dennis' case bars the Lees from enforcing their claim against any property which passed through Dennis' estate or any after-acquired community property of Dennis and Pamela. 3 Collier on Bankruptcy (15th Ed.), sec. 524.01[2], p.524-13. Accordingly, the Lees have no lien to avoid.      The court finds no merit to the Lees' argument that the debtor's motion should be denied for laches or other equitable reasons. First, lien avoidance is available to debtors even after a case has been closed. In re Ricks, 89 B.R. 73 (9th Cir.BAP 1988). Second, there is a strong public policy in favor of preserving homestead rights. See In re Sanford, supra. Third, since the Lees have no valid lien the debtor does not need any relief beyond a declaration of her rights; there is no time limit for such relief.      For the foregoing reasons, an order will be entered declaring that the Lees have no right, title or interest in the debtor's residence.
Dated: September 25, 1990                                                                          _______________________                                                                                                                      Alan Jaroslovsky                                                                                                                      U.S. Bankruptcy