Charlene Van Dusen v. Michael T. Keys

MEMORANDUM

A state court imposed a lien on Keys’s home in Oxnard, California (“Oxnard home”). The bankruptcy court avoided the lien pursuant to 11 U.S.C. § 522 (f)(1), and the district court affirmed. Van Deu-sen appeals.

1. A debtor may avoid a lien under section 522(f)(1) unless it arose before or at the same time as the debtor acquired the property interest at issue. Farrey v. Sanderfoot, 500 U.S. 291, 296 , 111 S.Ct. 1825 , 114 L.Ed.2d 387 (1991). Keys purchased the Oxnard home in 1998 and the Superior Court imposed the lien in 2007. Therefore, he “possessed the interest to which the lien fixed, before it fixed.” Id. at 299 .

Van Deusen argues that Farrey applies because the conduct that gave rise to the lien occurred before Keys purchased the Oxnard home. A lien created under California law sometimes “relates [back] to the time it was created by the conduct of the parties,” Hise v. Superior Court, 21 Cal.2d 614 , 134 P.2d 748, 755 (Cal.1943), but not here. Like the district court, we’re not aware of any “case ... in which a bankruptcy court, district court, or the Ninth Circuit has applied the Hise rule in the context of lien avoidance under § 522(f), as opposed to the…