OPINION
I
This appeal raises two questions. The first is whether federal bankruptcy law permits a nondebtor spouse to claim a state homestead exemption in community property where the debtor spouse schedules federal exemptions in unrelated property. The second is whether unrecorded judgments against a marital community create valid liens upon the real property of the marital community under Washington law. We REVERSE in part and AFFIRM in part.
II
FACTS
Daniel Wood Homan and Carolyn Elizabeth Homan, a married couple, purchased twenty acres of real property (“Island Property”) in Island County, Washington and resided there continuously in a mobile home until their separation in October 1986. Daniel incurred debts prior to the seрaration. The creditors to whom the debts were owed, Ja-Ca-Nel Properties, Inc. (“JPI”) and Bill Pierre Leasing, Inc. (“BPL”), sought and obtained judgments against both Daniel and his marital community. One judgment was obtained in Island County. The other was obtained elsewhere and then filed as a certified abstract in Island County. Neither was recorded.
Daniel filed an individual Chapter 7 petition in February 1988 and thereafter prepared a schedule of assets which included the Island Property. He claimed a number of federal exemptions in the assets of the bankruptcy estate, but did not include an exemption in the Island Property. This failure prompted Carolyn, who was at the time the sole resident of the Island Property, to take action to protect her interest. She did so by declaring a state homestead exemption.
The trustee sought by complaint to establish that Carolyn had no right to claim a homestead exemption and that neither JPI nor BPL had acquired valid liens upon the Island Property in light of their failure to record their judgments. The parties thereafter filed cross-motions for summary judgment.
The trial court issued its findings of fact and conclusions of law on January 27, 1989. The court determined that an automatic state homestead exemption arose to protect the interest of Carolyn in the Island Property and that the judgments of JPI and BPL resulted in the creation of valid liens.
III
BASIS OF JURISDICTION
The jurisdiction of this Panel extends to final judgments, orders and decrees. 28 U.S.C. § 158(b)(1). We retain jurisdiction in the matter at hand notwithstanding the premature filing of this notice of appeal because appeals are deemed timely even where thеy precede the entry of the orders from which they are taken.
In re Allustiarte,
IV
STANDARD OF REVIEW
A summary judgment should be affirmed only if it appears after reviewing all evidence and factual inferences in a light most favorable to the non-moving party that there are no gеnuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Bankruptcy Rule 7056; Fed.R.Civ.P. 56(c);
In re Orosco,
V
DISCUSSION
A. Capacity of Nondebtor Spouse to Exempt Community Property
Carolyn urges, and the trial court so found, that a nondebtor spouse may employ a state homestead exemption in community рroperty notwithstanding the scheduling of unrelated federal exemptions by the debtor spouse. We disagree.
The filing by a spouse of an individual bankruptcy petition creates an estate which encompasses
community property
that is under the spouse’s joint management and control as of the date of the petition. 11 U.S.C. § 541(a)(2)(A);
In re Fietz,
The property in which Carolyn seeks to establish a homestead exemption is community property because it was acquired during her marriage to Daniel.
See
Wash.Rev.Code Ann. § 26.16.030(1986);
In re Brooks,
The conclusion that Carolyn is bound by Daniel’s failure to file a homesteаd exemption in the Island Property is not subject to modification under the provision of the Bankruptcy Code which permits a nondebtor spouse to declare exemptions as a dependent of a debtor spouse. 11 U.S.C. § 522(a)(1) and § 522(Z). Where a debtor files а list of property exemptions claimed under federal law, even an incomplete list, nothing in the language or legislative history of Section 522(Z) suggests that nondebtor dependents may supplement this list with state exemptions or further federal exеmptions.
Even if Section 522(Z)
were
construed to entitle a dependent to supplement an incomplete list of exemptions, the supplemental exemptions would be required to
By seeking to mix a state homestead exemption with the unrelated federal exemptions claimed by Daniel, Carolyn seeks to do as a nondebtor spouse what she would be prohibited from doing as a joint debtor spouse. We will not approve such an effort as it would plainly work to discourage spouses from engaging in the preferred system of joint administration. The technical argument that a nondebtor spouse falls beyond the literal terms of Section 522(b) is unpersuasive.
What may seem at first blush a hard result for nondebtor spouses is normally compensated for by other Code provisions. First, prior to the consummation of a sale of community property by the estаte of a debtor spouse, the nondebtor spouse has a right of first refusal to purchase the property at the proposed sale price. Section 363(i). Moreover, a nondebtor spouse in a community property state tyрically benefits from the discharge of the debtor spouse. According to Section 524(a)(3), after-acquired community property is protected by injunctions against collection efforts by those creditors who held allowable community clаims at the time of filing. This is so even if the creditor claim is against only the nonbankruptcy spouse; the after-acquired community property is immune. 3 Collier on Bankruptcy, supra, ¶ 524.01[2]. 2
B. Validity of the Judgment Liens
The trial court determined that the unrecorded judgments of JPI and BPL created valid judgment liens upon the Island Proрerty. We agree.
Community debts arise in Washington where one spouse incurs an obligation in the acquisition of a community asset or in the management of community property.
Beyers v. Moore,
The uncontroverted evidence here indicates that judgments were entered against both Daniel
and
his marital community. Because no attemрt was made by the trustee to rebut this inference of community liability during the proceedings before the trial court, we conclude for purposes of this appeal that the debts owed to JPI and BPL were community debts.
Beyers, supra,
The arguments to the contrary are unpersuasive. While, with a few exceptions, it mаy be true that judgment liens will not arise in Washington upon property in which a homestead exemption has been claimed, the evidence here indicates no en
VI
CONCLUSION
A nondebtor spouse may not claim a state homestead exemption in community property where the debtor spouse has scheduled a list of federal exemptions in unrelated property. Where no homestead exemption is available, unrecorded judgments against the debtor spouse and the marital community create valid liens upon the real property of the marital community under Washington law. REVERSED in part and AFFIRMED in part.
ORDER DENYING MOTION FOR REHEARING
Following argument and submission of the above-captioned case on July 21, 1989 at Seattle, Washington an Opinion was issued by the Panel rеversing in part and affirming in part the judgment of the trial court. Appellant Dennis Lee Burman, Trustee, moves for reconsideration of that portion of the Opinion holding that judgment liens attach to the Island County real property.
The Island County real property is community property subject to the debtor’s joint management and control. Wash.Rev. Code Ann. § 26.16.030 (1986). Therefore the entire property becomes part of the bankruptcy estate of the debtor, notwithstanding that the Appellee Carolyn Hоman is not a debtor. 11 U.S.C. § 541(a)(2). The issue in the Motion for Rehearing is whether Bill Pierre Leasing, Inc. and Ja-Ca-Nel Properties, Inc. obtained judgment liens against the Island County property in the hands of the estate. This differs from the unfaced question of whether, outside of bankruptcy, a judgment lien attaches on the property against the interests of the non-debtor spouse.
As the Opinion in this case details, the Island County property
in the hands of the estate
is not subject to a state homestead exemption because the debtor did not elect such exemption and his nondebtor spouse is not entitled tо elect such an exemption for her husband’s estate.
See also In re Persky,
Since the estate property is therefore not subjeсt to a state homestead exemption, the lien interests of Bill Pierre Leasing, Inc. and Ja-Ca-Nel Properties, Inc. are governed by the general Washington state provisions concerning judgment liens rather than the special provisions cоncerning judgment liens on homestead property.
As explained in the Opinion deciding this Appeal, the judgments of these two creditors were obtained against both Daniel and his marital property. According to Wash. Rev.Code Ann. §§ 26.16.040, 4.56.190 and 4.56.200(1) a judgment on such dеbts automatically creates a lien upon community real property in the county in which the judgment is obtained. Bill Pierre Leasing, Inc. obtained its judgment in Island County and therefore a judgment lien attached automatically to the Island County propеrty in favor of this creditor.
According to Wash.Rev.Code Ann. § 4.56.200(2) a lien arises on community real property located in a county different from that in which the judgment is obtained if a certified abstract of the judgment of the Superior Court of the issuing county is filed with thе Superior Court in which the real property is situate. Ja-Ca-Nel Properties, Inc. obtained a judgment against the debtor in Snohomish County Superior Court and filed an abstract of this judgment with the Island County Court Clerk.
In summary, since no state homestead exemptiоn was validly claimed against the debtor’s estate in bankruptcy, the judg
Notes
. Section 522(b) provides that where a husband and wife become debtors and their cases are jointly filed or jointly administered, they must elect the same slate of exemрtions. The section further provides that if the debtor spouses are unable to agree on the alternative to elect, they are deemed to elect federal exemptions.
. In the instant case, however, Carolyn Homan may be disqualified from this benefit of Daniel’s discharge owing to a Chapter 13 proceeding filed by Carolyn which was later dismissed. Section 524(b)(1).