                                                                      FILED
                                                                       AUG 01 2016

 1                                                               SUSAN M. SPRAUL, CLERK
                                                                     U.S. BKCY. APP. PANEL
                                                                     OF THE NINTH CIRCUIT
 2                            ORDERED PUBLISHED
 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                        )      BAP Nos.    15-1367-DTaJu
                                   )                  15-1378-DTaJu
 6                                 )                  (related appeals)
     FRANCES ELIZABETH PASS,       )
 7                                 )      Bk.   No.   13-16171-B-7
                                   )
 8                  Debtor.        )
     ______________________________)
 9                                 )
     JAMES E. SALVEN, CHAPTER 7    )
10   TRUSTEE,                      )
                                   )
11                  Appellant,     )
                                   )
12   v.                            )      O P I N I O N
                                   )
13                                 )
     ALADINO JOSEPH GALLI;         )
14   FRANCES ELIZABETH PASS,       )
                                   )
15                  Appellees.     )
                                   )
16   ______________________________)
17
                     Argued and Submitted on June 23, 2016
18                         at Sacramento, California
19                           Filed - August 1, 2016
20             Appeal from the United States Bankruptcy Court
                   for the Eastern District of California
21
              Hon. W. Richard Lee, Bankruptcy Judge, Presiding
22
23   Appearances:     Trudi G. Manfredo, argued for Appellant James L.
                      Salven; Appellee Aladino Joseph Galli argued pro
24                    se.
25
26   Before: DUNN, TAYLOR and JURY, Bankruptcy Judges.
27
28
 1   DUNN, Bankruptcy Judge:
 2
 3        Frances Elizabeth Pass and Aladino Joseph Galli commenced a
 4   chapter 131 case in 2009, while they were married but intending
 5   to separate.    In 2002, they had recorded a declaration of
 6   homestead as to their residence in Fresno, California.    They also
 7   claimed their residence as exempt under California’s automatic
 8   homestead exemption when they filed their bankruptcy case.
 9   During the pendency of the case, Pass and Galli terminated their
10   marriage and purported to divide their marital property without
11   seeking relief from the automatic stay.    The joint case was
12   severed, Pass converted her case to chapter 7, and Galli allowed
13   his case to be dismissed.    After conversion, Pass amended her
14   exemptions to claim a homestead exemption in a different home,
15   while Galli continued to reside in the previously claimed
16   homestead.    Over the objection of the chapter 7 trustee James
17   Salven (“Trustee”), Pass’ exemption was allowed.    The Trustee
18   elected to pursue Galli’s home instead through an adversary
19   proceeding, but the bankruptcy court entered an order and
20   judgment declaring, among other things, that Galli’s declaration
21   of homestead created an interest in the home that the Trustee
22   could not avoid.    The Trustee appeals the order and judgment
23   separately.    With respect to both appeals, we AFFIRM on the
24
25
          1
             Unless otherwise indicated, all chapter and section
26   references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532.
27   All “Rule” references are to the Federal Rules of Bankruptcy
     Procedure. All “Civil Rule” references are to the Federal Rules
28   of Civil Procedure.

                                       2
 1   alternative basis that Galli has a valid automatic homestead
 2   exemption under California law.
 3                           I.   FACTUAL BACKGROUND
 4        Before they filed their petition, Pass and Galli were
 5   married and living together in a home on Manila Avenue in Fresno,
 6   California (the “Manila Avenue House”).      They had been living
 7   there at least since 2002, at which time they filed a declaration
 8   of homestead in relation to the Manila Avenue House as allowed by
 9   California law (“2002 Homestead Declaration”).       See California
10   Code of Civil Procedure (“CCP”) § 704.920.        Then, in the fall of
11   2014, Pass purchased a house in Coalinga, California (the
12   “Coalinga House”) after accepting a position in her employer’s
13   Coalinga office.   Pass and Galli had decided to end their
14   marriage, and Pass began refurbishing the Coalinga House with the
15   intention of moving into it permanently.
16        Meanwhile, Pass and Galli filed a joint chapter 13 petition
17   on December 30, 2009.    In their bankruptcy schedules, as amended
18   in February 2010, they claimed a homestead exemption in the
19   Manila Avenue House pursuant to CCP § 704.730, applicable in
20   bankruptcy by virtue of § 522(b)(3)(A).      The stated value of the
21   claimed exemption was $43,764.64.      In 2010, while their joint
22   bankruptcy case was in progress, Pass and Galli obtained a
23   judgment of legal separation in the Superior Court of Fresno
24   County (“Separation Judgment”).     Though Pass and Galli did not
25   request or obtain relief from the automatic stay, the Separation
26   Judgment purported to award the Manila Avenue House to Galli as
27   his sole and separate property.     Accordingly, Pass changed her
28   address of record with the bankruptcy court to indicate that the

                                        3
 1   Coalinga House was her residence.
 2        In December 2011, still without having requested relief from
 3   the automatic stay, Pass and Galli executed and recorded a grant
 4   deed, purporting to transfer the Manila Avenue House to Pass and
 5   Galli as joint tenants (“Grant Deed”).       Pass later changed her
 6   address of record again, indicating that the Manila Avenue House
 7   was her residence.   In April 2013, the state court entered a
 8   judgment of marital dissolution, which purported to grant Pass
 9   and Galli each a one-half interest in the Manila Avenue House
10   (“Dissolution Judgment”).   Once again, relief from stay was
11   neither sought nor granted.
12        In September 2013, Pass moved the bankruptcy court to sever
13   the joint chapter 13 case and to convert her case to chapter 7.
14   The court granted both requests.       Pass was assigned to a new
15   chapter 7 case, while Galli remained in the original chapter 13
16   case.   Pass filed a new amendment to her schedules, now claiming
17   an exemption in the Coalinga House under CCP § 704.730 in the
18   amount of $75,000.   As for Galli, it appears that he stopped
19   making payments under the chapter 13 plan, and his case was
20   dismissed.
21        The Trustee was appointed to administer Pass’ chapter 7
22   estate.   He objected to Pass’ claimed exemption in the Coalinga
23   House, alleging that she was not in fact living at the Coalinga
24   House on the date of the order for relief in the original joint
25   case.   The Trustee noted that, on the joint petition and
26   schedules, both Pass and Galli had indicated they resided at the
27   Manila Avenue House.
28        After an evidentiary hearing on the Trustee’s objection, the

                                        4
 1   bankruptcy court entered a memorandum decision and an order
 2   overruling the objection.   The court was persuaded by Pass’
 3   testimony that she left the Manila Avenue House and moved into
 4   the Coalinga House, with no intention ever to return, hours
 5   before the joint petition was filed.   The order overruling the
 6   Trustee’s objection and allowing Pass’ exemption in the Coalinga
 7   House was entered on November 3, 2014, and was not appealed.
 8        Meanwhile, the Trustee had also begun efforts to sell the
 9   Manila Avenue House.   He made a motion under § 363(f) to sell the
10   Manila Avenue House free and clear of any interest of Galli,
11   notwithstanding a new declaration of homestead Galli had filed in
12   January 2014 (“2014 Homestead Declaration”).   Shortly before a
13   hearing on the § 363(f) motion, the Trustee filed an adversary
14   proceeding seeking (i) to avoid the property transfers effected
15   by the Separation Judgment, the 2011 Grant Deed and the
16   Dissolution Judgment, as well as Galli’s 2014 Homestead
17   Declaration; (ii) to determine the nature, extent and validity of
18   interests in the Manila Avenue House; and (iii) for authority to
19   sell the Manila Avenue House.
20        The court held its hearing on the § 363(f) motion on May 29,
21   2014.   Along with the Trustee’s counsel, Pass appeared through
22   counsel in support of the motion.    Galli appeared in opposition
23   to the motion, which he aptly characterized as “a motion to take
24   [his] home.”   At the hearing on the § 363(f) motion, the court
25   commented on the muddled status of the ex-spouses’ respective
26   property interests and exemption rights.   While acknowledging the
27   Trustee’s contention that the postpetition title transfers were
28   void due to the automatic stay, the court concluded that “the

                                      5
 1   status of title right now is there’s a co-owner to this house,
 2   and you can’t sell co-owned property without an adversary
 3   proceeding.”   Thus, the court refused to grant the § 363(f)
 4   motion without first resolving the title and exemption issues
 5   through the adversary proceeding.
 6        In December 2014, the Trustee moved for summary judgment in
 7   the adversary proceeding based on stipulated facts agreed to by
 8   Galli.2   Among other things, they stipulated that the transfers
 9   of the Manila Avenue House had been made without relief from the
10   automatic stay and that the Manila Avenue House was community
11   property as of the December 2009 petition date.   Based on those
12   stipulations, the Trustee argued that no dispute existed as to
13   any material fact, and he was entitled as a matter of law to
14   judgment on the following points:
15        1.   The transfers made in the Separation Judgment, the Grant
16   Deed and the Dissolution Judgment were void, because they were in
17   violation of the automatic stay.
18        2.   The transfers made in the Separation Judgment, the Grant
19   Deed and the Dissolution Judgment should be avoided because they
20   were made in violation of Pass and Galli’s confirmed chapter 13
21   plan, as well as the bankruptcy court’s General Order 05-03,
22   which prohibited such property transfers without the chapter 13
23
24        2
             The Trustee failed to include a copy of the motion for
25   summary judgment in his excerpts of the record. We have
     exercised our discretion to take judicial notice of papers filed
26   with the bankruptcy court. See O’Rourke v. Seaboard Sur. Co. (In
27   re E.R. Fegert, Inc.), 887 F.2d 955, 957-58 (9th Cir. 1988);
     Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R.
28   227, 233 n.9 (9th Cir. BAP 2003).

                                        6
 1   trustee’s consent or court order.
 2        3.   The transfers made in the Dissolution Judgment and the
 3   2014 Homestead Declaration were “void as being post petition
 4   transfers.”
 5        4.   The Manila Avenue House was community property and
 6   therefore property of the Pass bankruptcy estate.
 7        5.   Galli had no entitlement to a homestead exemption in the
 8   Manila Avenue House.
 9        The court set out its findings and conclusions regarding the
10   summary judgment motion in a memorandum decision.   Based on the
11   parties’ stipulation, the court concluded that there was no
12   dispute as to any issue of material fact.   As to the community
13   property issue, the court concluded that Galli had conceded the
14   point, and no dispute remained.   But, as to the issue of Galli’s
15   claimed homestead exemption, the court concluded that Galli had a
16   valid “homestead interest” that could not be avoided.
17        The bankruptcy court went on to explain that it based its
18   decision on the 2002 Homestead Declaration filed by Pass and
19   Galli.    Noting that a declaration of homestead prevents judgment
20   liens from attaching to the declared homestead unless there is
21   sufficient equity to pay the homestead exemption in full, and
22   that the Trustee’s liquidation powers “are derived from those of
23   a creditor who holds a judgment lien,” the court concluded that
24   the Trustee could not sell the Manila Avenue House without paying
25   Galli the value of his homestead exemption.   The court rejected
26   the Trustee’s argument that the declaration of homestead cannot
27   prevent an involuntary sale.   Instead, the court reasoned that
28   the proposed sale could be analyzed as either voluntary or

                                       7
 1   involuntary, but “[e]ither way, . . . the Trustee will have to
 2   pay Galli the value of his Declared Homestead . . . .”
 3        Based on the conclusions laid out in the memorandum
 4   decision, the bankruptcy court entered an order disposing of the
 5   summary judgment motion (“Summary Judgment Order”), which
 6   provided as follows:
 7             IT IS HEREBY ORDERED that the motion for summary
          judgment is GRANTED in so far as the Trustee seeks a
 8        declaration that the [Manila Avenue House] is still
          community property of the Galli/Pass marriage and still
 9        property of this bankruptcy estate.
               IT IS FURTHER ORDERED that the Motion for summary
10        judgment is DENIED with respect to the Trustee’s
          request that the [Manila Avenue House] may be sold free
11        and clear of Galli’s homestead interest with no
          compensation to Galli.
12
13   Two weeks later, the court entered judgment consistent with the
14   Summary Judgment Order (“Judgment”).   The Judgment first declared
15   all of the following void: (1) the purported transfer of the
16   Manila Avenue House to Galli as his sole and separate property as
17   part of the Separation Judgment; (2) the Grant Deed executed by
18   Galli purporting to transfer an undivided 50% interest in the
19   Manila Avenue House to Pass; (3) the Dissolution Judgment, to the
20   extent that it purported to grant Pass and Galli each a 50%
21   interest in the Manila Avenue House; and (4) Galli’s 2014
22   Homestead Declaration.    Accordingly, the Judgment declared that
23   the Manila Avenue House remained both community property and
24   property of the estate.   Finally, the Judgment declared that
25   Galli had a “homestead interest” by virtue of the 2002 Homestead
26   Declaration, and the Trustee had no authority to sell the Manila
27   Avenue Property without compensating Galli for his interest.
28        The Trustee appealed separately from the Summary Judgment

                                       8
 1   Order and the Judgment.
 2                                II.    JURISDICTION
 3        The bankruptcy court had jurisdiction under 28 U.S.C.
 4   §§ 1334 and 157(b)(2)(B).          We have jurisdiction under 28 U.S.C.
 5   § 158.
 6                                  III.     ISSUES
 7        1.    Whether the 2002 Homestead Declaration operates to
 8   prevent the Trustee from selling the Manila Avenue House without
 9   compensating Galli.
10        2.    Whether Galli is entitled to an automatic homestead
11   exemption under California law.
12                          IV.     STANDARD OF REVIEW
13        We review de novo the bankruptcy court’s decision to grant
14   or deny summary judgment.          Heers v. Parsons (In re Heers), 529
15   B.R. 734, 740 (9th Cir. BAP 2015); Khaligh v. Hadaegh (In re
16   Khaligh), 338 B.R. 817, 823 (9th Cir. BAP 2006), aff’d, 506 F.3d
17   956 (9th Cir. 2007).   If the appellant is entitled to summary
18   judgment, we may reverse and grant summary judgment in favor of
19   the appellant.   Nat’l Motor Freight Traffic Ass’n v. Superior
20   Fast Freight, Inc. (In re Superior Fast Freight, Inc.), 202 B.R.
21   485, 487 (9th Cir. BAP 1996).          We likewise apply de novo review
22   to the bankruptcy court’s interpretation of state law.          Diaz v.
23   Kosmala (In re Diaz), 547 B.R. 329, 333 (9th Cir. BAP 2016).
24                                 V.     DISCUSSION
25        We agree with the bankruptcy court that the facts are not in
26   dispute.   Thus, the Trustee is entitled to summary judgment only
27   if he can show he is “entitled to judgment as a matter of law.”
28   Civil Rule 56(a); Rule 7056; Anderson v. Liberty Lobby, Inc., 477

                                             9
 1   U.S. 242, 249 (1986).   The only provisions of the Summary
 2   Judgment Order and the Judgment that are challenged on appeal are
 3   those concerning Galli’s “homestead interest.”   We limit our
 4   review to those issues.
 5        The bankruptcy court premised its decision regarding the
 6   homestead issue on the protections accorded to declared
 7   homesteads, as opposed to the automatic homestead exemption.    The
 8   Trustee argued before the bankruptcy court and argues on appeal
 9   that neither benefit was available to Galli.   In the discussion
10   that follows, we are mindful of the imperative under California
11   law to construe exemption statutes liberally in favor of the
12   debtor.   Wells Fargo Fin’l Leasing, Inc. v. D & M Cabinets, 177
13   Cal. App. 4th 59, 73 (2009).   At the same time, we must not
14   “rewrite the California legislature’s scheme for homestead
15   protection.”   Redwood Empire Production Credit Assoc. v. Anderson
16   (In re Anderson), 824 F.2d 754, 759 (9th Cir. 1987).
17   A.   There are two varieties of homestead protection under
          California law.
18
19        We begin our discussion with a brief review of the nature of
20   California homestead law.   Under California law, two species of
21   homestead protection are available to judgment debtors, the
22   “automatic” (or Article 4) homestead exemption and the “declared”
23   (or Article 5) homestead protection,3 respectively.    These
24   protections are available under different circumstances, they
25
26        3
             The California statute does not use the word “exemption”
27   to describe the declared homestead protection. Indeed, as
     discussed below, a declaration of homestead does not create any
28   exemption directly except in the proceeds of a voluntary sale.

                                     10
 1   serve different purposes and they confer different rights on
 2   debtors.     “[T]here is no overlap between these rights.”     Id. at
 3   756 (emphasis added).     Depending on the circumstances, a given
 4   debtor may be entitled to one or the other, or to both, or to
 5   neither.     Id.
 6        1.    The Article 4 automatic homestead exemption
 7        The Article 4 automatic homestead exemption is applicable
 8   under California law when a person’s homestead is damaged,
 9   destroyed, taken by eminent domain or sold involuntarily in
10   satisfaction of a debt.     CCP § 704.720(b).   For purposes of
11   bankruptcy law, the creation of the bankruptcy estate upon the
12   filing of the petition is treated as equivalent to an involuntary
13   sale.     In re Diaz, 547 B.R. at 334.   Thus, the automatic
14   homestead exemption is applicable in bankruptcy cases.
15        This is an “exemption” in the familiar bankruptcy law sense:
16   it prevents the judgment creditor (or the bankruptcy trustee)
17   from forcing a sale of the homestead unless there is sufficient
18   equity to pay the debtor the amount of the exemption.      The debtor
19   is entitled to be paid ahead of the judgment creditor or trustee.
20   CCP § 704.850(a)(1)-(4).     The exemption protects a “homestead,”
21   defined as a dwelling in which the debtor or the debtor’s spouse
22   resided on the date the judgment creditor’s lien attached (in
23   bankruptcy, the petition date) and has resided continuously until
24   the court’s determination that the dwelling is a homestead.       CCP
25   § 704.710(c).      Thus, this protection is available in bankruptcy
26   if the debtor was living in the home on the petition date.        The
27   exemption is “automatic” in the sense that it requires no
28   affirmative act by the debtor to make it effective; rather, it

                                        11
 1   applies automatically to any dwelling that meets the definition.
 2         2.   The Article 5 declaration of homestead
 3         If, however, the debtor chooses to record a declaration of
 4   homestead with the county recorder’s office, the debtor is
 5   entitled to additional protections, including, without
 6   limitation, the following:
 7              i.     Lien Attachment: If a debtor is entitled to an
 8   automatic homestead exemption, the filing of a declaration of
 9   homestead prevents judgment liens from attaching to the portion
10   of the debtor’s equity in the homestead covered by the exemption.
11   CCP § 704.950(c).     Note that this provision does not
12   independently create an impediment to a forced sale.      See CCP
13   § 704.920.4     It shields the exempt equity against the future
14   attachment of judgment liens.     See Katz v. Pike (In re Pike), 243
15   B.R. 66, 70 (9th Cir. BAP 1999).
16              ii.    Voluntary Sale: If a homesteader voluntarily sells
17   the declared homestead, the proceeds of that sale are themselves
18   exempt for six months.     CCP § 704.960(a).   This protects debtors
19   from the danger that eager creditors will pounce as soon as the
20   homestead is reduced to cash.     Under this provision, the debtor
21   has six months to reinvest that cash before creditors can reach
22   it.
23         This protection differs from the lien attachment protection
24   in two important ways.     First, it creates an actual exemption (in
25
26         4
             To the extent the homestead property remains a
27   “dwelling,” as defined in CCP § 704.710(a), all Article 4
     protections in relation to forced sale apply. See CCP
28   § 704.970(b).

                                       12
 1   proceeds of a voluntary sale), rather than merely enhancing the
 2   automatic exemption.   Second, it can exist even if a debtor is
 3   not entitled to an automatic exemption, for instance, if the
 4   debtor does not satisfy the continuous residency requirement.     In
 5   re Anderson, 824 F.2d at 757 (after homestead declaration is
 6   recorded, “moving away from the homestead does not destroy the
 7   [voluntary sale] exemption status”).
 8        As noted above, the protections pertaining to a declared
 9   homestead are separate and distinct from the automatic homestead
10   exemption, though a debtor may enjoy both sets of protections if
11   he or she satisfies the requirements for both.    A declaration of
12   homestead by itself generally does not confer protections or
13   rights in relation to a forced sale.    Kelley v. Locke (In re
14   Kelley), 300 B.R. 11, 21 (9th Cir. BAP 2003); In re Anderson, 824
15   F.2d at 758.
16   B.   The declared homestead protections in this case
17        Because the filing of a bankruptcy petition is equivalent to
18   a forced sale, it is typically the automatic exemption, not the
19   declared homestead protection, that applies to sales by
20   bankruptcy trustees.   In re Kelley, 300 B.R. at 17.   This
21   proposition would seem to render the 2002 Homestead Declaration
22   irrelevant to the summary judgment motion, but the bankruptcy
23   court gave a number of reasons for concluding otherwise.
24        First, the bankruptcy court reasoned that “the Trustee’s
25   powers to liquidate estate assets are derived from those of a
26   creditor who holds a judgment lien.    § 544.”   Salvi v. Galli (In
27   re Pass), Adv. No. 14-01056 at 12 (Bankr. E.D.Cal. October 14,
28   2015).   Because a homestead declaration shields the homestead

                                     13
 1   from the attachment of judgment liens, the court concluded that
 2   the 2002 homestead declaration likewise shielded the Manila
 3   Avenue Property from the Trustee’s reach.      We reject this
 4   conclusion.   To begin with, although § 544 empowers the Trustee
 5   to exercise the rights of prepetition lienholders for some
 6   purposes, not all of “the Trustee’s powers to liquidate estate
 7   assets” are derived in this way.       Section 363 permits trustees to
 8   use, sell or lease property belonging to the bankruptcy estate,
 9   regardless of whether any prepetition creditor could have done
10   so.
11         It is true that, for purposes of allowing or disallowing
12   state law exemptions, courts treat the filing of the bankruptcy
13   petition as the date on which a hypothetical judgment lien
14   attaches.   It does not follow that the Trustee’s power over
15   estate assets constitutes an actual lien that must “attach”
16   before it can be exercised.   The lien attachment restrictions
17   arising from the declaration of homestead do not prevent the
18   Trustee from exercising his sale powers.
19         Second, the bankruptcy court pointed to the following
20   language from CCP § 704.960(b):
21         If the proceeds of a declared homestead are invested in
           a new dwelling within six months after the date of a
22         voluntary sale or within six months after proceeds of
           an execution sale or of insurance or other
23         indemnification for damage or destruction are received,
           the new dwelling may be selected as a declared
24         homestead by recording a homestead declaration within
           the applicable six-month period. In such a case, the
25         homestead declaration has the same effect as if it had
           been recorded at the time the prior homestead
26         declaration was recorded.
27   (emphasis added).   The bankruptcy court interpreted the
28   emphasized language as “protecting” the proceeds of an

                                       14
 1   involuntary sale, contrary to our statement in Kelley that “the
 2   additional benefits conferred in Article 5 would benefit [the
 3   debtor] only in the situation of a voluntary sale.”    In re
 4   Kelley, 300 B.R. at 21 (emphasis in original).
 5        The “additional benefits” we referred to in Kelley were,
 6   primarily, the six-months exemption provided by Article 5 for
 7   proceeds of a voluntary sale (and further encompassing extension
 8   of protections if the proceeds are timely reinvested in a new
 9   homestead).   The quoted statutory language does not create an
10   entitlement to proceeds, nor does it create an exemption in
11   proceeds.   A comparison of subsections (a) and (b) of CCP
12   § 704.960 makes this conclusion inescapable.   Subsection (a)
13   reads: “If a declared homestead is voluntarily sold, the proceeds
14   of sale are exempt . . .” (emphasis added).    Subsection (b), as
15   quoted above, does not use the word “exempt” at all.    Instead, it
16   provides that if a declared homestead is sold involuntarily, and
17   the debtor for some independent reason is entitled to receive
18   proceeds from that sale (perhaps because he also enjoys an
19   automatic homestead exemption, or perhaps because the sale
20   generates a surplus), and the debtor reinvests those proceeds in
21   a new homestead, and the debtor records a new homestead
22   declaration, then the new declaration will relate back to the
23   date of the original homestead declaration.    If the debtor is not
24   otherwise entitled to receive proceeds, this provision does not
25   change that situation.
26        Finally, the bankruptcy court suggested that the Trustee’s
27   proposed sale of the Manila Avenue House might alternatively be
28   considered a voluntary sale, because the Manila Avenue House “is

                                     15
 1   property of the estate over which the Trustee is effectively the
 2   owner.”   Salvi v. Galli (In re Pass), Adv. No. 14-01056 at 10
 3   (Bankr. E.D.Cal. October 14, 2015).   We must reject this
 4   proposition as inconsistent with our previous decisions holding
 5   that the filing of the bankruptcy petition itself constitutes a
 6   “forced sale” for exemption purposes.   In re Diaz, 547 B.R. at
 7   334; In re Kelley, 300 B.R. at 21; In re Pike, 243 B.R. at 70.
 8        The bankruptcy court declined to decide whether Galli might
 9   be entitled to an automatic homestead exemption under Article 4.
10   However, in order to determine whether the undisputed facts
11   entitled the Trustee to judgment as a matter of law, we must turn
12   next to this issue.
13   C.   The automatic homestead exemption is available to Galli.
14        When Pass and Galli initially filed their joint chapter 13
15   petition, they asserted an entitlement to an automatic homestead
16   exemption in the Manila Avenue House.   There is no question that
17   this exemption is available to bankruptcy debtors, and there is
18   no dispute that Galli was entitled to it at the time.   Since the
19   filing of the petition, Pass and Galli have divorced, and Galli’s
20   bankruptcy case has been dismissed.   Thus, in order to determine
21   whether Galli is entitled to an automatic homestead exemption in
22   the Manila Avenue House, we must answer two questions: First,
23   whether Galli, as a non-debtor, may assert any exemption in
24   property of the Pass bankruptcy estate; and second, whether Galli
25   is entitled to a homestead exemption under California law.
26        1.    Galli’s non-debtor status does not preclude his
                claiming an exemption in estate property.
27
28        In answering the first question, we confront a dearth of

                                     16
 1   published decisions involving circumstances analogous to those
 2   present here.     We decided a related question in Burman v. Homan
 3   (In re Homan), 112 B.R. 356 (9th Cir. BAP 1989).     There, the non-
 4   debtor wife of a chapter 7 debtor attempted to claim a state-law
 5   homestead exemption in a home that was property of the bankruptcy
 6   estate.    The debtor had claimed no exemption in the home and had
 7   asserted unrelated federal exemptions instead.     We held that the
 8   debtor’s decision not to claim an exemption “binds” the non-
 9   filing spouse.    Id. at 359.   Because he had elected not to claim
10   the home as exempt, his wife was unable to claim an exemption of
11   her own.    Id.
12        What is true of spouses, however, is not necessarily true of
13   ex-spouses.    In Homan, we recognized that Congress designed the
14   exemption provisions of the Code “to encourage spouses to file
15   jointly.”    Id. at 360.   We noted that the debtor’s wife was
16   seeking “to do as a nondebtor spouse what she would be prohibited
17   from doing as a joint debtor,” namely asserting an exemption that
18   was inconsistent with the list of exemptions already asserted by
19   the debtor.    Id.   This concern is absent here, as Galli is no
20   longer married to Pass.     The congressional goal of encouraging
21   joint filings has no applicability to ex-spouses, since ex-
22   spouses are not permitted to file jointly.     Also inapplicable to
23   Galli is the community property discharge, which we identified as
24   a counterbalancing advantage to the otherwise “hard result” of
25   denying non-debtor spouses any say in the selection of
26   exemptions.    Id.   In short, with respect to Galli, we see neither
27   the statutory concern that animated the reasoning of Homan nor
28   the primary factor that mitigated the harshness of its result.

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 1   We therefore decline to extend Homan beyond the situation to
 2   which it was addressed, namely the attempt by a non-filing,
 3   current spouse of a debtor to assert exemptions to which he or
 4   she would not be entitled as a joint debtor.
 5        The mere fact that Galli is not the debtor does not prohibit
 6   him from asserting a state law exemption in property of the
 7   bankruptcy estate.   Instead, we must look to California law to
 8   determine whether the undisputed facts entitle Galli to an
 9   automatic homestead exemption in the Manila Avenue House.
10        2.   Galli is entitled to an automatic homestead exemption.
11        Even if Galli’s non-debtor status does not prevent him from
12   asserting a homestead exemption, the Trustee nevertheless argues
13   that he is not entitled to exempt the Manila Avenue House.    The
14   Trustee correctly points out that a debtor’s entitlement to claim
15   exemptions is determined as of the original petition date.
16   Moffatt v. Habber (In re Moffatt), 119 B.R. 201, 204 n.3 (9th
17   Cir. BAP 1990); Cisneros v. Kim (In re Kim), 257 B.R. 680, 685
18   (9th Cir. BAP 2000).    Thus, because Pass and Galli were married
19   when they filed their joint petition, the Trustee argues that
20   both of them are limited to the exemption rights they enjoyed as
21   a married couple on the petition date.   Since California law
22   prohibits spouses from claiming exemptions in more than one
23   homestead, and since Pass successfully defended her exemption in
24   the Coalinga House, the Trustee asks us to conclude that Galli
25   may not claim an exemption in the Manila Avenue House.
26        Though it has a certain syllogistic plausibility, we must
27   reject this argument.   The principle that exemption rights are
28   determined as of the petition date cannot be stretched so far as

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 1   to require that a debtor’s marital status on the petition date is
 2   fossilized for the duration of the case.    Even less should former
 3   joint debtors whose cases have been severed and dismissed be
 4   yoked, for state-law exemption purposes, to their ex-spouses who
 5   remain in bankruptcy.    To hold otherwise would flout the well-
 6   established principle that “bankruptcy courts [should] avoid
 7   incursions into family law matters . . . .”    Allen v. Allen (In
 8   re Allen), 275 F.3d 1160, 1163 (9th Cir. 2002)(quoting MacDonald
 9   v. MacDonald (In re MacDonald), 755 F.2d 715, 717 (9th Cir.
10   1985).    We must determine Galli’s homestead rights under
11   California law based on his marital status as of the present, not
12   as of the petition date.5
13        Under California law, as the Trustee notes, where spouses
14   reside in separate homesteads, only one of the homesteads is
15   exempt.    CCP § 704.720(c).   If Pass and Galli were still married,
16   this would appear to be dispositive.    However, “after the
17   judgment of dissolution or legal separation, each former spouse
18   has the right to declare a homestead on any property in which he
19   or she has an interest and actually resides.”    12 W. Scott
20   Shepard and Karl E. Geier, Cal. Real Est. § 43:40 (4th ed. 2016).
21   Moreover, each former spouse “qualif[ies] for the automatic
22   exemption for property on which he or she resides . . . .”     Id.
23   We agree with the bankruptcy court that there is no dispute that
24
          5
25           The Trustee’s counsel suggested during oral argument that
     this approach would permit postpetition exemption planning by
26   spouses, who could obtain a divorce after filing in order to
     augment their exemptions. We are disinclined to allow such a
27   speculative concern to drive us to the draconian result the
28   Trustee seeks, particularly as there is no indication in the
     record that Pass and Galli sought their divorce for any collusive
     or otherwise improper purpose.

                                       19
 1   Galli was living at the Manila Avenue House on the date the joint
 2   petition was filed.6   Thus, the bankruptcy court properly
 3   concluded that the Trustee may not sell the Manila Avenue House
 4   without compensating Galli.
 5        The Trustee’s final argument is that, if Galli has a
 6   “homestead interest,” the bankruptcy court was required to
 7   determine the dollar value of that interest.   As the bankruptcy
 8   court correctly noted, however, this relief was not requested in
 9   the Trustee’s complaint, and it is not necessary to make this
10   determination unless and until the Trustee attempts to sell the
11   Manila Avenue House.
12                             VI.   CONCLUSION
13        Based upon the foregoing, we conclude that the bankruptcy
14   court erred in concluding that the 2002 Homestead Declaration
15   prevented the Trustee from selling the Manila Avenue House.   We
16   conclude, however, that Galli is entitled to an automatic
17   homestead exemption in the Manila Avenue House.   Consequently, we
18   AFFIRM both the Summary Judgment Order and the Judgment.
19
          6
20           The Trustee’s power, if any, to sell the Manila Avenue
     House arises from the filing of the original joint petition. For
21   purposes of determining a debtor’s homestead exemption rights
22   under California law, bankruptcy courts treat the filing of the
     petition as both the attachment of a hypothetical judgment lien
23   and, simultaneously, as the court determination that the dwelling
     is a homestead. In re Diaz, 547 B.R. at 335. There appears to
24
     be no dispute in this appeal that the same analysis applies to
25   the determination of a non-debtor’s exemption rights in estate
     property. We assume, without deciding, that this is correct.
26        The Trustee’s counsel further conceded at oral argument that
27   the Trustee’s proposed sale should be treated as involuntary,
     hence capable of triggering the automatic homestead exemption.
28   Again, as the issue is not disputed, we need not decide it and
     will treat the proposed sale as an involuntary or forced sale
     under California law.

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