By Ryan C. Wood

In California, as part of the Ninth Circuit, the answer should be yes. The main distinction here is that California is a community property state. There are decisions from of circuits that contradict the decision discussed below. California is a community property state and both spouses are assumed to have command and control of community property assets. So why can a wholly unsecured or underwater lien be stripped if only one spouse files for bankruptcy?

The scenario is that a couple buys a house during marriage and therefore the presumption is the house is a community property asset. To be clear, there is no evidence to rebut this community property presumption because there is no evidence the funds used to purchase the house, pay the mortgage, insurance or property tax came from any separate property source. If there is any question as to whether the house is not community property be careful. So in this discussion the house is clearly a community property asset when filing for bankruptcy protection. Pursuant to Section 541(a)(2)(A) or (B) of the Bankruptcy Code all interests of the debtor and debtor’s spouse in community property as of the commencement of the case that is under the sole, equal, or joint management and control of the debtor; or liable for an allowable claim against the debtor, or for both an allowable claim against the debtor and an allowable claim against the debtor’s spouse, to the extent that such interest is so liable.

If the provisions of Section 541(a)(2)(A) or (B) are met then the community property of both spouses becomes property of the estate when one spouse files a bankruptcy petition. See In re Miller, 167 B.R. 202, 205 (Bankr.C.D.Cal. 1994). This issue was addressed in In re Maynard, 264 B.R. 209 (9th Cir. BAP 2001). In Maynard, Lillian B. Maynard filed for bankruptcy protection under Chapter 13 of the Bankruptcy Code and sought to strip off a wholly underwater mortgage from her real property. Her spouse did not file with her. Maynard’s bankruptcy attorneys filed a motion to value the property and eventually an order was entered ordering that the creditor’s claim is stripped as an encumbrance against Maynard’s real property and shall hereinafter be treated as a general unsecured claim pursuant to Maynard’s Chapter 13 Plan.

The creditor appealed various rulings of the lower bankruptcy court including whether the lien could be stripped given Maynard’s husband did not file for bankruptcy as well. The 9th Circuit Bankruptcy Appellate Panel held that under California law each spouse has an equal right to manage community property. Lawrence P. King et al., COLLIER FAMILY LAW 4.03[3][c] (Rev. 2000). Therefore, the real property of the nondebtor or non-filing spouse is included in the filing spouses or debtor’s estate and a creditor’s entire lien is subject to valuation and avoidance pursuant to Section 506(d) of the Bankruptcy Code.

If a fractional interest becomes property of the bankruptcy estate be careful. Bankruptcy lawyers should research how the property was purchased and how title of the property was taken at the time of purchase. The whole interest in the property the lien is trying to be stripped from must be part of the bankruptcy estate.