MEMORANDUM OF DECISION

WILLIAM C. HILLMAN, Bankruptcy Judge.

I. INTRODUCTION

The matter before the Court is the "Restated Objection to Claim of Exemption" (the "Objection") filed by William C. Roberts ("Roberts") and the "Opposition of Debtor to Objection to Claim of Exemption" (the "Opposition") filed by Marie A. D'Italia (the "Debtor").1 Roberts objects to the Debtor's claimed exemption under the Massachusetts Homestead Statute2 on the basis of waiver. For the reasons set forth below, I will overrule the Objection.

II. BACKGROUND

A. Procedural History

The Debtor filed a voluntary Chapter 7 petition with all schedules and statements on October 16, 2013. On "Schedule A — Real Property" ("Schedule A"), she listed a single family residence located at 36 Studio Drive in Buzzards Bay, Massachusetts (the "Property") which she jointly owns with her spouse as tenants by the entirety. The Debtor estimates the value of the Property to be approximately $950,000.00. The Property is subject to the following encumbrances:

          Creditor's Name                      Nature of the Lien     Amount of the Claim

Bank of New York Mellon, f/k/a The Bank of     Mortgage               $779,206.35
New York

Roberts                                        Judgment Lien          $539,000.00

Perkins Paper, Inc.                            Judgment Lien          $ 12,591.63

On "Schedule C — Property Claimed as Exempt" ("Schedule C"), the Debtor claimed an exemption in the Property pursuant to Mass. Gen. Laws ch. 188, § 1 in the amount of $500,000.00.

The Debtor appeared at the meeting of creditors held pursuant to 11 U.S.C. § 341(a) on November 20, 2013. The same day, Donald Lassman, the duly appointed Chapter 7 trustee, filed a Chapter 7 Trustee's Report of No Distribution indicating that there were no non-exempt assets available for distribution to creditors.

On December 19, 2013, Roberts filed the Objection. The Objection is one page long and simply states:

The grounds for the this objection are as follows:

The Debtor filed the Opposition on December 28, 2013, disputing the allegations of the Objection. Two days later, on December 30, 2013, the Debtor moved to avoid the judicial liens of both Roberts and Perkins Paper, Inc., but her motion was denied without prejudice because the Debtor's calculation did not comply with 11 U.S.C. § 522(f)(2)(A).4 The Debtor has not yet filed a renewed motion, but has indicated her intention to do so.5

I conducted a hearing on the Objection on January 10, 2014. At the hearing, Roberts' counsel explained that the basis of the alleged waiver was a guaranty signed by the Debtor and her non-debtor spouse.6 Although counsel read a paragraph of this guaranty into the record, he neither submitted it to the Court nor offered any factual background to place it in context. In response, the Debtor's counsel emphasized that the lien in question is an execution, not a voluntary encumbrance, and that the purported waiver was not recorded in a manner to effectuate a termination of homestead rights under the statute.7 At the conclusion of oral arguments, I took the matter under advisement, but ordered Roberts to "file a brief explaining the facts and circumstances surrounding the alleged waiver and attach a copy of said waiver and any other supporting documentation."8

On January 17, 2014, Roberts timely filed the "Brief of Creditor, William C. Roberts, in Support of Objection to Debtor's Homestead Claim" (the "Brief"). Notably, Roberts expressly abandoned all bases for his objection to the Debtor's homestead other than the alleged waiver. The Debtor did not file a response to the Brief.9

B. Factual History

Although the Brief is vague as to the timeline of events, at some point pre-petition, the Debtor, her spouse, and Roberts entered into negotiations with respect to acquiring a leasehold in property owned by an entity controlled by Roberts for the purpose of opening a Dunkin Donuts franchise location. In addition to the leasehold, Roberts agreed to provide a restricted purpose loan of up to $250,000 to "build out" the leasehold, cover certain startup costs of the Dunkin Donuts location, and improve certain commercial real estate in Wareham, Massachusetts which the Debtor and her spouse pledged as collateral for the loan (the "Wareham Property"). To facilitate their agreement, the Debtor and her spouse executed (1) a commercial lease; (2) a loan agreement; (3) a promissory note; (4) a mortgage; and (5) a personal guaranty of their obligations under the prior documents (the "Guaranty"). The Guaranty contains the following waiver (the "Waiver"):

Things apparently did not go as planned, and Roberts brought suit under Mass. Gen. Laws ch. 93A, § 11 against the Debtor and her spouse in the Norfolk County Superior Court for misrepresentations made at the outset of their dealings (the "Superior Court Action"). He ultimately obtained a judgment and execution in the Superior Court Action, which the Barnstable County Sheriff levied against the Property on August 1, 2012. Roberts also foreclosed the mortgage on the Wareham Property, resulting in a large deficiency claim.

III. POSITIONS OF THE PARTIES

A. Roberts

Roberts argues that under the above quoted passage of the Guaranty, the Debtor unequivocally waived her homestead rights with respect to her obligations stemming from their various agreements. Though he freely admits that the Guaranty was not recorded, Roberts contends that a waiver in this context is distinct from the concept of a termination of the homestead under the Massachusetts Homestead Statute. He posits that Mass. Gen. Laws ch. 188, § 10 only applies to releases which completely eliminate homestead protection with respect to all other creditors. In contrast, Roberts seeks a personal exception from the homestead protection that is otherwise available to the Debtor based on their contractual agreement. Thus, he asserts that such a waiver need not comply with Mass. Gen. Laws ch. 188, § 10 and does not offend public policy in light of its limited impact on the availability of the statutory protections.

B. The Debtor

From the outset, the Debtor emphasizes that Roberts' lien is merely a judgment lien, and not a voluntary encumbrance based upon any executed documents. Furthermore, she takes a broader reading of the Massachusetts Homestead Statute than Roberts, concluding that a waiver of homestead rights must be a viewed as a "release" of the homestead under the statute. Therefore, pursuant to Mass. Gen. Laws ch. 188, § 10, the Debtor asserts that the Waiver must be recorded in the appropriate registry to be effective.

IV. DISCUSSION

Because no one, Roberts included, has challenged the underlying validity of the Debtor's homestead exemption, my analysis begins with the premise that the Property is exempt pursuant to Mass. Gen. Laws ch. 188, § 1 et seq.11 To properly set the stage, however, I note that Mass. Gen. Laws ch. 188, § 10(a) provides that an estate of homestead may be terminated by any of the following acts:

There is no question that Roberts did not comply with this section and thus did not effectuate a "termination" of the Debtor's homestead. Instead, the issue framed by the parties is whether a waiver is (or rather, needs to be) a "release" under Mass. Gen. Laws ch. 188, § 10(a)(2), requiring the Waiver to have been duly recorded for it to be enforceable. Roberts responds in the negative, asserting that waiver is a distinct legal concept that falls outside the scope of "termination" as embodied in that section. Assuming, arguendo, that he is correct and that state law does not require a waiver of homestead to comply with Mass. Gen. Laws ch. 188, § 10(a)(2) to be effective, I find that the Bankruptcy Code nonetheless renders the Waiver unenforceable in this case.

From the outset, it is important to recognize that Roberts is currently the holder of an execution, i.e., a judicial lien, and not a mortgage.13 The Bankruptcy Code does not offer the same protections to judicial lienholders that are afforded to those who hold consensual or statutory liens. Indeed, 11 U.S.C. § 522(f)(1)(A) allows a debtor to avoid the fixing of a judicial lien "on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled"14 but for the lien itself, which the Supreme Court of the United States in Owen v. Owen explained "denotes a state of affairs that is conceived or hypothetical, rather than actual, and requires the reader to disregard some element of reality."15 Section 522(e) of the Bankruptcy Code, in turn, provides that

Nevertheless, 11 U.S.C. § 522(e), which I note applies equally to exemptions claimed under either federal or state law,17 further provides that:

Notably, while 11 U.S.C. § 522(e) expressly refers to only holders of unsecured claims, 11 U.S.C. § 522(f)(1) contains an unqualified prefatory phrase which states "[n]otwithstanding any waiver of exemptions...."19 In Owen v. Owen, the Supreme Court interpreted this provision to mean that

Reading 11 U.S.C. §§ 522(e) and (f)(1) together, I conclude that a judicial lienholder should be viewed as a "creditor that holds an unsecured claim" for purposes of 11 U.S.C. § 522(e). While this may seem initially counterintuitive, 11 U.S.C. § 522(f)(1)(A) operates "[n]otwithstanding any waiver of exemptions,"21 meaning that if a judicial lien hypothetically impairs the exemption, the lienholder's exemption waiver is unenforceable. If the judicial lien is not subject to avoidance under 11 U.S.C. § 522(f)(1)(A) because it does not impair an exemption, then the exemption waiver is irrelevant. Therefore, as a practical matter, there is no circumstance in which an exemption waiver in favor of a judicial lienholder would be enforceable under 11 U.S.C. § 522(e), but not 11 U.S.C. § 522(f)(1)(A).

This result is also consonant with the legislative history and purpose of 11 U.S.C. §§ 522(e) and (f).22 Generally, the anti-waiver provisions represent a clear departure from the practice under the former Bankruptcy Act, where, so long as state law allowed, exemptions could be waived in favor of particular creditors by agreement.23 By enacting 11 U.S.C. § 522(e), Congress meant to "prevent frustration of the Bankruptcy Code by standard provisions in contracts of adhesion."24 Taken as a whole, however, 11 U.S.C. § 522 preserves a debtor's fresh start by preventing a general unsecured creditor from elevating its status to that of a consensual lienholder simply by obtaining a judicial lien and a waiver of either an exemption or the avoidance power of 11 U.S.C. § 522(f)(1).

For the above stated reasons, I conclude the Waiver is unenforceable.

V. CONCLUSION

In light of the foregoing, I will enter an order overruling the Objection.