MEMORANDUM OPINION

BARRY S. SCHERMER, Bankruptcy Judge.

The issue before me is whether, and to what extent, the judicial lien of J&M Securities, LLC ("J&M") impairs the exemption of Patricia Anne Moore ("Moore") in her residence. The essential facts of this case are not in controversy. Upon careful consideration and based on the record and arguments made at the hearing, I make the following findings of fact and conclusions of law.

BACKGROUND

On September 6, 2011, Moore filed a voluntary petition for relief under Chapter 7 of Title 11 of the United States Code (the "Bankruptcy Code"). A month later, Moore's bankruptcy case was converted to a case under Chapter 13.

J&M is the holder of a state court judgment against Moore, and a holds a lien against Moore's home commonly known as 2470 Whitshire Drive, St. Louis, Mo 63129 (the "Property"). Moore and J&M agree that Moore holds only a one half ownership interest in the Property. She owns the Property with her brother and his wife, who together hold one half of the property. Moore occupies the Property as her homestead; as the other two owners of the Property do not occupy or claim it as their homestead.

On March 9, 2005, a judgment entered against Moore in the Circuit Court of St. Louis County. The judgment was transcribed on June 7, 2006, effecting a lien upon the Property. J&M obtained the judgment by assignment. The parties agree for the purposes of Moore's §522(f) motion, that as of the petition date, the amount of the judgment and, therefore, the judgment lien, was $72,770.73, and that the value of the Property as of the petition date was $143,000.00. There is no dispute that Anheuser-Busch Employees' Credit Union ("ABECU") holds a consensual lien against the Property in the amount of $108,603.00. J&M's judicial lien is senior to the lien of ABECU.

On Schedule C in her Chapter 7 case and in her Chapter 13 case, Moore claimed a homestead exemption of $15,000.00 in the Property pursuant to MO. REV. STAT. §513.475. J&M objected to Moore's claim of a homestead exemption in her Chapter 7 case, but it did not file an objection to Moore's claim of an exemption on her Chapter 13 Schedule C. Moore's Chapter 13 plan was confirmed, meaning that her plan met the best interest of creditors test under Bankruptcy Code §1325(a)(4).

Moore filed a motion seeking to avoid the judicial lien of J&M in its entirety. J&M filed a response to Moore's motion, asking that the relief requested in the motion be denied. ABECU filed a response in support of the motion. Moore, J&M and ABECU appeared before me for a hearing, at which time I established a deadline for the parties to submit briefs. Moore, J&M and ABECU each filed a brief.

DISCUSSION

This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§1334(b), 157(b)(2)(K) and Local Rule 9.01(B) of the United States District Court for the Eastern District of Missouri. This is a core proceeding pursuant to 28 U.S.C. §157(b)(2)(K).

J&M made several arguments regarding why it believes Moore cannot avoid its lien under §522(f).1 I hold that Moore is entitled to avoid $70,572.23 of J&M's $72,770.73 lien, leaving J&M a lien in the amount of $2,198.50 on Moore's Property.

A. 11 U.S.C. § 522(f)

Section 522(f) of the Bankruptcy Code provides, in pertinent part, that:

11 U.S.C. §522(f).

As a part of the 1994 amendments to the Bankruptcy Code, "[§522(f)] was enacted to permit the avoidance of judicial liens that can interfere with the debtor's post-petition fresh start." Kolich v. Antioch Laurel Veterinary Hospital Inc., P.C., 328 F.3d 406, 410 (8th Cir. 2003). As the Eighth Circuit Court of Appeals stated in Kolich,

Kolich, 328 F.3d at 410 (citing H.R.Rep, No. 103-835, at 52-54 (1994), reprinted in 1994 U.S.C.C.A.N. 3340, 3361-63, Holland v. Star Bank, N.A. (In re Holland), 151 F.3d 547, 549-51 (6th Cir. 1998)).

According to J&M, Moore cannot avoid its lien under §522(f) because she has no equity in the Property over the amount of ABECU's lien since "$108,603 of ABECU mortgage applies to Patricia Moore's $71,500 real property interest." J&M maintains that, therefore, Moore has no exemption to preserve.

Whether Moore has equity in the Property is irrelevant to the determination of whether she can avoid J&M's lien under § 522(f). In Kolich, the debtors were entitled to avoid a judicial lien where consensual liens were greater than the value of the property. Kolich v. Antioch Laurel Veterinary Hospital Inc., P.C., 328 F.3d 406, 410 (8th Cir. 2003). As the Bankruptcy Appellate Panel stated in its Kolich opinion, "[t]he bankruptcy court was correct when it determined that Debtors were entitled to lien avoidance even though they had no equity in the property." Kolich v. Antioch Laurel Veterinary Hospital Inc., P.C., 273 B.R. 199, 202 (B.A.P. 8th Cir. 2002), aff'd 328 F.3d 406 (8th Cir. 2003). The legislative history of §522(f)(2)(A)" makes clear that the [1994] amendments [to the Bankruptcy Code] were intended to overrule several cases which reached the opposite result." Id. at 204 (citing H.R. REP. NO. 835, 103d Cong., 2d Sess. 45 (1994), reprinted in 1994 U.S.C.C.A.N. 3340, 3354) (additional citation omitted)).

Application of the statutory formula for avoiding a judicial lien, (after accepting certain stipulations as discussed below), results in avoidance of $70,572.23 of J&M's $72,770.73 lien. The formula requires calculation of:

The resulting number signifies the extent of impairment of Moore's exemption.

(1) The lien (the judicial lien of J&M)

The parties agree that the amount of J&M's judicial lien is $72,779.73.

(2) All other liens on the Property

J&M maintains that ABECU's lien is junior to the lien of J&M and, therefore, ABECU's lien should not be included in the §522(f)(2)(A)(ii) calculation. In Kolich, the Eighth Circuit applied the plain language of §522(f)(2)(A)(ii) and included a junior consensual lien in the statutory calculation, allowing the debtors to avoid a senior judicial lien. 328 F.3d 406. As rationale for its argument that ABECU's lien should not be included in the §522(f)(2)(A) analysis, J&M criticizes the Eighth Circuit's holding in Kolich and argues that "there is absolutely no evidence in the legislative history to the 1994 Amendments that Congress intended to abrogate long-standing state lien priority laws." I am bound by the Eighth Circuit's Kolich decision.

Moore and J&M urge me to include only one half of the lien amount due ABECU since Moore only owns one half of the Property. One half of ABECU's consensual lien is $54,301.50.2 Because Moore and J&M agree that half of ABECU's lien should be used in the §522(f)(2)(A)(ii) equation, I use only half of ABECU's lien in my analysis and I do not analyze whether I should use the full amount (rather than a fractional share) of a joint consensual or other lien in future cases where a debtor holds a fractional interest in property, but the lien applies to the entire property.3

The amount of "all other liens on the [P]roperty" is $54,301.50.

(3) The amount of the exemption that Moore could claim if there were no liens on the Property

The amount of Moore's exemption in the Property for the purposes of the §522(f)(2)(A)(iii) calculation is $15,000.00. Missouri has opted out of the federal exemption scheme. MO.REV.STAT. §513.427. The relevant exemption statute here, MO. REV. STAT. §513.475.1, provides, that:

MO. Rev. STAT. §513.475.1 "If the property is owned by more than one owner, a single owner can claim the entire amount." Abernathy v. LaBarge (In re Abernathy), 19 Fed. Appx. 460 (8th Cir. 2001) (per curiam) (quoting Van Der Heide v. LaBarge (In re Van Der Heide), 164 F.3d 1183, 1186 (8th Cir. 1999)). "The only limit to this is that if more than one owner claims an exemption in the same homestead, their total claimed exemption cannot exceed [$15,000.00] in the aggregate." Abernathy v. LaBarge (In re Abernathy), 259 B.R. 330, 333 (B.A.P. 8th Cir. 2001), aff'd 19 Fed. Appx. 460 (8th Cir. 2001) (per curiam).

J&M and Moore agree that Moore's brother and sister-in-law (who own the one half interest in the Property that Moore does not own) do not reside on the Property. Nothing in the record suggests that the other two owners of the Property would claim it as their homestead. Because Moore is the only owner using the Property as her homestead and, therefore, the only party claiming an exemption in it, she may claim the full $15,000.00 amount. Abernathy, 259 B.R. at 333 (debtor entitled to claim full exemption where there was "no suggestion that one of the other joint tenants has claimed or is claiming an exemption in this property. . .").

J&M maintains that Moore is entitled to an exemption of only $7,500.00 (if she is entitled to an exemption at all) in the §522(f)(2)(A)(iii) calculation. According to J&M, Moore is entitled to only half of the Missouri homestead exemption because she has held herself out as being married and living on the Property with her spouse and, therefore, she should be estopped from denying that she is married.4

Although not specifically stated by J&M, J&M appears to argue for application to this case of the Eighth Circuit's decision in Van Der Heide v. LaBarge (In re Van Der Heide), 164 F.3d 1183 (8th Cir. 1999). In Van Der Heide, the Eighth Circuit created an exception to §513.475.1 and allowed the debtor to claim only one half of the Missouri homestead exemption in real property the debtor held in a tenancy by the entireties with a spouse who was not a debtor in bankruptcy. Id. The Bankruptcy Appellate Panel in Abernathy (as affirmed by the Eighth Circuit), acknowledged that "the Van Der Heide decision does create an exception to §513.475.1 under certain particular circumstances in the bankruptcy context." 259 B.R. at 337. The court then stated that "the [Van Der Heide] decision is limited to cases in which one spouse files for bankruptcy relief and seeks to use [the Eighth Circuit's decision in Garner v. Strauss (In re Garner), 952 F.2d 232, 234 (8th Cir. 1991)] to protect the non-filing spouse's share of entireties property from joint creditors." Id. (emphasis added). There is no evidence that Moore and the person J&M identifies as Moore's husband own the Property as tenants by the entireties. In fact, J&M stated that Moore owns half of the Property as a tenant in common, and it admitted the person it alleged to be Moore's husband "has no ownership interest in the Property." The plain language of §513.475.1 applies here and the full amount of the Missouri homestead exemption, $15,000.00, is used in the §522(f)(2)(A)(iii) calculation.

During Moore's Chapter 7 case, J&M objected to Moore's claimed homestead exemption in its entirety on the basis that there is no equity in the Property, and to the amount of the exemption, stating Moore's exemption is limited to $7,500.00 based on the claim that Moore is married and living with her spouse on the Property. J&M attempts to incorporate into its arguments in this matter the arguments made in its objection to Moore's claimed exemption. I have already explained why J&M's arguments lack merit in the §522(f) context.5

The "amount of the exemption that [Moore] could claim if there were no liens on the [P]roperty" is $15,000.00.

(4) Minus value that Moore's interest in the Property would have in the absence of any liens

Moore and J&M agree (and ABECU does not contest) that Moore holds a one half interest in the Property, that the value of the Property was $143,000.00 on the petition date, and that $71,500.00 should be used as Moore's interest in the Property under §522(f)(2)(A).

(5) Extent of the impairment

J&M's lien impairs the Debtor's exemption in the amount of $70,572.23, calculated as follows:

CONCLUSION

Moore may avoid $70,572.23 of J&M's judicial lien, the extent to which the lien impairs Moore's homestead exemption. The judgment held by J&M shall continue to be a lien against Moore's Property only in the amount of $2,198.50. J&M's judicial lien shall be reinstated in its entirety upon dismissal of Moores' bankruptcy case.