In re: Ana J. Fox

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: July 2, 2013
• Docket: NV-11-1009-JoJuH
• Status: Unpublished

Opinion

FILED JUL 02 2013 1 SUSAN M SPRAUL, CLERK 2 U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT

3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. NV-11-1009-JoJuH ) 6 ANA J. FOX, ) Bk. No. 10-19096-LBR ) 7 Debtor. ) ______________________________) 8 ) YVETTE WEINSTEIN, Chapter 7 ) 9 Trustee, ) ) 10 Appellant, ) ) 11 v. ) M E M O R A N D U M1 ) 12 ANA J. FOX, ) ) 13 Appellee. ) ______________________________) 14 Submitted Without Oral Argument on September 14, 2011, 15 at Las Vegas, Nevada 16 Filed - July 2, 2013 17 Appeal from the United States Bankruptcy Court for the District of Nevada 18 Honorable Linda B. Riegle, Bankruptcy Judge, Presiding 19 20 Appearances: Elizabeth E. Stephens of Sullivan Hill Lewin Rez & Engel on brief for Appellant Yvette Weinstein, 21 Chapter 7 Trustee. 22 Before: JOHNSON,2 JURY and HOLLOWELL, Bankruptcy Judges. 23 24 1 25 This disposition is not appropriate for publication. Although it may be cited for whatever persuasive value it may 26 have (see Fed. R. App. P. 32.1), it has no precedential value. See 9th Cir. BAP Rule 8013-1. 27 2 Hon. Stephen L. Johnson, Bankruptcy Judge for the Northern 28 District of California, sitting by designation. 1 The appellant chapter 73 trustee objected to Nevada law 2 vehicle and “wildcard” exemptions claimed by debtor on behalf of 3 her non-filing spouse. The bankruptcy court overruled the 4 objection and held that debtor may assert exemptions belonging 5 not only to herself but also to her non-filing spouse. The 6 trustee appealed. We REVERSE. 7 I. FACTS 8 The relevant facts are undisputed. On May 18, 2010, 9 Appellee Ana J. Fox (“Ana”) filed a petition for relief under 10 chapter 7. Her husband, Clifford Fox (“Clifford”), did not join 11 in the petition and did not file a separate petition for relief. 12 Appellant Yvette Weinstein was appointed as the chapter 7 trustee 13 (“Trustee”). 14 In Schedule B, Ana listed a checking account with a balance 15 of $131.72, a savings account with a balance of $74.64, and a 16 joint checking account with her non-filing spouse with a balance 17 of $50.04. In addition, she listed two accounts with the 18 description “Non-Filing Spouse’s Account” (“Non-Filing Spouse’s 19 Accounts”) which have a total balance of $1,002.80. Ana listed 20 two vehicles in Schedule B: a Toyota with a value of $7,635.00 21 and a Volkswagen with a value of $12,000.00. In the column which 22 indicates how the property is owned – by husband, wife, joint, or 23 community – no notation was made as to any of the properties. 24 25 3 Unless otherwise indicated, all chapter, section and rule 26 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037, as 27 enacted and promulgated after October 17, 2005 (the effective date of The Bankruptcy Abuse Prevention and Consumer Protection 28 Act of 2005 (“BAPCPA”)). - 2 - 1 In Schedule C, Ana claimed all five of the bank accounts, 2 including the Non-Filing Spouse’s Accounts, as exempt for a total 3 amount of $1,259.20 under the “wildcard” exemption in Nevada 4 Revised Statute (“N.R.S.”) § 21.090(1)(z).4 She also claimed the 5 full value of the two vehicles – the Toyota and Volkswagen – as 6 exempt under N.R.S. § 21.090(1)(f). 7 Trustee objected to the “wildcard” exemption claimed by Ana 8 to the extent the total amount of the “wildcard” exemption 9 claimed exceeded the $1,000 provided by N.R.S. § 21.090(1)(z). 10 Trustee also objected to the vehicle exemptions on the ground the 11 statute only allows Ana to exempt one vehicle. Trustee argued 12 that Ana may not claim exemptions attributable to her non-filing 13 spouse, Clifford. 14 Ana filed a response, relying on an Arizona bankruptcy case, 15 In re Perez, 302 B.R. 661 (Bankr. D. Ariz. 2003), in which the 16 court held that a debtor could assert state exemptions in 17 community property for herself and her non-filing spouse. Ana 18 argued that because Nevada, like Arizona, is a community property 19 state, the same rationale should apply. Trustee replied that 20 neither Nevada law nor the Bankruptcy Code allows a debtor to 21 claim exemptions on behalf of a non-filing spouse. 22 The bankruptcy court heard argument and issued a written 23 order overruling the objections of Trustee, holding that a debtor 24 may claim an exemption for herself and her non-filing spouse in 25 26 4 Ana also used the “wildcard” exemption to exempt cash in 27 the amount of $25.00 and Citigroup stocks in the amount of $139.01. Thus, the total amount claimed exempt under N.R.S. 28 § 21.090(1)(z) is $1,423.21. - 3 - 1 community property under Nevada law. 2 This appeal timely ensued. 3 4 II. PROCEDURAL BACKGROUND 5 After taking the appeal under submission, the Panel 6 determined that the disposition of the appeal turns on an 7 important question of Nevada law and entered an Order Certifying 8 a Question to the Supreme Court of Nevada on October 7, 2011, 9 pursuant to Rule 5 of the Nevada Rules of Appellate Procedure. 10 The certified question was “whether the motor vehicle and 11 wildcard exemptions may be claimed on behalf of a non-debtor 12 spouse” under N.R.S. 21.090(1)(f) and (z). 13 14 III. CONCLUSION 15 We adopt the opinion of the Nevada Supreme Court filed on 16 May 30, 2013, ___ P.3d ____, 129 Nev. Adv. Op. 39, attached 17 herein, answering our certified question. For reasons stated in 18 the opinion, Ana may only claim a motor vehicle exemption for one 19 vehicle and a wildcard exemption not to exceed $1,000 on behalf 20 of herself. She is not permitted to claim the exemptions on 21 behalf of her non-debtor spouse. Accordingly, we REVERSE. 22 23 24 25 26 27 28 - 4 -