In re Arends

506 B.R. 516, 71 Collier Bankr. Cas. 2d 899, 2014 WL 846179, 2014 Bankr. LEXIS 829
CourtUnited States Bankruptcy Court, N.D. Iowa
DecidedMarch 4, 2014
DocketNo. 13-00645
StatusPublished
Cited by1 cases

This text of 506 B.R. 516 (In re Arends) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Arends, 506 B.R. 516, 71 Collier Bankr. Cas. 2d 899, 2014 WL 846179, 2014 Bankr. LEXIS 829 (Iowa 2014).

Opinion

OPINION RE: OBJECTION TO CLAIM OF HOMESTEAD EXEMPTION

THAD J. COLLINS, Chief Judge.

These matters came before the Court on Trustee Wil Forker’s Objection to Debtors’ Homestead Exemption. The Court held a hearing on this matter on August 27, 2013. Wil Forker, Chapter 7 Trustee, appeared on his own behalf. Attorney Martha McMinn appeared on behalf of Debtors Larry and Jann Arends (collectively “Debtors”). After hearing the arguments, the Court took this matter under advisement. This is a core proceeding under 28 U.S.C. § 157(b)(2)(B).

STATEMENT OF THE CASE

Before filing for bankruptcy, Debtors cashed in two life insurance policies for $28,000 and paid down their home mortgage. After they filed for bankruptcy, Debtors claimed their homestead as exempt. Trustee brought an Objection to Debtors’ Homestead Exemption. Trustee argues that Debtors’ homestead exemption should be reduced by $28,000 because Debtors converted non-exempt property into exempt property with the “intent to hinder, delay, or defraud a creditor” under 11 U.S.C. § 522(o)(4). Debtors resisted. They admitted that they transferred their life insurance equity into their homestead before bankruptcy, but argue this was permissible pre-bankruptcy planning. It does not show the improper intent necessary to [519]*519invoke 11 U.S.C. § 522(o)(4). For the reasons that follow, the Court concludes that Debtors did not convert non-exempt property and did not act with the “intent to hinder, delay, or defraud a creditor” under § 522(o)(4). Therefore, the Court denies Trustee’s objection.

FINDINGS OF FACT

In April, 1990, Debtors purchased two life insurance policies from Northwestern Mutual. In February, 2013, Debtors met with a bankruptcy attorney for the first time. At that meeting, they were mistakenly informed that the equity in those two life insurance policies exceeded the allowable amount under the Iowa exemption statute. Debtors also learned, however, that any equity they had in their homestead could be claims as exempt.

On March 6, 2013, Debtors cashed out the $28,000 of equity they had in the two policies. The money went into their bank account where it remained for six days while the check cleared. On March 12, 2013, Debtors wired $28,250 from that account to their mortgage company to pay down their home mortgage and increase their equity in the home.

On April 23, 2013, Debtors returned to their attorney’s office to sign the bankruptcy petition and schedules their attorney had completed since their first meeting. Debtors’ bankruptcy schedules were not updated before the bankruptcy filing to reflect the $28,250 payment on their mortgage.

Debtors filed for bankruptcy on April 25, 2013. Debtors claim their home’s value is $80,000, with a secured lien of $34,300. They claim the equity in the home is entirely exempt under Iowa’s homestead exemption statute.

At Debtors’ initial meeting of creditors, the Trustee requested Debtors’ bank statements. Debtors realized they left the statements in their car but offered to go and get them. Trustee told them that it would be sufficient if they sent the statements to Trustee the next day. Debtors’ attorney sent the statements to the Trustee the following day.

When Trustee examined the bank statements, Trustee discovered the large mortgage payment just before the bankruptcy filing. He filed an Objection to Debtors’ Homestead Exemption. Trustee acknowledges that the $28,000 may have been exempt as life insurance, but when it went into Debtors’ bank account on March 6, 2013 as cash, it became a non-exempt asset. Trustee alleges that Debtors’ then improperly converted that non-exempt asset into an exempt asset when they paid that money to their mortgage company to reduce their loan and increase their equity in their home.

Trustee notes that, at the initial meeting of creditors, he asked Debtors if their schedules were correct and they stated “Yes.” Trustee also asked Debtors if they had made any payments recently and they stated “No.” Trustee argues that this transfer of non-exempt property to exempt property, combined with the fact that Debtors left the transaction off of their bankruptcy schedules, stated that their schedules were correct, and stated that they had not made any payments recently, shows that Debtors acted with the “intent to hinder, delay, or defraud a creditor” under 11 U.S.C. § 522(o )(4). Trustee argued that Debtors’ homestead exemption should be reduced by the $28,000 payment.

Debtors acknowledged that they acted for the purpose of both maximizing exemptions and reducing their mortgage payments because of health concerns. Debtors argued and offered evidence that they did not intend “to hinder, delay, or defraud a creditor” as is required under 11 U.S.C. [520]*520§ 522(o )(4). Debtors stated that they inadvertently left the mortgage payment off of their bankruptcy schedules. Debtor Larry Arends testified that the schedules were originally prepared at their first meeting in February. He said they only “skimmed over” the schedules when they returned to sign the paperwork in April. He noted there was no follow up discussion with their lawyer about the conversion of the insurance money into their homestead. He testified that they both thought the bankruptcy schedules were correct when they answered Trustee’s question at the creditor’s meeting. Additionally, Debtor Larry Arends testified that he thought that Trustee asked him if he had made any payments other than on his mortgage, to which he replied “No.” He testified that he did not mean to defraud or keep money from creditors “in a way that wasn’t allowed.”

At the hearing, Debtors’ attorney took full responsibility for leaving the transaction off of the schedules. She also admitted that she incorrectly advised Debtors when she told them that the $28,000 in life insurance equity exceeded the exemption limit and suggested that they might want to convert the money into home equity.

CONCLUSIONS OF LAW & ANALYSIS

I. Operation of § 522(o) in an “Opt-Out” State

Section 522 of the bankruptcy code determines exemptions. 11 U.S.C. § 522(b)(3)(A) allows a debtor to exempt from the bankruptcy estate:

... any property that is exempt under Federal law, other than subsection (d) of this section, or State or local law that is applicable on the date of filing of the petition at the place in which the debt- or’s domicile has been located for the 730 days immediately preceding the date of the filing of the petition, or if the debtor’s domicile has not been located at a single State for such 730-day period, the place in which the debtor’s domicile was located for 180 days immediately preceding the 730-day period or for a longer portion of such 180-day period than in any other place ...

11 U.S.C. § 522(b)(3)(A).

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Cite This Page — Counsel Stack

Bluebook (online)
506 B.R. 516, 71 Collier Bankr. Cas. 2d 899, 2014 WL 846179, 2014 Bankr. LEXIS 829, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-arends-ianb-2014.