In re Bogetti

349 B.R. 14, 2006 Bankr. LEXIS 2143, 2006 WL 2422810
CourtUnited States Bankruptcy Court, E.D. California
DecidedAugust 18, 2006
DocketNo. 01-23174-A-7
StatusPublished
Cited by4 cases

This text of 349 B.R. 14 (In re Bogetti) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Bogetti, 349 B.R. 14, 2006 Bankr. LEXIS 2143, 2006 WL 2422810 (Cal. 2006).

Opinion

MEMORANDUM DECISION

MICHAEL S. McMANUS, Chief Judge.

On or about October 9,1997, the debtors created a trust, the Robert P. Bogetti and Deolinda M. Bogetti Retirement Plan and Trust. The res of the trust includes real property located at 3950 W. Durham Ferry Road, Tracy, California (“the property”). The debtors were both the settlors and the beneficiaries of the trust.

On May 16, 2000, Bank of America (“BofA”) obtained a judgment against the debtors in the amount of $2,621,081.03. BofA recorded an abstract of the judgment in San Joaquin County on May 24, 2000 and again on May 25, 2000. The resulting judicial liens retroactively attached to the property by virtue of a writ of attachment identifying the property and recorded on or about December 2,1998.

On June 26, 2000, the debtors filed this bankruptcy case. The debtors claimed the property as exempt pursuant to Cal.Civ. Proc.Code § 704.730(a)(3). They also claimed their interest in the trust, as well as the property, exempt under Cal.Civ. Proc.Code § 704.115(b).

The debtors argued in an adversary proceeding, Adv. No. 01-2122, that BofA’s judicial hen was avoidable for reasons having nothing to do with 11 U.S.C. § 522(f)(1)(A). In that proceeding, the debtors maintained that the writ of attachment was defective, thereby preventing the relation back of the abstracts of judgment. This allegedly meant that the abstracts became effective within 90 days of the filing of the petition, making the resulting judicial liens avoidable as preferential transfers. See 11 U.S.C. § 547(b).

On BofA’ motion, however, the court dismissed the adversary proceeding on July 9, 2001, ruling:

The debtors have an interest in the trust but not in the res of the trust. The [16]*16property of the trust is owned by the trustees [of the Bogetti’s trust] ... The real property is not now property of the estate and an action under 11 U.S.C. § 547 cannot lie. The motion will be granted. Because it is yet possible for the [property in the trust] to become property of the estate, the complaint will be dismissed without prejudice.

See Minutes of Hearing, July 9, 2001. An appeal of the dismissal followed but it was voluntarily dismissed by the debtors.

Next, the United States Trustee and BofA objected to the debtors’ claims of exemptions. On October 4, 2001, the court issued a Memorandum Decision, sustaining the objection to the section 704.115 exemptions and overruling the objection to the section 704.730 exemptions.

As to the $125,000 homestead exemption claimed pursuant to section 704.730 in connection with the property, the court concluded:

1. The trust held legal title to the property.
2. The debtors, as beneficiaries of the trust, held a beneficial interest in the trust but not in the property in the trust. This interest is property of the bankruptcy estate even though the trust instrument contained a spendthrift provision. If enforceable, this provision would prevent the debtors’ beneficial interest in the trust from becoming property of the estate. However, the spendthrift provision was unenforceable under California law because the settlors and the beneficiaries were the same persons. See Cal. Probate Code § 15304(a) (making self-settled spendthrift trusts unenforceable).
3. The debtors, as settlors of the trust, had a beneficial interest in the property held in trust even though the trust purported to be irrevocable. In substance, the trust was revocable because the debtors were the only beneficiaries and Cal. Probate Code § 15403(a) permits all beneficiaries to agree to terminate an irrevocable trust. As a result, the property held in trust remained subject to the claims of the debtors’ creditors. See Cal. Probate Code §§ 18200. Further, the invalidity of the spendthrift provision also meant that the creditors of the debtors/settlors, but for the bankruptcy petition, could satisfy them claims against the property and the other trust assets. See Cal. Probate Code § 15304(a).
4. Because the interest of the debtors as settlors of the trust in trust assets could be reached by their creditors, those assets are also subject to the reach of the bankruptcy trustee.
5. However, because the property and other trust assets are subject to claims of creditors and the trustee, the debtors, as settlors of the trust, are entitled to claim exemptions in the trust property. See Cal. Probate Code § 18201.
6. Therefore, the court overruled the objections to the debtors’ homestead exemption pursuant to Cal.Civ.Proc.Code § 704.730(a)(3) in the amount of $125,000.1

The debtors appealed this court’s order, contending that its earlier dismissal of Adv. Pro. 01-2122 on the ground that the legal interest in the trust property was not property of the estate meant that the debtors’ beneficial interest in the trust and in the trust property also was not property of the estate.

The Bankruptcy Appellate Panel rejected this assertion, and in affirming the deci[17]*17sion of this court, concluded on May 14, 2002:

... The question, for purposes of determining property of the estate, is whether debtors have a legal or beneficial interest in the property. Because the legal and beneficial interests in trust property are held by separate entities, it was not error for the bankruptcy court to determine whether each of those interests is property of the estate.
A debtor’s beneficial interest in property is property of the estate, unless excluded because it is subject to an antialienation clause that is enforceable under nonbankruptcy law. [Citations omitted.] The trust in this case contains an antialienation provision. However, because debtors are the settlors of the trust, as well as its beneficiaries, the provision restraining alienation is unenforceable under California law. Cal. Probate Code § 15304(a). As a result, debtors’ beneficial interest in the trust or the trust corpus is property of the estate.

The decision of the Bankruptcy Appellate Panel was affirmed by the Ninth Circuit on August 18, 2003.

The debtors now move to avoid BofA’s judicial lien pursuant to 11 U.S.C. § 522(f)(1)(A). Given the court’s prior conclusion that the debtors could claim a homestead exemption, the avoidability of BofA’s judicial lien pursuant to section 522(f)(1)(A) is ripe for decision.

The court first must decide the extent of the debtors’ interest in the property they have exempted.

BofA maintains that the debtors’ interest is limited to just $125,000 of equity in the property.

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Cite This Page — Counsel Stack

Bluebook (online)
349 B.R. 14, 2006 Bankr. LEXIS 2143, 2006 WL 2422810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bogetti-caeb-2006.