In re Carter

550 B.R. 433, 2016 Bankr. LEXIS 1707, 2016 WL 1574603
CourtUnited States Bankruptcy Court, W.D. Wisconsin
DecidedApril 15, 2016
DocketCase No. 15-10406
StatusPublished
Cited by3 cases

This text of 550 B.R. 433 (In re Carter) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Carter, 550 B.R. 433, 2016 Bankr. LEXIS 1707, 2016 WL 1574603 (Wis. 2016).

Opinion

MEMORANDUM DECISION

ROBERT D. MARTIN, UNITED STATES BANKRUPTCY JUDGE

Debtor, Jayne Carter, commenced this Chapter 7 case on February 10, 2015. In her schedules she claimed fee simple ownership of two pieces of real property; 4229 Barby Lane, Madison, Wisconsin (the “Madison residence”), and 5370 Linden Street, Laona, Wisconsin (the “Laona resi[435]*435dence”). Although Carter maintained legal residence in Madison at the time of filing, she claimed the Laona residence as her exempt homestead under Wis. Stat. § 815.20. The Chapter 7 trustee objected to the claimed exemption.

Carter purchased the Madison residence in 2011. She testified that the Madison residence was her primary residence from the time of purchase until July 8, 2015. She used the Madison residence address on her driver’s license at the time of filing. She received mail at that address. She claimed and received a homestead property tax credit for the Madison residence for 2013 and 2014. She also listed the Madison address on her vehicle title and registration, her 2013 and 2014 tax returns, and on her bankruptcy petition.

Carter’s father built the Laona residence in the mid-1950s. Before July 8, 2015, Carter had last used the Laona residence as her primary residence sometime in 1982. It was, however, conveyed to her by a warranty deed subject to her mother’s life estate in 1986. That deed was recorded in the Forest County, Wisconsin, Register’s Office on January 4, 2002. Carter’s mother died in 2004. Carter moved many of the furnishings from the Laona residence to her home in Madison.

Carter spent at least two weekends a month and several weeks during the summer at the Laona residence from 2002 until July, 2015, except 12 months following her divorce in 2009 when she lived in Florida. Carter testified that the Laona residence was furnished and that she kept canned and frozen food and some of her clothing there. She said she always considered the Laona residence as her home because all of her family lived in the Laona area and she had no substantial ties to Madison. On July 8, 2015, after finding employment in the Laona area. Carter moved from Madison to the Laona residence.

Carter sought exemption for the Laona residence under Wis. Stat. § 815.20. She relied on the interpretation of that statute in In re Lackowski, No. 08-21496-pp (Bankr.E.D. Wis. Sept. 2008). The trustee objected to the claimed exemption on the grounds that Carter resided in Madison, not Laona, at the time her petition was filed.

Wis. Stat. § 990.01(14) defines an exempt homestead as follows:

“Exempt homestead” means the dwelling, including a building, condominium, mobile home, manufactured home, house trailer or cooperative or an unincorporated cooperative association, and so much of the land surrounding it as is reasonably necessary for its use as a home, but not less than 0.25 acre, if available, and not exceeding 40 acres, within the limitations as to value under § 815.20, except as to liens attaching or rights of devisees or heirs of persons dying before the effective date of any increase of that limitation as to value.

Wis. Stat. § 990.01 (2015). Further, Wis. Stat. § 815.20(1) codifies Wisconsin’s state homestead exemption. To wit:

An exempt homestead as defined in § 990.01(14) selected by a resident owner and occupied by him or her shall be exempt from execution from the lien of every judgment, and from liability for the debts of the owner to the amount of $75,000, except mortgages, laborers’, mechanics’, and purchase money liens and taxes and except as otherwise provided. The exemption shall not be impaired by temporary removal with the intention to reoccupy the premises as a homestead nor by the sale of the homestead, but shall extend to the proceeds derived from the sale to an amount not exceeding $75,000, while held, with the [436]*436intention to procure another homestead with the proceeds, for 2 years.

Wis. Stat. § 815.20 (2015).

As this court has previously noted, ‘Wisconsin has a public policy of protecting the homestead exemption and homestead statutes have enjoyed particularly liberal construction.” In re Laube, 152 B.R. 260, 261 (Bankr.W.D.Wis.1993) (citations omitted). Thus, “[a]s stated by the Wisconsin Court of Appeals, ‘homestead statutes are remedial legislation and, as such, are to be liberally construed in favor of the debtor.’” Id. (citing State Central Credit Union v. Bigus, 101 Wis.2d 237, 304 N.W.2d 148 (Wis.Ct.App.1981)). Further, “[u]nder Wisconsin law, there is a presumption that the property a debtor selects as the homestead for purposes of the exemption is, in fact, homestead property.” In re Lackowski, No. 08-21496-pp, at *7 (Bankr.E.D.Wis. Sept. 2008) (citing Moore v. Krueger, 179 Wis.2d 449, 507 N.W.2d 155, 159 (Wis.App.1993)). Additionally, under FRBP 4003(c), “the objecting party has the burden of proving that the exemptions are not properly claimed.” Fed. R. Bank. P. 4003. Accordingly, here, there is a liberally construed presumption that Carter’s claimed exemption is valid, and the burden is on the trustee to demonstrate that it is not.

In Lackowski, the court addressed the application of § 815.20(1) to a debtor who maintained legal residence in one home yet claimed to occupy another as her homestead. No. 08-21496-pp (Bankr.E.D.Wis. Sept. 2008). There, the debtor’s apparent legal residence was 6628 South 13th Street, Oak Creek, Wisconsin (the Oak Creek property), in Milwaukee County. She listed the Oak Creek address on her state tax returns for the three years preceding her bankruptcy filing, listed it as her address on her car title and ATV registration, listed it as her address on her driver’s license, and listed it as her address on her Chapter 7 petition. However, in her bankruptcy she claimed the § 815.20(1) exemption for a mobile home located at 763 S. Walker Street in Adams, Wisconsin.

In response to the trustee’s objection, the debtor testified that she only resided at the Oak Creek property during the work'week, that the referenced documents simply bore the Oak Creek property address out of convenience, and that she considered the Adams property to be her home. Id. at 4-6. As to her occupancy of the Adams property, the debtor “testified that when she was not working, she was at the [Adams property].” Id. at 4. Additionally, the debtor testified that “she spent holidays at the Adams property,” that the Adams property was “fully furnished as a home,” that “she had no family in the Milwaukee area,” that she “owned a burial plot in Adams,” and that the Adams property was the only real property she had ever owned.

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Bluebook (online)
550 B.R. 433, 2016 Bankr. LEXIS 1707, 2016 WL 1574603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-carter-wiwb-2016.