In Re Heater

189 B.R. 629, 1995 Bankr. LEXIS 1802, 1995 WL 747096
CourtUnited States Bankruptcy Court, E.D. Virginia
DecidedNovember 7, 1995
Docket19-10661
StatusPublished
Cited by12 cases

This text of 189 B.R. 629 (In Re Heater) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Heater, 189 B.R. 629, 1995 Bankr. LEXIS 1802, 1995 WL 747096 (Va. 1995).

Opinion

MEMORANDUM OPINION

BLACKWELL N. SHELLEY, Bankruptcy Judge.

This matter comes before the Court on Motion by Bruce H. Matson, trustee in Bankruptcy (the “Trustee”) for Christopher L. Heater and Adrianne D. Heater (the “Debtors”), objecting to certain exemptions claimed by the Debtors. This is a core proceeding, over which this Court has jurisdiction pursuant to 28 U.S.C. §§ 157(b)(2)(B) and 1334. The parties have stipulated to the facts, submitted memoranda of law in support of their positions, and have waived oral argument. After consideration of the pleadings, the joint stipulations of fact, the written arguments of each party, and upon review of the relevant law, this Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

The Debtors filed for relief pursuant to Chapter 7 of the Bankruptcy Code on July 13, 1994. The Trustee was appointed as interim trustee, and continues to serve as the trustee in the Debtors’ Chapter 7 proceeding.

As of the date of their bankruptcy filing, the Debtors owned a certain parcel of real property located in Seward County, Nebraska (the “Nebraska Property”). On Schedule C of the Debtors’ Schedule of Assets and Liabilities, the Debtors claimed an exemption valued in the amount of $9,000 in the Nebraska Property. In an apparent attempt to perfect their exemption, on July 14, 1994, the Debtors filed Homestead Deeds for Personal Property in the Clerk’s Office of the Circuit Court of Chesterfield County, notwithstanding the fact that the Debtors claimed residence in Henrico County, Virginia. The Homestead Deeds recorded in Chesterfield County were designated as Homestead Deeds for Personal Property, and claimed, among other personal property, an aggregate exemption of $9,000 related to the Nebraska Property, describing said exemption as “equity in real estate located at 406 Dimery, Nebraska — proceeds from foreclosure sale.” (Debtors’ Ex. 2 at 1, 3).

The Nebraska Property was transferred to a third party, apparently pursuant to a foreclosure sale, on or about August 3, 1994— more than three weeks after the Debtors’ bankruptcy filing — without the knowledge or consent of the Trustee. The record is unclear with respect to whether the actual foreclosure sale occurred on August 3, or whether the final conveyance transaction or closing was completed on that date. But this distinction has no bearing on this Court’s ultimate holding. After payment of liens and transaction costs, the Nebraska property conveyance resulted in net proceeds to the Debtors’ bankruptcy estate in the amount of $7,675.73. The Debtors’ attorney currently *631 holds the proceeds in escrow pending the resolution of this matter.

The initial meeting of creditors in the Debtors’ case was noticed to be held on August 19, 1994, with the actual meeting occurring on August 18, 1994. The Debtors refiled the same Homestead Deeds for Personal Property — this time in Henrico County — on August 19, 1994. In doing so, the Debtors attempted to maintain the same aggregate exemption of $9,000 related to the Nebraska Property.

By motion filed September 19, 1994, the Trustee objected to the exemption claimed by the Debtors relating to the Nebraska Property. The Trustee argues that the Debtors’ attempted exemption in a real property interest was not timely filed in the jurisdiction within which the property was located, thus defeating said exemption. The Debtors’ argue that the Homestead Deeds for Personal Property, filed by the Debtors in Henrico County on August 19, 1994, meet all statutory exemption filing requirements since their interest at the time of the homestead deed filing was one in personalty and not realty.

CONCLUSIONS OF LAW

By their briefed stipulations, the parties have narrowed the issues before the Court to a single question. On the day the Debtors filed their bankruptcy petition, the Debtors’ interest in the Nebraska Property was one in real property. On the day that the Debtors filed their homestead deeds in Chesterfield County, their interest was one in real property. But on the day the Debtors filed their homestead deeds in Henrico County, the county of their residence in Virginia, their interest in the proceeds of the Nebraska Property was one in personalty since the foreclosure sale had already taken place. The question thus formed is, in a Chapter 7 bankruptcy case, when should the estate property be characterized with respect to the determination and perfection of a debtor’s exemptions, on the date of petition filing, or on the date of exemption filing?

Bankruptcy petition filing creates an estate that consists primarily of all legal and equitable interests of the debtor in property as of the commencement of the case. 11 U.S.C. § 541 (West 1994). 1 The extent and limit of the Debtors’ bankruptcy estate is determined by the provisions of 11 U.S.C. § 541. 2 Thus, it is uncontested that whatever interest the Debtors maintained in the Nebraska Property became part of the bankruptcy estate as of July 18,1994 — the date of their Chapter 7 filing.

The bankruptcy estate, once formed, may be modified pursuant to the provisions of 11 U.S.C. § 522, 3 which permit debtors to ex *632 empt certain property interests from the bankruptcy estate. Section 522 outlines a federal exemption scheme, and also permits states to “opt out” of the federal scheme by creating state law exemptions. The Commonwealth of Virginia, through enactment of § 34-3.1 of the Code of Virginia, 4 has mandated the use of its own set of statutory exemptions in place of those provided by 11 U.S.C. § 522(d). Dominion Bank, N.A. v. Osborne, 165 B.R. 183, 185 (Bankr.W.D.Va.1994). As a result, the Virginia statutory exemptions apply to the Debtors’ bankruptcy estate.

The Homestead Exemption of Householders (the “Homestead Exemption”) permits Virginia debtors to selectively exempt real and personal property up to a specified value. Va.Code Ann. § 34-4 (Michie 1990). 5 Courts have read this statute to permit both husband and wife to take a $5,000 Homestead Exemption when both husband and wife are debtors in bankruptcy. Cheeseman v. Nachman, 656 F.2d 60, 64 (4th Cir.1981). Applying the statute, and based upon the existence of their minor child, the Debtors were eligible for a combined $11,000 Homestead Exemption in their Chapter 7 case.

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Cite This Page — Counsel Stack

Bluebook (online)
189 B.R. 629, 1995 Bankr. LEXIS 1802, 1995 WL 747096, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-heater-vaeb-1995.