In Re Hickman

157 B.R. 336, 1993 Bankr. LEXIS 1154, 1993 WL 311338
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedApril 6, 1993
Docket19-60398
StatusPublished
Cited by4 cases

This text of 157 B.R. 336 (In Re Hickman) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Hickman, 157 B.R. 336, 1993 Bankr. LEXIS 1154, 1993 WL 311338 (Ohio 1993).

Opinion

MEMORANDUM OPINION AND ORDER

RICHARD L. SPEER, Bankruptcy Judge.

This cause comes before the Court upon Trustee’s Response to Debtor’s Claim of Exemptions Pursuant to 11 U.S.C. § 522(b)(2)(B). A Hearing was held on December 21, 1992. At the Hearing, the parties were afforded the opportunity to present evidence and arguments they wished the court to consider in reaching its decision. The Court has reviewed the arguments of counsel, exhibits, relevant statutory and case law, as well as the entire record. Based on that review, and for the following reasons, the Court finds that the Debtor’s property situated in Indiana is exempted from the Bankruptcy estate pursuant to 11 U.S.C. § 522(b)(2)(B).

FACTS

On April 30, 1992, Debtor filed a joint petition for bankruptcy with his wife, He-lyn M. Hickman. On Debtors’ Schedule C listing exempt property, Debtors listed real estate located in Lebanon, Indiana. The value of the exemption and the market value were listed as Ten Thousand Dollars ($10,000.00) each. There was no statute provided on which the exemption was claimed. The other exemptions listed on Debtors’ Schedule C all cited Ohio Revised Code § 2329.66(A), various sub-sections, as justification. On August 10, 1992, Trustee filed a Complaint to Deny/Revoke Discharge of Thomas Hickman which caused the case to be split. There was no objection to the discharge of Helyn M. Hickman and thus, she was discharged on September 14, 1992. On September 18, 1992, Debtor and his wife filed an amendment to Schedule C adding a 1988 Ford Tempo as exempt but still leaving blank the statutory basis of the real estate exemption. Ten days later the Trustee, John J. Hunter, filed an Objection to Amended Exemptions challenging debtors lack of a code section to explain the foundation of the exemption. There were other objections cited also which are not relevant to this inquiry. On October 30, 1992, Debtor filed a Response claiming the exemption of the real estate under 11 U.S.C. § 522(b)(2)(B). On November 13, 1992, Trustee filed a Response to Debtor’s Claim of Exemptions Pursuant to 11 U.S.C. § 522(b)(2)(B).

LAW

This case is a core proceeding to be heard and decided by the Federal Bankruptcy Court pursuant to 28 U.S.C. § 157(b)(1).

All of the property of the debtor initially comes into the debtor’s bankruptcy estate pursuant to 11 U.S.C. § 541 which reads in relevant part:

§ 541. Property of the estate.
(a) The commencement of a case under section 301, 302, or 303 of this title creates an estate. Such estate is comprised of all the following property, wherever located and by whomever held:
(1) ... all legal or equitable interests of the debtor in property as of the commencement of the case.

Debtors may then claim exemptions of certain property pursuant to 11 U.S.C. § 522 which reads in relevant part:

§ 522. Exemptions.
(b) Notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate the property listed in either paragraph (1) or, in the alternative, paragraph (2) of this subsection. Such property is—
(1) property that is specified under subsection (d) of this section, unless the State law that is applicable to the debtor under paragraph (2)(A) of this subsection specifically does not so authorize; or, in the alternative,
(2)(A) 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 the filing of the petition at the place in which the *338 debtor’s domicile has been located for the 180 days immediately preceding the date of the filing of the petition, or for a longer period of such 180-day period than in any other place; and
(B) any interest in property in which the debtor had, immediately before the commencement of the case, an interest as a tenant by the entirety or joint tenant to the extent that such interest as a tenant by the entirety or joint tenant is exempt from process under applicable nonbankruptcy law.
(1) The debtor shall file a list of property that the debtor claims as exempt under subsection (b) of this section. If the debtor does not file such a list, a dependent of the debtor may file such a list, or may claim property as exempt from property of the estate on behalf of the debtor. Unless a party in interest objects, the property claimed as exempt on such list is exempt.
(Emphasis added.)

Creditors and the trustee are then allowed time to object to the debtor's claimed exemptions.

Rule 4003. Exemptions.
(b) Objections to Claims of Exemptions. The trustee or any creditor may file objections to the list of property claimed as exempt within 30 days after the conclusion of the meeting of creditors held pursuant to Rule 2003(a) or the filing of any amendment to the list or supplemental schedules unless, within such period, further time is granted by the court. Copies of the objections shall be delivered or mailed to the trustee and to the person filing the list and the attorney for such person.

DISCUSSION

The Debtor claims that the Trustee waived his right to object to the exemption by not filing his objection within the allotted 30 days. The Trustee asserts that the 30 days tolled from the time of the filing of the amendment on September 18, 1992, thus, his objection filed on September 28, 1992 was timely. Through the years, courts have been split on the interpretation of Rule 4003. Some courts have interpreted it very narrowly. The Rule does not provide any exceptions to the 30 day requirement aside from obtaining an extension from the court. Taylor v. Freeland & Kronz, 938 F.2d 420 (3rd Cir.1991), aff'd — U.S. -, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992) (“Our task is ‘to interpret the rules neither liberally nor stingily, but only, as best we can, according to their apparent intent.’ ”) (quoting Torres v. Oakland, 487 U.S. 312, 319, 108 S.Ct. 2405, 2410, 101 L.Ed.2d 285 (1988) (Scalia, J., concurring)); In re Grossman, 80 B.R. 311 (Bankr.E.D.Pa.1987).

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Cite This Page — Counsel Stack

Bluebook (online)
157 B.R. 336, 1993 Bankr. LEXIS 1154, 1993 WL 311338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hickman-ohnb-1993.