In re Holt

589 B.R. 644
CourtUnited States Bankruptcy Court, S.D. Indiana
DecidedAugust 13, 2018
DocketCASE NO. 17-2447-RLM-7A
StatusPublished
Cited by1 cases

This text of 589 B.R. 644 (In re Holt) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Holt, 589 B.R. 644 (Ind. 2018).

Opinion

Robyn L. Moberly, United States Bankruptcy Judge

The debtors ("Brent" and "Heather" or "the debtors") filed this chapter 7 case on April 6, 2017 as a joint case. The debtors' residence is located at 3421 Bay Road North Drive, Indianapolis, Indiana ("Bay Road property" or "property"). Brent owns this property in fee simple. Heather *646owns property in fee simple located at 18821 Orleans Court, Noblesville, Indiana. The Orleans Court property was not at issue in the present matter.

Schedules A and D assign the Bay Road property a fair market value of $215,000.00. It was purchased in 2013 for $256,833 from Brent's mother's estate, according to the schedules. Schedule D shows that Seterus has a mortgage of $208,697.90. Brent claimed a homestead exemption of $6302.10 but later amended it to claim the full exemption of $19,600.

The 341 meeting was scheduled for May 16, 2017. Tom Krudy ("Krudy" or "the trustee"), the chapter 7 trustee, issued a notice of possible assets on July 18, 2017, naming only the equity in the Bay Road property and funds on deposit as assets. Krudy conducted a Rule 2004 exam of the debtors on August 18, 2017 at the Bay Road property and the debtors were ordered to produce mortgage documentation seven (7) days before the Rule 2004 exam. The documentation requested included recent appraisals and tax assessments. The debtors filed a couple of motions to defer the discharge, in order to file reaffirmation agreements. Brent and Seterus filed a reaffirmation agreement on November 22, 2017 that provided that the balance of the mortgage as of the petition date was $202,029. The amount being reaffirmed was slightly more than that, $202,154. Heather also filed a reaffirmation agreement with BMO Harris as to her Orleans Court property.

Krudy filed his motion for turnover on January 5, 2018, asking only for the equity in the Bay Road property. The debtors objected on the basis that they believe that the trustee overstated the value of the Bay Road property and that there was not sufficient non-exempt equity in it to create an estate asset. Hearing on the trustee's motion and the debtors' objection was scheduled for February 15, 2018, but continued several times, with the final continued hearing date set for July 12, 2018. The debtors filed their motion to convert to chapter 13 on July 10, 2018, prior to the scheduled hearing on the trustee's turnover motion. The trustee filed his objection to the debtors' motion to convert on July 11, 2018 and this matter was heard by the Court on July 26, 2018.

THE MOTION TO CONVERT

The trustee contends there is no absolute right to convert to a chapter 13 and the conversion was filed in bad faith because the Bay Road property is worth $570,000. The trustee attached both the debtors' "market analysis" and the trustee's appraisal to his objection.

At the evidentiary hearing, it was established the Bay Road property is located in the Nantucket Bay community. It is located on a prestigious lake and this lakefront location is a premium for the area. It is a 34-year old, 2700 square foot single family home with 2 bedrooms, 2-1/2 baths, a 2-car garage, walkout basement and 2 fireplaces. The house has not been well-maintained. It shares a common wall with its neighbor as many, but not all, of the other houses in this neighborhood do.

The debtors' market analysis states on its face that it was conducted on May 16, 2014, almost 3 years before this bankruptcy was filed. Heather testified this is an error and it was completed in 2015. There was no explanation of why the market analysis was done two or three years before the bankruptcy filing, nor an opportunity to verify her statement as to a hearsay document. Fife Real Estate and Auction Service conducted the market analysis and the stated opinion of the market value of the property was determined to be $215,000 using the comparative sales approach. Mr. Fife did not testify but Heather stated he inspected the *647house. It is unexplained if he inspected the house why he only provided exterior photos. He declared the residence to be in "fair" condition. The net assessed value of the property in 2013 was $234,565 and had trended up for 2011, 2012 and 2013, according to the tax report. Heather testified the property has continued to trend upward on Zillow, an online home value site. Little weight can be attached to the county tax assessment since there was no explanation of how the gross value of $405,600 was determined and what caused the reduction to $234,565, nor how that relates to the actual market value of the real estate on the date of filing of the petition. All of the Fife comparables are located in another neighborhood entirely (Lakes at the Crossing), which is substantially less attractive to buyers. There were no "adjustments" shown from the comparables to the Bay Road property and all three comparables were sales that closed five to six years before this bankruptcy was filed. It should be noted that the market analysis was not an appraisal, it was stale, and its "comparables" were not relevant in time, location, nor lot characteristics. These factors are obvious upon even a cursory review of the market analysis.

The Trustee's appraisal was conducted at a later date but was performed and reported as of April 10, 2017 (4 days after this bankruptcy case was filed) by Integra Realty Resources. The purpose of the appraisal was to "develop an opinion of the market value of the fee simple interest in the property as of the effective date of the appraisal." The fair market value was determined to be $570,000 using a detailed comparative sales approach. Integra's appraiser, Mr. Lady, inspected both the interior and the exterior of the property and provided multiple photographs of the exterior and of all rooms of the house. It noted that the estimated cost to repair the wood deck and enclosed porch was $13,500 and that the estimated cost to replace the windows was $19,000. Both of these estimates were considered in the valuation process.

Lady used three comparable sales to arrive at the fair market value. All of the three comparable sales are on the same road as the property, but the directional assignment in the street names reflects whether one turns right or left coming into the housing development. All three comparable sales were in the same community, were located on lakefront property, and were located within .34 miles or less from the property. All three sales closed between June 2016 and August 2017. The one comparable (3313 Bay Road North Drive) is located within several houses of the subject property and shares a common wall with its neighbor. The appraiser noted that its condition was superior to the subject property with a better view, among other downward adjustments, resulting in a reduction from the sales price of $650,000 (slightly more than asking price) to $572,500. The two other comparables were less than a third of a mile away, and both are unattached single family dwellings, unlike the subject property. They both have more bedrooms and bathrooms and are of average (3714 Bay Road South Drive) to superior (3264 Bay Road South Drive) condition. Downward adjustments were made on both properties: 3714 Bay Road South Drive sold for $599,000, adjusted downward to $571,000 and 3264 Bay Road South Drive sold for $720,000, adjusted downward to $557,000. The average of these adjusted values was further adjusted by a 3% time adjustment, differences in porches and patio areas, bathrooms, and overall amenities to arrive at the $570,000 value.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
589 B.R. 644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-holt-insb-2018.