In re Kennedy

552 B.R. 183, 2016 Bankr. LEXIS 2199, 2016 WL 3226244
CourtUnited States Bankruptcy Court, E.D. Tennessee
DecidedJune 2, 2016
DocketCase No. 3:12-bk-33588-SHB
StatusPublished
Cited by3 cases

This text of 552 B.R. 183 (In re Kennedy) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Kennedy, 552 B.R. 183, 2016 Bankr. LEXIS 2199, 2016 WL 3226244 (Tenn. 2016).

Opinion

MEMORANDUM ON TRUSTEE’S NOTICE OF INTENT TO SELL ANNUITY AND OBJECTION TO AMENDED EXEMPTIONS

SUZANNE H. BAUKNIGHT, UNITED STATES BANKRUPTCY JUDGE

Before the Court are the following contested matters: (1) the Trustee’s Notice of Intent to Sell (Sale Notice) filed by John P. Newton, Jr., Chapter 7 Trustee (Trustee) on September 9, 2015, seeking to sell a portion of the future payments on a Genworth Financial Annuity Contract; (2) the Objection to the Trustee’s Intent to Sell filed by Debtor on September 29, 2015, as amended October 31, 2015; and (3) the Trustee’s Objection to Amended Exemptions1 filed on November 2, 2015, as amended February 23, 2016. At an [186]*186evidentiary hearing held on March 21, 2016, the Court accepted into the record2 stipulations of undisputed facts submitted by the parties on March 11,2016; fourteen exhibits introduced into evidence; and the testimony of the Trustee, Debtor, and Jody Kennedy. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) and (0).

The parties identified eight issues in their Joint Statement filed on March 11, 2016; however, as stated on the record prior to the evidentiary hearing, the issues, as the Court sees them, are as follows:

(1) Whether Debtor is entitled to exempt any additional future annuity payments in excess of the $8,340.00 already allowed exempt under Tennessee Code Annotated § 26-2-103;
(2) If so, what statutory provisions apply to the future payments and in what amounts; and
(3) If Debtor cannot exempt additional future payments of the annuity after the $8,340.00 claimed as exempt, can the Trustee sell the future payments.3

I. RELEVANT FACTS

This bankruptcy case was filed on September 5, 2012, and the Trustee was appointed. In her original Schedule B, Debtor listed an ownership interest in a “Genworth Financial Annuity Contract #016207884A, Owner: Insurance Company of North America (no cash surrender value) payments to resume July 2020 (life-contingent)” (the Annuity). [Doc. 1.] Debtor valued at the Annuity at $0.00. [Id.] She claimed the Annuity as exempt under Tennessee Code Annotated § 26-2-103, with a claimed exemption value of $7,725.00 and a current value of $0.00. [M] Before her discharge, Debtor filed an amended Schedule C on October 25, 2012, changing the claimed exemption value of the Annuity to $8,340.00 and changed the current value to “[u]nknown.” [Doc. 19.] No party in interest, including the Trustee, objected to Debtor’s original or first amended Schedule C.

The parties have stipulated that Debtor is the annuitant and has the right to receive payments under the Annuity from Genworth Financial. Additionally, before filing her petition, Debtor sold or assigned her payments under the Annuity to July 18, 2020.

On September 9, 2015, the Trustee filed the Sale Notice, stating that he had received an offer from DRB Capital LLC (DRB Capital)4 to purchase for $6,108.73 a portion of the future payments under the Annuity as follows:

Insurance Company of North America annuity contract # 016207884A consisting of 1.) 22 payments of $500.00 a month beginning December 18, 2021 and [187]*1872.) 79 payments of $900.00 a month beginning October 18, 2023. All amounts are contingent upon the life of the Debt- or, Willa D. Kennedy; payments will end upon her death.

[Doc. 36.] The Sale Notice expressly reserved Debtor’s $8,340.00 exemption by excluding from the proposed , sale the first seventeen payments of $500.00 each (totaling $8,500.00) as they are scheduled to be paid beginning July 18, 2020, and continuing through November 18, 2021. [Id.]

Debtor filed her objection to the Sale Notice on September 29, 2015, arguing that she claimed an exemption in the entire Annuity, which was part of a structured settlement in the death of her husband and that she should not be forced to wait five years to begin receiving distributions and has the right to receive the $8,340.00 claimed exemption amount before the Trustee’s fees and creditors are paid. Debtor thereafter filed an amended Schedule B, changing the value of the Annuity to $14,448.735 and changing the description of the property to the following:

Genworth Financial, Annuity Contract #016207884A, Owner: Insurance Company of North America (no cash surrender value) payments of $500.00 a month beginning 7/18/2020 until 9/18/2028; Paymens [sic] ot [sic] $900.00 a month beginning 10/18/2028 and ending 12/18/2017 [sic] (life-contingent). This annuity is result of compensation paid to the debtor who was dependent on her husband, for the death of her husband and for the debtor’s injury when the pickup truck they were riding in was struck by a commercial truck in La-Port, Indiana. The annuity was for the wrongful death for debtor’s husband as weel [sic] as personal injuries that she suffered. The annuity is based on the life of debtor who was bom on Dec. 10, 194-5.

[Doc. 43.6] With her amended Schedule B, Debtor also filed a second amended Schedule C to add additional exemptions under Tennessee law. In addition to the original exemption under Tennessee Code Annotated § 26-2-103 for $8,340.00, Debtor added exemptions under § 26-2-lll(2)(C) (for $10,000.00), -(2)(B) (for a total of $15,-000.007), and -(3) (for $100,000.00). [Id.]

The Trustee timely filed an objection to Debtor’s second amended Schedule C (Objection to Amended Exemptions), arguing that the additional exemptions and additional statutory bases claimed do not apply to the Annuity and were not raised in the earlier amendment to Schedule C. [Doe. 46.] The Trustee, however, did not object to the $8,340.00 exemption that had previously been claimed under Tennessee Code Annotated § 26-2-103.

After the Court scheduled an evidentia-ry hearing on the Sale Notice with Debt- or’s objection and the Objection to Amended Exemptions, Debtor again amended her Schedules B (second amended) and C (third amended) to once more revise the property description by omitting some words and adding others with the following result:

[188]*188Annuity Contract # 016207884A, Owner: Insurance Company of North America serviced by Genworth Financial described as $500 payable monthly to Willa Kennedy on the 18th of each month beginning about Sept. 18, 2023, until the payments increase to $900.00 monthly on or about October 18, 2023. The payments will continue until her death. The annuity is the result of compensation paid to the debtor who was dependent on her husband, for the death of her husband. The debtor’s husband was killed instantly when a pickup truck he and the debtor were in was struck by a commercial tructk [sic] in LaPorte, Indiana. The annuity was for the wrongful death of debtor’s husband. The annuity is based on life of debtor who was bom on December 10,1945. A small portion of the annuity was for minor injuries suffered by the debtor.

[Doc. 54.8].

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

Related

Jeannine Ann Crawford
E.D. Tennessee, 2025
Michael J. Spak
D. New Jersey, 2021
In re Roos
590 B.R. 803 (E.D. Tennessee, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
552 B.R. 183, 2016 Bankr. LEXIS 2199, 2016 WL 3226244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kennedy-tneb-2016.