In re Kern

576 B.R. 817
CourtUnited States Bankruptcy Court, W.D. Virginia
DecidedNovember 29, 2017
DocketCASE NO. 17-71159
StatusPublished
Cited by1 cases

This text of 576 B.R. 817 (In re Kern) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.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 Kern, 576 B.R. 817 (Va. 2017).

Opinion

MEMORANDUM OPINION

Paul M. Black, UNITED STATES BANKRUPTCY JUDGE

This matter comes before the Court on the objection filed by Christopher T. Mi-cale, Chapter 13 Trustee (the “Trustee”), to exemptions claimed by the Debtors, Cecil L. Kern and Wanda Faye Kern (the “Debtors”). An evidentiary hearing was held November 14, 2017. The matter was fully briefed and is ripe for decision. This case presents the unique set of circumstances where the Debtors have claimed Virginia exemptions, but live close to the Virginia-Tennessee state line. They have taken steps toward changing their residence across the line from Virginia to Tennessee, including buying a house in Tennessee, but just have not been able to physically move. The question the Court must address is whether buying a residence in another state with the intention to move—but not actually moving because they cannot do so until they sell their current residence—is enough to change one’s “domicile,” the critical factor in determining which exemptions a debtor may claim. In the circumstances of this case, the Court concludes it is not.

Factual Background

The facts in this case are largely uncontested. The Debtors filed a petition seeking relief under Chapter 13 of the Bankruptcy Code, 11 U.S.C. § 1301 et. seq., on August 28,2017. In their joint petition, the Debtors completed Statement 5, “Where you live,” as 180 Cloud High Road, in Duffield, Virginia (the “Virginia Property”). Duffield is in Scott County, Virginia, which borders on the Tennessee-Virginia state line. Docket Entry 1. In their schedules, the Debtors identified the Virginia Property as a single family residence. The Debtors’ schedules also reflect ownership of another single family residence, this one in Kingsport, Tennessee, about a 35 minute drive from the Virginia Property.

The Tennessee Property was acquired in 2010. Both Debtors, each of whom the Court finds to be a sincere and credible witness, testified that it is their intent to move to the Tennessee Property. They have taken steps toward that goal, such as by moving some of their personal property into it, including furniture and kitchen appliances. However, they cannot physically move until they sell the Virginia Property, which consists of a house and 56 acres of land. The maintenance and upkeep of the Virginia Property, and the desire to be located closer to available medical care, were driving factors in acquiring the Tennessee Property at the time. The Debtors testified they rarely stay in the Tennessee Property, although they did stay more frequently when they first bought it than they do now. They never moved their pets, which they regularly drove back to the Virginia Property to feed after they bought the Tennessee Property. In the last year, Mr. Kern testified the Debtors spent one night at the Tennessee Property. Although they visit the Tennessee Property periodically during the week (primarily by Mr. Kern) and pick up some mail there, the vast majority of their time is spent at the Virginia Property, which is their long time residence.

Mr. Kern is 66 years old and has lived in Virginia his entire life. He is a former trucker, who retired after suffering an accident, and he works as a pastor at a church in Virginia near the Virginia Property. He expects to continue working at and attending that church even after they move to Tennessee. The Debtors filed their 2016 and 2016 Federal tax returns with a Tennessee home address but voted in Virginia elections, with Mr. Kern voting in the most recent election as a Virginia resident. Mrs. Kern did not vote. Mr. Kern maintains a concealed carry permit in Virginia. The Debtors have Virginia driver’s licenses and their vehicles are registered in Virginia. They have bank accounts at the Eastman Credit Union branch in Duf-field, Virginia and at Powell Valley National Bank, each listing the Virginia Property as their address, but they also maintain accounts at HomeTrust Bank and Edward Jones Investments with the Tennessee Property listed as their address. See Trustee’s Exhibit D.

Mr. Kern has claimed as exempt an “annuitized personal injury settlement” in the amount of $850,000.00. See Debtors’ Schedules A/B, C. The exemption is claimed under Va. Code Ann. § 34-28.1.1 The Trustee claims that the full amount of the exemption available under Virginia law would not be not be available under Tennessee law, thus potentially available in part to creditors. The Debtors contend to the contrary, advising that Tenn. Code Ann, § 26-2-111 allows the Debtors to exempt not only “personal injury proceeds but also an annuity to replace lost income.” Debtors’ Brief, at p. 2. Alternatively, the Trustee claims that the federal exemptions may apply if the Debtors are not able to claim the Tennessee or Virginia exemptions.2 The Court need not answer this question, as the Court finds the Debtors to be domiciled in Virginia and that the Virginia exemption applies.

CONCLUSIONS OF LAW

This Court has jurisdiction of this matter by virtue of the provisions of 28 U.S.C. §§ 1334(a) and 157(a) and the delegation made to this Court by Order from the District Court on July 24, 1984 and Rule 3 of the Local Rules of the United States District Court for the Western District of Virginia. This Court further concludes that this matter is a “core” bankruptcy proceeding within the meaning of 28 U.S.C. § 157(b)(2)(B). Venue is appropriate in this Court pursuant to 28 U.S.C. § 1408,3

Prior to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), Section 522(b)(2) of the Bankruptcy Code provided that where property is exempt under state law, the applicable state or local law is that “place in which the debtor’s domicile has been located for the 180 days immediately preceding the date of the filing of the petition, or for a longer portion of such 180-day period than in any other place .... ” 11 U.S.C. § 522(b)(2)(A). In an apparent attempt to discourage debtors from moving to states with more generous exemption rights and with a view toward filing bankruptcy, BAPCPA extended the period for determining the debtor’s domicile from 180 days to 730 days. See 11 U.S.C. § 522(b)(3)(A); 4 Collier on Bankruptcy, ¶ 522.06 (Alan N. Resnick & Henry J. Sommer eds., 16th ed.).

As Judge Bostetter stated in In re Koons, 225 B.R. 121 (Bankr. E.D. Va. 1998), “the issue of domicile is a fact-based analysis that is not disposed of by one element but rather depends on a variety of factors that when reviewed as a whole, evidence an intent to be domiciled in a state.” Id. at 123; See also Gambelli v. United States, 904 F.Supp. 494, 497 (E.D. Va. 1995), aff'd, 87 F.3d 1308 (4th Cir. 1996).

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Bluebook (online)
576 B.R. 817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kern-vawb-2017.