In re Key

465 B.R. 709, 2012 WL 315446, 2012 Bankr. LEXIS 408
CourtUnited States Bankruptcy Court, S.D. Georgia
DecidedFebruary 2, 2012
DocketNo. 09-10934
StatusPublished
Cited by20 cases

This text of 465 B.R. 709 (In re Key) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Key, 465 B.R. 709, 2012 WL 315446, 2012 Bankr. LEXIS 408 (Ga. 2012).

Opinion

ORDER

SUSAN D. BARRETT, Chief Judge.

Before the Court is a Motion to Incur Debt filed by Ronald F. Key, Jr. and Leah Henneman Key (collectively, the “Debtors”, with Ronald F. Key, Jr. referred to as “Key”). The issues in this case are: 1) whether four pieces of real estate inherited by Key from his mother more than 180 days after the Debtors filed their chapter [710]*71013 petition are property of the bankruptcy estate; and 2) whether Debtors’ motion for Key to incur debt should be approved. This Court has jurisdiction over this matter under 28 U.S.C. § 1334(b) and this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) and (D). For the following reasons, I find the properties are not property of the estate and deny Debtors’ motion to incur debt.

FINDINGS OF FACT

Key inherited four properties from his mother more than 180 days after he filed his chapter 13 bankruptcy petition. One of the properties (“Hammond Avenue”) is valued at $39,294.00 according to the taxing authorities. At the time of his mother’s death this property was encumbered by a balloon loan with First Bank of Georgia that matured November 2011. This property is scheduled to be foreclosed upon in five days and is the subject of the Motion to Incur Debt.

Debtors filed a joint motion for Key to be allowed to incur debt and they amended their Schedules A, I and J to disclose the properties and evidence Debtors’ purported ability to pay the loan and fund their chapter 13 plan. The motion to incur debt requests approval for Key to incur debt not to exceed $21,445.77 with monthly payments of no more than $338.28 for 35 months at 7.5% interest. Upon approval of the motion, Debtors plan to put in the necessary sweat equity to attempt to make the property habitable in order to rent the property.

At the hearing, Key testified even if he does the work himself, the repairs to Hammond Avenue will cost at least $10,000.00 and take about a year to complete. He also testified that all four properties need major repairs. Some of the properties may even need to be demolished. In addition to the Hammond Avenue property, one of the other properties is encumbered by a loan with another lender.

Key provided candid testimony as to the properties’ disrepair. Notwithstanding the tax valuations of approximately $154,000.00, Key said a realtor recently valued the Hammond Avenue property along with the two adjoining tracts at approximately $22,000.00. The other property is fully encumbered by a loan to a third party. Key thinks the combined value of all four properties is less than the debt owed.

CONCLUSIONS OF LAW

Property of the bankruptcy estate is defined in 11 U.S.C. § 541(a)(5) as follows:

(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:
(5) Any interest in property that would have been property of the estate if such interest had been an interest of the debtor on the date of the filing of the petition, and that the debtor acquires or becomes entitled to acquire within 180 days after such date—
(A) by bequest, devise, or inheritance;
(B) as a result of a property settlement agreement with the debtor’s spouse, or of an interlocutory or final divorce decree; or
(C) as a beneficiary of a life insurance policy or of a death benefit plan.

11 U.S.C. § 541(a)(5).

Furthermore, in a chapter 13 bankruptcy, § 1306 of the Bankruptcy Code provides in pertinent part:

(a) Property of the estate includes, in addition to the property specified in section 541 of this title—
(1) all property of the kind specified in such section that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or [711]*711converted to a case under chapter 7, 11, or 12 of this title, whichever occurs first....

11 U.S.C. § 1306.

The Chapter 13 Trustee (“Trustee”) notes in the context of a chapter 13 bankruptcy, “property of the estate is expanded and includes in addition to the property specified in section 541 of this title ... all property of the kind specified in such section that the debtor acquires after the commencement of the case, but before the case is closed, dismissed, or converted.... ” 11 U.S.C. § 1306(a)(1). The Trustee argues § 1306(a)(1) results in the chapter 13 bankruptcy estate including these post-petition inheritances regardless of when Key became entitled to receive the bequest, devise or inheritance. I disagree. The Trustee’s interpretation overlooks the express time limitation set forth in § 541(a)(5) and the portions of § 1306(a)(1) that provide that the estate includes the property specified in § 541 and all property “of the kind specified in such section” that the debtor acquires after the commencement of the chapter 13. Id.

Section 541(a)(5) expressly excludes inheritances that a debtor becomes entitled to receive more than 180 days after the petition date. I find the general language of § 1306(a)(1) does not pull property expressly excluded by § 541(a)(5) into the property of the estate. “It is fair to conclude that if the provisions of Section 541 apply to define property of the estate the exclusions also apply as set forth in Section 541(a)(5).” In re Schlottman, 319 B.R. 23, 25 (Bankr.M.D.Fla.2004) (interpreting § 1306(a)(1) and § 541(a)(5)(C) and holding proceeds from a life insurance policy are not property of the chapter 13 estate where debtor became entitled to acquire such proceeds more than 180 days after the petition date).

In an analogous case involving § 1306 and the exclusions of § 541(b), the bankruptcy court noted:

Not only does this Court find no textual basis to hold that § 1306 does not incorporate on a prospective basis the exclusions provided by § 541(b), this Court finds this reading to be at odds with the nature of chapter 13 cases. Unlike cases commenced under chapters 7 and 11, the petition date in chapter 13 proceedings is not determinative of the scope of a chapter 13 estate. Section 1306(a)(1) incorporates into a chapter 13 estate ‘all property of the kind specified in [§ 541] that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or convert-ed_’ll U.S.C. § 1306(a)(1) (emphasis added). This language makes clear that property of the type specified by § 541 that is acquired post-petition by a chapter 13 debtor ... becomes part of that debtor’s chapter 13 estate....

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Cite This Page — Counsel Stack

Bluebook (online)
465 B.R. 709, 2012 WL 315446, 2012 Bankr. LEXIS 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-key-gasb-2012.