In re Landsinger

490 B.R. 827, 68 Collier Bankr. Cas. 2d 377, 2012 WL 7656707, 2012 Bankr. LEXIS 3380
CourtUnited States Bankruptcy Court, W.D. Wisconsin
DecidedJuly 23, 2012
DocketNo. 11-13802
StatusPublished
Cited by1 cases

This text of 490 B.R. 827 (In re Landsinger) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Landsinger, 490 B.R. 827, 68 Collier Bankr. Cas. 2d 377, 2012 WL 7656707, 2012 Bankr. LEXIS 3380 (Wis. 2012).

Opinion

MEMORANDUM DECISION

ROBERT D. MARTIN, Bankruptcy Judge.

Roberta and Allen Landsinger (Roberta, Allen, together “the debtors”) filed a voluntary Chapter 7 petition on June 12, 2011. The trustee filed an objection to the debtors’ claim of exemptions under 11 U.S.C. § 522(d)(5). A final hearing was scheduled, but the parties asked to have the matter decided on their briefs and Proposed Findings of Fact.

The following facts are uncontested. The debtors married prior to 1998. On October 8, 1998, Roberta and her two brothers received, as tenants in common, an interest in real property (the rental property) from their father via Quit Claim Deed. The rental property is located at 110 Bluff Street in Cazenovia, Wisconsin, and is comprised of vacant land and a house. Roberta and her brothers rent this proper[829]*829ty for income; it is not the debtors’ homestead.

On October 3, 2008, the debtors executed a note in favor of the State Bank of Cazenovia in the amount of $82,000.00 (the Mortgage Note). The Mortgage Note is secured by a mortgage on the rental property (the Mortgage). Roberta and her brothers signed the Mortgage, but Allen did not. Payments on the Mortgage Note have been made from the debtors’ joint bank account, with money that is marital property.

On their amended schedules, the debtors value the rental property at $89,100.00. As of the petition date, the outstanding balance on the Mortgage Note was $29,359.00.1 The debtors each claimed an exemption in the rental property in the total amount of $17,122.00, on the apparent assumption that they had a combined one-third interest in its equity. The trustee objected, claiming that Roberta’s interest in this property constitutes individual property under Wisconsin law, and therefore, Allen cannot claim any exemption in it. The debtors argue that since the Mortgage Note payments have been paid with marital property and these payments cannot be traced, Allen has an interest in the rental property and can claim the exemption.

I will treat this matter as cross motions for summary judgment. Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The primary purpose of summary judgment is to avoid trial where there is no genuine issue of material fact in dispute. See Trautvetter v. Quick, 916 F.2d 1140, 1147 (7th Cir.1990).

The “wild card” exemption under 11 U.S.C. § 522(d)(5) allows a debtor to exempt her “aggregate interest in any property, not to exceed in value $1,150 plus up to $10,8252 of any unused amount of the exemption provided” in 11 U.S.C. § 522(d)(1) for the debtor’s residence. Joint debtors may “stack” or “double” the exemption, pursuant to 11 U.S.C. § 522(m). In re Czerneski, 330 B.R. 240, 242 (Bankr.E.D.Wis.2005).

State law controls questions regarding property interests in a bankruptcy estate. Id. at 242 (citing Dominick’s Finer Foods, Inc. v. Mason (In re Makula), 172 F.3d 493, 496 (7th Cir.1999)). For married debtors, Wisconsin law creates a presumption that all property of spouses is marital property, and each spouse has an undivided one-half interest in such property. Wis. Stat. § 766.31(2), (3); see also In re Czerneski, 330 B.R. at 242. However, during the marriage, property acquired by a spouse as a gift from a third party is that spouse’s individual property. Wis. Stat. § 766.31(7)(a).

Wisconsin courts ordinarily begin any classification discussion under the Wisconsin Marital Property Act with the statutory presumption that all spousal property is marital property. In re Estate of Kobylski, 178 Wis.2d 158, 172, 503 N.W.2d 369 (Ct.App.1993). However, when the parties’ arguments are based on a reclassification claim — a contention which necessarily [830]*830concedes on a threshold basis that the subject property is nonmarital property— the discussion may begin on that premise. Id. Since that is the case here, I begin on the premise that Roberta’s interest in the rental property was individual property when she received it from her father.

Under Wisconsin law, “mixing marital property with property other than marital property reclassifies the other property to marital property unless the component of the mixed property which is not marital property can be traced.” Wis. Stat. § 766.63(1). Mixing can also occur when there is an appreciation in value due to “substantial labor, effort, inventiveness, physical or intellectual skill, creativity or managerial activity.” Wis. Stat. § 766.63(2). The burden to establish mixing is properly assigned to the claimant that the property was mixed — in this case, the debtors. Kobylski, 178 Wis.2d at 173, 503 N.W.2d 369. After this initial burden is met, the burden of establishing tracing is on the party seeking to avoid reclassification as marital property. Id.; see also In re Estate of Bille, 198 Wis.2d 867, 876, 543 N.W.2d 568 (Ct.App.1995). The non-marital asset is reclassified as marital property “unless the component of the mixed property which is not marital property can be traced.” Id. (quoting Wis. Stat. § 766.63(1)). The stipulated facts do not suggest that Allen contributed substantial labor, effort, or other skills to the rental property; therefore, the sole issue is whether the Mortgage Note payments made with marital funds qualify as “mixing” under Wis. Stat. § 766.63(1).

Both parties rely on Wisconsin divorce cases when discussing whether the rental property was reclassified through mixing. However, as Judge Kelley has noted, such reliance is inappropriate. In re Czerneski 330 B.R. at 243-44.

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556 B.R. 401 (W.D. Wisconsin, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
490 B.R. 827, 68 Collier Bankr. Cas. 2d 377, 2012 WL 7656707, 2012 Bankr. LEXIS 3380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-landsinger-wiwb-2012.