In re Lehr

479 B.R. 90, 2012 Bankr. LEXIS 4206, 2012 WL 3763925
CourtUnited States Bankruptcy Court, N.D. California
DecidedAugust 28, 2012
DocketNo. BR 12-30344DM
StatusPublished
Cited by5 cases

This text of 479 B.R. 90 (In re Lehr) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Lehr, 479 B.R. 90, 2012 Bankr. LEXIS 4206, 2012 WL 3763925 (Cal. 2012).

Opinion

MEMORANDUM DECISION ON OBJECTION TO CONFIRMATION, OBJECTION TO CLAIM OF EXEMPTION AND MOTION TO DISMISS

DENNIS MONTALI, Bankruptcy Judge.

I. Introduction

On August 6 and 7, 2012, the court conducted a trial in this Chapter 13 case. The debtor Lore Lehr (“Lehr”) appeared and was represented by Cheryl C. Rouse, Esq. and Gary R. Brenner, Esq., two of her attorneys; creditor Ron Galatolo (“Ga-latolo”) appeared and was represented by Brian Irion, Esq., his attorney.

[93]*93For the reasons discussed below, the court will sustain Galatolo’s objection to Lehr’s claim of a homestead exemption and grant Galatolo’s motion to dismiss this Chapter 13 case with prejudice.

II. Procedural Background

Lehr filed her Chapter 13 case on February 2, 2012, and filed her original Chapter 13 Plan on the same day. She then amended her Schedules B and C on February 16, 2012 (Docket No. 12). Galatolo filed an objection to confirmation of Lehr’s original Plan on March 14, 2012 (Docket No. 16), putting at issue Lehr’s lack of good faith in filing her Chapter 13 petition. Lehr amended her Chapter 13 Plan on March 21, 2012 (Docket No. 19).

On March 29, 2012, Galatolo filed a combined Objection To Confirmation of First Amended Chapter 13 Plan and a Motion To Dismiss With Prejudice (Docket No. 25). In the motion he accused Lehr of concealing significant and material assets including a 2004 Porsche Cayenne S (the “Porsche”) which he valued at between $23,000 and $25,000 (conceding a maximum exemption of $2,725 under applicable California law); jewelry and artwork he estimated to be worth between $18,000 and $20,000, subject to a maximum exemption of $7,175 under applicable California law; a Maui timeshare estimated to be worth $23,000 and listed by Lehr in her amended Schedule B with a value of $10,000; a lease security deposit of $2,100 Lehr did not disclose in her schedules; and a self-settled trust established in 2010 and to which Lehr transferred her home in 2011, but Lehr did not disclose in her Statement of Financial Affairs.

Galatolo also filed an objection to Lehr’s claim of exemption on March 29, 2012 (Docket No. 30). In that objection he contended that Lehr was not living in her claimed residence when she recorded a declaration of homestead or later when she filed her Chapter 13 petition.

On April 27, 2012, the court held a pretrial hearing and set trial on all of Galato-lo’s matters for August 6 and 7. Then on May 18, Lehr filed denials of Galatolo’s substantive allegations. Finally, on June 14, Lehr amended her Statement of Financial Affairs and included for the first time information about the Porsche (Docket No. 42).

III. Facts1

A. The Patricia Avenue Residence

On March 19, 2010, Lehr sold the Pavo Lane, Foster City property that she and Galatolo had formerly occupied during their marriage. Lehr received just over $213,000 from the sale (Exhibit N). Not long after that she rented a home on Sequoia Avenue (“Sequoia”) in Burlingame. Then on December 3, 2010, she purchased a residence on Patricia Avenue (“Patricia”) in San Mateo. A few days later on December 13, 2010, Lehr recorded a Homestead Declaration in San Mateo County (Exhibit 17). In that declaration she claimed Patricia as a declared homestead, reciting, in part, “the above-declared homestead is my principal dwelling. I am currently residing on that declared homestead.”

Just prior to the close of escrow on Patricia, Galatolo obtained a judgment against Lehr in the amount of $182,990. An abstract of that judgment was recorded in San Mateo County on October 20, 2011 (Exhibit J).

[94]*94Despite the fact that Lehr claimed Patricia as her homestead and stated that she resided there, the preponderance of the evidence rebuts that representation. When escrow closed on Patricia, Lehr moved some furniture from Sequoia or from some storage units and changed her address of record on her California drivers license. She also opened accounts with various utilities and used that address for some bank statements, doctors bills, etc. She discovered or, more likely knew prior to the close of escrow, that Patricia had serious physical problems including termite infestation, flooding in the sink caused by a clothes washer, wiring problems and other conditions reflected in inspection and termite reports (Exhibits X and AA).

While Lehr started various corrective measures at Patricia, including fence repair, tree removal, termite work, installation of cabinetry and other furnishings and fixtures, she continued to reside at Sequoia. While there was testimony by a neighbor that Lehr had left in late 2010, returning occasionally, three particular pieces of evidence strongly corroborate the court’s finding that she still resided at Sequoia and not Patricia until after bankruptcy:

(1) The utility bills at Patricia (and in particular the PG & E billing records (Exhibit 4-1)) show very modest monthly bills for that location compared to PG & E billing records for Sequoia (Exhibit EE) for the same time period.

(2) Following Lehr’s examination under Rule 20042 on March 14, 2012, she had an opportunity on April 12, 2012, to prepare an errata sheet clarifying her sworn testimony. That sheet presumably was prepared by Lehr on her own and not under the pressure of a deposition or oral examination by opposing counsel. Correcting p. 17 at 1. 1 of the transcript of her examination, Lehr wrote “Clarification of residence” and stated:

In December 2010 I purchased [Patricia]. I spoke with my landlord about giving notice and not renewing my lease. At this time it was [sic] intent to move into Patricia and I started moving'my belongings to Patricia. I filed my Homestead on December 13, changed my mailing address and license. The Patricia home was short sale ‘as-is’ property and although there were many issues noted on the home inspections, not all the issues had been disclosed at the time of purchase and there were numerous repairs needed on the house. Because of the unsafe conditions at [Patricia], i.e., plumbing causing major backups (unsanitary conditions) and flooding, faulty water heater installation causing carbon monoxide issue, water leaks on electrical panel in the garage, leaking roof, (multiple locations), electrical issues regarding lines to the house, mold, termites, and others, I decided to stay longer at [Sequoia] so I could rectify all of the safety issues. Additionally, my son PJ was in/out of both residences with me and assisting me to help get the home in working order. One of the delays in my move, was lack of funds to complete work on [Patricia], although it was slowly coming together and I was staying there more. In December of 2011, I went in person to my landlord’s home and brought a bottle of wine. I told them that I would be giving notice and moving out at the end of March. They knew the story of my home in San Mateo and that I was trying to pay both [95]*95the mortgage and rent on both properties with the assistance of my son. (Errata to Transcript of 2004 Examination; Emphasis Added).

(3) Amazingly, Lehr continued to pay all of the Sequoia utilities after her bankruptcy petition and up until the time she left there.

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Bluebook (online)
479 B.R. 90, 2012 Bankr. LEXIS 4206, 2012 WL 3763925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-lehr-canb-2012.