In re Mead

489 B.R. 363, 2013 WL 1276512, 2013 Bankr. LEXIS 1265
CourtUnited States Bankruptcy Court, D. Vermont
DecidedMarch 29, 2013
DocketNo. 12-10415
StatusPublished
Cited by6 cases

This text of 489 B.R. 363 (In re Mead) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Mead, 489 B.R. 363, 2013 WL 1276512, 2013 Bankr. LEXIS 1265 (Vt. 2013).

Opinion

MEMORANDUM OF DECISION

Granting Debtor’s Motion to Avoid Lien; Overruling Creditor’s Objection to Motion, and Overruling Creditor’s and Chapter 7 Trustee’s Objection to Debtor’s Claim of Homestead Exemption

COLLEEN A. BROWN, Bankruptcy Judge.

The Debtor seeks to avoid the lien of Axelrod & Adler, PLLC (the “Creditor”) on real property he claims as his homestead. The Creditor and the Chapter 7 trustee (the “Trustee”) assert that the Debtor is not entitled to claim a homestead exemption in this property, and the Creditor contends that since this property may not be exempt as a homestead, the Debtor is precluded from avoiding the Creditor’s lien on it. For the reasons set forth below, the Court finds that the Creditor and Trustee have failed to meet their burden of proof and, based upon the record before it, the Debtor may claim this property exempt as his homestead. Accordingly, the Court grants the Debtor’s motion, overrules the Creditor’s objection to that motion, and overrules the objection to the Debtor’s claim of homestead exemption.

Jurisdiction

This Court has jurisdiction over these contested matters pursuant to 28 U.S.C. §§ 157 and 1334, and declares them to be core proceedings under 28 U.S.C. § 157(b)(2)(B) and (K).

Procedural History

The Debtor filed this Chapter 7 case on May 10, 2012. On June 13, 2012, the Debtor filed a motion to avoid the Creditor’s lien on the ground that the lien impaired his homestead exemption, pursuant to 11 U.S.C. § 522(f) (doc. # 10) (the “Motion”). The Motion alleges that the Debt- or owns real property located at 4410 Pine Hill Road in Newport, Vermont (the “Property”); he claimed the Property exempt as his homestead; the Property has a fair market value of $121,700 (based upon the Town of Coventry 2011 tax appraisal), in which he has an undivided half interest worth $60,850; the balance due on the mortgage against the Property is approximately $35,900; and the Creditor’s judicial lien, with a balance due of approximately $100,800, therefore impairs his homestead exemption.

[367]*367The Creditor filed an opposition to the Motion asserting that the Debtor could not claim a homestead exemption in the Property because it was not his primary residence and because he intended to convey his interest in the Property after completion of his bankruptcy case. Subsequently, the Creditor and Trustee filed an objection to the Debtor’s homestead exemption, asserting that he could not claim the Property as exempt because he did not reside there on the petition date, and it was not his intent to retain the Property after completion of his bankruptcy case.

The Court held an evidentiary hearing on the Debtor’s motion to avoid lien and the Creditor’s objections, at which numerous parties testified. The Debtor and the Creditor then filed memoranda of law and the Court took the matter under advisement.

Pertinent Facts

The Debtor and the Creditor filed a joint statement stipulating that the following facts are undisputed and material:

1. The Debtor holds a half interest in the Property, as a tenant in common with his former spouse, Judy Mead Benware. Joint Statement of Undisputed Facts and Contested Issues (doc. # 39) (“JSUF”) ¶ 2.

2. The Debtor acquired the Property in two separate transactions. The first piece of land (the “Housesite”) consists of approximately 2.02 acres, and was acquired by warranty deed dated April 17, 1995, which was recorded in the Town of Coventry land records. JSUF ¶¶ 3, 4.

3. The Housesite was the site of the Debtor’s former marital home, which was destroyed by fibre in November 2006. JSUF ¶ 3.

4. The Housesite also contained a trailer, until it was removed in 2009. JSUF ¶ 7.

5. The Housesite is currently improved with utilities and a three-sided lean-to used to shelter beef cattle. JSUF ¶ 7.

6. The Debtor continues to receive his mail at the Housesite address of 4410 Pine Hill Road, Newport, Vermont. JSUF ¶ 20.

7. The second piece of land (the “Camp”) abuts the Housesite and consists of approximately 93 acres. The Camp was acquired by warranty deed dated August 10, 2000, which was recorded in the Town of Coventry land records. JSUF ¶ 8.

8. There is no deed combining the Camp and the Housesite into a single parcel. However, the Debtor receives one tax bill for the Property from the Town of Coventry. JSUF ¶ 5.

9. The Debtor filed at least one homestead declaration for the Property with the State of Vermont in 2011. JSUF ¶ 13.

10. The Camp has an approximately 676 square foot building, originally built by Ms. Benware’s brothers for use as a hunting camp. JSUF ¶ 9.

11. The Camp does not have running water, but water for the Camp is available from a hose located at the Housesite. Since 2011, the Camp has had electricity provided by wiring laid on the ground and connected to the Housesite. JSUF ¶ 11.

12. Currently, Joe and Jessica Mayhew and their three children reside at the Camp. Joe Mayhew is a friend and coworker of the Debtor. JSUF ¶¶ 10, 12.

13. From at least the fall of 2011 through May 10, 2012, the Debtor regularly stayed overnight at 1295 Alderbrook Road, in Coventry, Vermont (“Alderbrook”). JSUF ¶ 14.

14. Alderbrook is owned by the Debtor’s brother; the Debtor has no recorded interest in Alderbrook. The oil bill for Alder-[368]*368brook is not in the Debtor’s name. JSUF ¶ 16,17.

15. The Creditor holds a judgment lien encumbering the Property in the amount of $110,031.65 as of the petition date. JSUF ¶ 22.

Based upon the evidentiary hearing testimony, the Court makes the following additional findings of fact:

16. From August 2007 until September 2008, the Debtor lived at the Camp.

17. The Camp has no distinct address from the Housesite.

18. From September 2008 until it was removed in the spring of 2009, the Debtor lived at the Housesite in a trailer previously occupied by Ms. Benware’s mother. In April or May 2009, the Debtor moved into his daughter’s camper, which was located at the Housesite during that time.

19. In October 2009, the Debtor moved back to the Camp, where he resided until he began staying at Alderbrook.

20. The Debtor began staying at Aider-brook at sometime in 2010 or 2011.

21. Since he began staying at Aider-brook, the Debtor continued to spend a few nights per week at the Camp, until he filed the bankruptcy petition on May 10, 2012.

22. The Debtor has regularly claimed the Property as his homestead for tax purposes.

23. The Property has a value of $121,700. Therefore, the Debtor holds an undivided half interest in the Property valued at $60,850.

24. Though the Camp and Housesite are not entirely contiguous parcels, they share a common boundary of approximately 150-200 feet.

Discussion

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Cite This Page — Counsel Stack

Bluebook (online)
489 B.R. 363, 2013 WL 1276512, 2013 Bankr. LEXIS 1265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mead-vtb-2013.