In re Newcomb

513 B.R. 7, 2014 WL 3407838, 2014 Bankr. LEXIS 2956
CourtUnited States Bankruptcy Court, D. Massachusetts
DecidedJuly 10, 2014
DocketNo. 13-14840-WCH
StatusPublished
Cited by6 cases

This text of 513 B.R. 7 (In re Newcomb) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Newcomb, 513 B.R. 7, 2014 WL 3407838, 2014 Bankr. LEXIS 2956 (Mass. 2014).

Opinion

MEMORANDUM OF DECISION

WILLIAM C. HILLMAN, Bankruptcy Judge.

I. INTRODUCTION

The matter before the Court is the “Objection of the Chapter 7 Trustee to the Debtor’s Claim of Homestead Exemption” (the “Objection”) filed by Warren E. Agin (the “Trustee”), the Chapter 7 trustee of the estate of Steven Wade Newcomb (the “Debtor”), and the Debtor’s response thereto (the “Response”). The Trustee objects to the Debtor’s claimed exemption under the Massachusetts Homestead Statute 1 on the basis that the declaration of homestead is defective and, in any event, the real property in question, title to which [9]*9is held by a trust for the benefit of another trust, is not owned by a “natural person” as that term is used in the statute. For the reasons set forth below, I will overrule in part and sustain in part the Objection.

II. BACKGROUND

Despite some initial confusion regarding the identification of the relevant trust instruments, the facts necessary to decide this matter are no longer in dispute. Instead, the parties simply disagree as to the legal implications arising from them.

On August 14, 2013, the Debtor filed a voluntary Chapter 7 petition. On “Schedule A — Real Property” (“Schedule A”), he indicated he held an interest as a joint tenant in real property located at 72 Eagle Trace in Bridgewater, Massachusetts (the “Property”). The Debtor listed the fair market value of the Property as $443,453.00, and subject to secured claims in the amount of $248,674.31. On “Schedule C — Property Claimed as Exempt” (“Schedule C”), the Debtor claimed an exemption in the Property pursuant to Mass. Gen. Laws ch. 188, § 1 in the amount of $500,000.00 (the “Exemption”).

Notwithstanding the Debtor’s representation on Schedule A, title to the Property is held by a nominee trust known as the Seventy-Two Eagle Trace Realty Trust (the “Realty Trust”).2 The Debtor and his non-debtor spouse, Regina M. Newcomb (“Regina”), are the trustees of the Realty Trust.3 Under the terms of the Realty Trust, the trustees may only exercise their powers as directed by the beneficiaries.4 The beneficiaries of the Realty Trust may terminate of the trust at any time, the result of which would be that the trust property would be distributed to the beneficiaries in proportion to their interests in the Realty Trust.5 The Schedule of Beneficial Interests attached to the Realty Trust indicates that The Regina M. New-comb Revocable Trust (the “Revocable Trust”) is the sole beneficial interest holder.6

The Revocable Trust is a much more complicated estate planning tool. In broad strokes, Regina is the settlor with a retained power to amend or revoke, the initial sole trustee, and the sole beneficiary during her lifetime.7 Upon her death, the Revocable Trust splits into a number of sub-trusts for the benefit of the Debtor or Regina’s descendants.8 The composition of these sub-trusts is designed to obtain the most favorable treatment for the trust res as possible under the applicable state and federal tax laws.9 As is relevant here, the Debtor, if he survives Regina, may, in the discretion of the Revocable Trust’s trustee, enjoy lifetime distributions from the “Credit Shelter Trust,” “Marital Trust A,” and “Marital Trust B.”10 The Debtor would also hold a limited power of appointment to direct the final disposition of the Credit Shelter Trust’s res upon his death.11

The basis of the Exemption is a Declaration of Homestead (the “Declaration”) the Debtor and Regina, as trustees of the Realty Trust, recorded on June 1, 2011. The Declaration, which appears to be a form [10]*10produced by the Real Estate Bar Association for Massachusetts, provides as follows:

DECLARATION OF HOMESTEAD M.G.L. c. 188 § 3 (For Homes Owned by Trustee(s))
We Steven W. Newcomb and Regina M. Newcomb, Trustee(s) of the Seventy-Two Eagle Trace Realty Trust u/d/t dated 8/29/2001, hereby declare homestead pursuant to M.G.L. c. 188 § 3, for the benefit of the beneficiaries hereinafter named with respect to the herein-described premises and state as follows:
1. Said Declaration of Trust is recorded in the Plymouth County Registry of Deeds in Book 23567, Page 93
2. We are the owners as Trustee(s) of the premises at 72 Eagle Terrace [sic], Bridgewater, Massachusetts, by virtue of a deed from Steven W. Newcomb and Regina M. Newcomb dated 6/14/2005 and recorded in said Registry of Deeds in Book 29981, Page 346 which premises Steven W. Newcomb and Regina M. Newcomb as beneficiaries of the trust, occupy or intend to occupy as their principal residence.
3. Beneficiaries Steven W. Newcomb and Regina M. Newcomb are married to each other.
Signed under the penalties of perjury this 31st day of May, 2011
la/-
Steven W. Newcomb
/a/-
Regina M. Newcomb12

Although the Declaration indicates that the Debtor and Regina are trustees of the Realty Trust, and that the Realty Trust holds title to the Property, it erroneously states that they are beneficiaries of the Realty Trust without reference to the Revocable Trust.

The Trustee was appointed on August 15, 2013. The Debtor appeared at the meeting of creditors held pursuant to 11 U.S.C. § 341 (the “Meeting of Creditors”) on September 18, 2013. The Trustee continued the Meeting of Creditors twice before ultimately concluding it on December 4, 2013. The reason for these continuances, as evidenced by the Trustee’s filing a motion for turnover on October 29, 2013, was the Debtor’s failure to turnover various documents, including several declarations of trust which would have promptly clarified the ownership of the Property.

On January 22, 2014, the Trustee filed the Objection. After several extensions, the Debtor filed the Response on April 1, 2014, to which the Trustee filed a reply on April 18, 2014. I conducted a hearing on April 23, 2014, and at the conclusion of oral arguments, took the matter under advisement. Both parties filed supplemental memoranda on May 22, 2014.

III. POSITIONS OF THE PARTIES

A. The Trustee

The Trustee begins by asserting that the Declaration is defective because it misidentified the beneficiaries of the Realty Trust as the Debtor and Regina. In support, he posits:

A written declaration of homestead must identify the owners designated to benefit. The Debtor’s declaration erroneously identified himself and his wife as the “owners,” but they were not then and are not now the owners, not by statutory definition or common law, and neither were they the trust beneficiaries.13

[11]

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Cite This Page — Counsel Stack

Bluebook (online)
513 B.R. 7, 2014 WL 3407838, 2014 Bankr. LEXIS 2956, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-newcomb-mab-2014.