In re Peirce

483 B.R. 368, 2012 WL 4622028, 2012 Bankr. LEXIS 4579
United States Bankruptcy Court, D. Massachusetts·Decided October 1, 2012·No. No. 11-15718-WCH·Published·Cited by 5 cases

Opinion

MEMORANDUM OF DECISION

WILLIAM C. HILLMAN, Bankruptcy Judge.

I. INTRODUCTION

The matters before the Court are the “Trustee’s Notice of Intention to Amend Terms and Conditions of Kenneth S. and Margaret M. Peirce Revocable Trust”1 (the “Notice to Amend”) and the “Application of Chapter 7 Trustee to Employ Real Estate Broker”2 (the “Application to Employ”) filed by Donald R. Lassman (the “Trustee”), the Chapter 7 trustee, the “Debtor’s Emergency Motion, (1) To Compel Chapter 7 Trustee to Comply with this Court’s Memorandum of Decision, (2) To Strike Trustee’s Notice of Intention to Amend Terms and Conditions of Kenneth S. and Margaret M. Peirce Revocable Trust, (3) To Strike Application of Chapter 7 Trustee to Employ Real Estate Broker, and (4) To Pay Reasonable Attorney’s Fees and Costs to Counsel to the Debtor”3 (the “Motion to Compel”) filed by Kenneth 5. Peirce and Margaret M. Peirce (collectively, the “Debtors”), the “Chapter 7 Trustee’s Opposition to [the Motion to Compel]”4 (the “Trustee’s Opposition”), the “Debtors’ Opposition to the Chapter 7 Trustee’s Application to Employ Broker”5 (the “Opposition to Application”), and the “Debtors’ Opposition to Chapter 7 Trustee’s Notice of Intention to Amend Terms and Conditions of Trust”6 (the “Opposition to Notice”). In sum, the Debtors seek to prevent the Trustee from amending a trust document to permit him to sell certain real estate upon which they have a valid homestead exemption in a life estate. For the reasons set forth below, I will deny the Motion to Compel and approve the Application to Employ.

II. BACKGROUND

On December 28, 2004, the Debtors conveyed certain real property located at 330 Huttleston Avenue, Fairhaven, Massachusetts (the “Property”) by deed (the “Deed”) to themselves as trustees of the Kenneth S. Peirce, Jr. and Margaret M. Peirce Revocable Trust (the “Trust”), naming their children as beneficiaries, but reserving, as will be explained below, an interest in the Property for themselves.7 The Trust instrument further granted the Debtors, as settlors of the Trust, a life estate in the Trust res and expressly provides that they “may revoke or from time to time amend this instrument in whole or in part....”8 On April 1, 2011, the Debt[371] ors executed and recorded a declaration of homestead (the “Homestead”) with respect to the Property pursuant to Mass. Gen. Laws ch. 188, § 1A.9 The Debtors estimate the current value of the Property to be approximately $240, OOO.10

On June 15, 2011, the Debtors filed a voluntary Chapter 7 petition.11 Initially, the Debtors did not include the Property on Schedule A — Real Property (“Schedule A”), but appropriately listed their interest in the Trust on Schedule B — Personal Property (“Schedule B”) under the category “Equitable or future interests, life estates, and rights or powers exercisable for the benefit of the debtor other than those listed in Schedule A — Real Property.”12 Similarly, the Debtors claimed the Homestead in the amount of $500,000 in what they described as “an equitable interest and or future interest in the Trust” on Schedule C — Property Claimed as Exempt (“Schedule C”).13 While the Debtors specified Mass. Gen. Laws ch. 188, § 1A as the basis for their exemption on Schedule C, a substantial revision of the statute became effective on March 16, 2011, making the proper basis of their exemption Mass. Gen. Laws ch. 188, § 2.14

On December 12, 2011, the Trustee filed an Objection of Chapter 7 Trustee to Homestead Exemption of Debtors (the “Objection to Homestead”), seeking, inter alia, a determination that the Homestead was limited to the Debtors’ life estate interests in the Property and, because the Homestead did not identify the Debtors as trustees, limited to the amount of $125,000.00.15 In response, the Debtors sought to amend Schedules A and C to reclassify their interest in the Property as one in fee simple, explaining that upon a closer inspection of the Deed, they transferred only a future interest in the Property, thus rendering the Objection to Homestead unfounded.16 The Trustee objected to the amendments, and after a hearing, I took the matter under advisement.17

On March 14, 2012,1 issued a Memorandum of Decision (the “Decision”), finding that the Debtors effectively transferred their interest in the Property to the Trust while reserving only a life estate for themselves.18 I further concluded that the Homestead protected “their life estate interest beyond the automatic $125,000 homestead exemption provided for in Mass. Gen. Laws ch. 188, §§ [sic] 4,” despite their failure to indicate that they were executing it as trustees.19 Accordingly, I overruled the Objection to Homestead and denied the Debtors’ motions to amend schedules.20 Neither party appealed.

This, however, did not end matters. On May 15, 2012, the Trustee filed the Notice to Amend and Application to Employ. In summary, the Trustee through the Notice to Amend seeks utilize the Debtors’ reserved power to amend the Trust to appoint himself as “Special Trustee” of the [372] Trust with the power to sell the Property and direct that the net proceeds of any such sale, less the value of the Debtors’ life estate as determined by the appropriate tables promulgated by the Internal Revenue Service, be distributed to the Trustee.21 To that end, the Trustee also requests that I approve the employment of Anthony P. Camarra Jr. and Camber Real Estate, Inc. as his real estate broker with respect to the Property. The Trustee proposes to pay Camarra, who is disinterested within the meaning of 11 U.S.C. § 101(14), a 6% commission on the gross proceeds of from the closing of a sale on the Property.

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In re Peirce, 483 B.R. 368, 2012 WL 4622028, 2012 Bankr. LEXIS 4579 (Mass. 2012).

483 B.R. 368 (In re Peirce) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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