In re Riley

486 B.R. 711, 2013 WL 690823, 2013 Bankr. LEXIS 734
CourtUnited States Bankruptcy Court, D. South Carolina
DecidedFebruary 25, 2013
DocketNo. 09-04740-dd
StatusPublished
Cited by3 cases

This text of 486 B.R. 711 (In re Riley) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Riley, 486 B.R. 711, 2013 WL 690823, 2013 Bankr. LEXIS 734 (S.C. 2013).

Opinion

ORDER SUSTAINING TRUSTEE’S OBJECTION TO DEBTOR’S EXEMPTIONS

DAVID R. DUNCAN, Bankruptcy Judge.

This matter comes before the Court on the objection of the Chapter 7 Trustee (“Trustee”) entered October 15, 2012, to exemptions claimed by the debtor, Charles E. Riley (“Debtor”) on his schedules. Debtor filed a response in opposition to the objection. The Court held a hearing on December 4, 2012, at which it heard arguments and directed the parties to submit supplemental briefing. Both the Trustee and Debtor submitted supplemental briefs. After careful consideration, the Court issues the following findings of fact and conclusions of law with respect to the Chapter 7 Trustee’s objection to Debtor’s claimed exemptions.

FINDINGS OF FACT

In December 2004, Debtor and Tessa Spigner executed and delivered two notes and mortgages to New Century Mortgage Corporation (“New Century”). The mortgaged property was Debtor’s residential property located at 34 Crossbow Lakes Court, Columbia, South Carolina. Ms. Spigner has an interest in the real property but is not otherwise involved in these proceedings. New Century filed a chapter 11 bankruptcy case on April 2, 2007 in the United States Bankruptcy Court, District of Delaware. In October 2007, New Century assigned the notes and mortgages to Deutsche Bank National Trust Company, as Trustee for Carrington Mortgage Loan Trust, Series 2005-NC1 Asset Backed Pass-Through Certificates (“Carrington Mortgage”), and the assignments were recorded on October 30, 2007, and November 13, 2007, respectively.

The mortgages executed by Debtor and Ms. Spigner required them to maintain insurance on the property. However, the mortgagors failed to do so, and effective July 17, 2007, Carrington Mortgage, as it was permitted to do under the terms of the mortgages, obtained an insurance policy on the residence through Safeco Insurance (“Safeco”). Debtor purchased a casualty insurance policy from Nationwide Insurance Company (“Nationwide”) on July 23, 2007. Carrington Mortgage was listed as a loss payee on the Nationwide policy. On August 1, 2007, a fire destroyed the residence. On August 9, 2007, Carrington Mortgage cancelled the Safeco policy and subsequently requested that Safeco retroactively adjust the cancellation date to July 23, 2007, the effective date of the Nationwide insurance policy purchased by Debtor.

On September 11, 2007, Nationwide issued a check for the fire loss in the amount of $289,000, jointly payable to Debtor and Carrington Mortgage. The check was not cashed before it became stale, and Nationwide issued another check on May 5, 2009 for the same amount, again jointly payable to Debtor and Plaintiff. That check was [713]*713deposited into Debtor’s Bank of America account on May 11, 2009 and contained the signature of Debtor and a stamped in-dorsement, “Carrington Mortgage for Deposit Only.”

Debtor commenced litigation against Safeco and Nationwide in the Court of Common Pleas for Lexington County, South Carolina in 2008, Charles E. Riley v. Safeco Insurance and Nationwide Property and Casualty Insurance Company, No. 2008-CP-32-00851, seeking a determination that the insurance policies overlapped, that he alone was entitled to recover from Nationwide, and that Carrington Mortgage was entitled to recover from Safeco. The state court granted summary judgment both to Safeco and Nationwide, finding that Safeco’s policy was not in effect at the time the fire occurred, and that even if it had been, an “escape clause” in the policy which provided that the insurance policy would not apply if other insurance was in place prevented recovery from Safeco. With respect to Nationwide, the court found that the Nationwide policy provided coverage for the fire loss and that the language of Nationwide’s policy required it to make the check payable to Carrington as a joint payee and that Debtor had no grounds for arguing that the check should be payable to him only; thus, it found that the check issued to both Debtor and Car-rington Mortgage was proper.

Debtor filed the present bankruptcy proceeding on June 29, 2009, under chapter 13 of the Bankruptcy Code. Debtor’s second amended Statement of Financial Affairs (“SOFA”), filed on September 15, 2009, lists $478,000 as “2007 income from insurance company due to house fire. $190,000 went to home contractor to begin rebuilding.” Separately, the SOFA lists $289,000 as “2009 funds from insurance company to build house. Note: $100,000 listed on Schedule B. Remaining amount has been distributed to builder.” Schedule B, filed July 13, 2009, lists $100,000 in a checking account with Bank of America and states, “Note: all funds are from insurance proceeds to build a house.”

Debtor’s Schedule C, filed July 13, 2009, claims an exemption in “checking with BOA” of $51,450 under S.C.Code Ann. § 15-41-30(A)(1), which is otherwise known as the homestead exemption. In his objection to Debtor’s claimed exemptions, the Trustee asserts that he recovered funds from a certificate of deposit (“CD”) at Bank of America, not a checking account, and that the amount was $137,561.26, not $100,000. On November 28, 2012, Debtor filed an amended Schedule B listing $137,561.26 located in a Bank of America CD account. Debtor also filed an amended Schedule C, reflecting Debt- or’s claim that $51,450 of the $137,561.26 is exempt under S.C.Code Ann. § 15-41-30(A)(1) and $1,725 is exempt under S.C.Code Ann. § 15-41-30(A)(7). These funds in the Bank of America CD account that the parties agree is insurance proceeds from the fire and Debtor’s claimed exemptions in those proceeds is the subject of the Trustee’s objection before the Court and an adversary proceeding Car-rington Mortgage pursued against Debtor.

On December 21, 2009, this Court entered a Supplemental Order on a motion to convert Debtor’s case to a proceeding under chapter 7 of the Bankruptcy Code filed by the Chapter 13 Trustee and a motion to dismiss filed by Debtor.1 (Docket #72). In that Order, the Court found that this was Debtor’s third bankruptcy filing. His first case, No. 06-05120-jw, was filed on November 8, 2006, and dismissed on March 9, 2007, for failing to provide documents to the Chapter 13 Trustee. His [714]*714second case, No. 07-01838-dd, was filed on April 4, 2007, and was dismissed on October 10, 2007, for failure to make adequate and timely payments. This second dismissal was with prejudice as to any filing under chapter 13 for a period of one year. During this prejudice period, Tessa D. Spigner, co-owner of 34 Crossbow Lakes Court property, filed a voluntary chapter 13 bankruptcy proceeding to prevent foreclosure by Debtor’s creditors. See In re Spigner, No. 08-02674-dd, slip op. (Bankr. D.S.C. Aug. 3, 2009) (dismissing case for non-payment).

In the Supplemental Order, the Court also found that Debtor’s disclosures about the insurance proceeds on his September 15, 2009 SOFA were inconsistent with his testimony that he received $198,000 in 2007 for the contents of his home destroyed in the fire and $289,000 in 2009 for damage to the house. The Court concluded Debtor’s actions in the case had reached “the level of egregious conduct warranting denial of Debtor’s motion to dismiss.” In describing this conduct, the Court stated:

Debtor is a serial filer. This is Debtor’s third bankruptcy filing since November of 2006. Both of Debtor’s previous cases were dismissed without any dividend being paid to Debtor’s unsecured creditors. Additionally, Debtor’s conduct in this case demonstrates a pattern of continued abuse of the bankruptcy system.

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Cite This Page — Counsel Stack

Bluebook (online)
486 B.R. 711, 2013 WL 690823, 2013 Bankr. LEXIS 734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-riley-scb-2013.