In re: Steven A. Stephens

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: August 2, 2012
• Docket: ID-11-1304-MkHJu
• Status: Unpublished

Opinion

FILED AUG 02 2012 1 SUSAN M SPRAUL, CLERK U.S. BKCY. APP. PANEL 2 OF THE NINTH CIRCUIT UNITED STATES BANKRUPTCY APPELLATE PANEL 3 OF THE NINTH CIRCUIT 4 5 In re: ) BAP No. ID-11-1304-MkHJu ) 6 STEVEN A. STEPHENS, ) Bk. No. 10-41450-JDP ) 7 Debtor. ) ) 8 ) STEVEN A. STEPHENS, ) 9 ) Appellant, ) 10 ) v. ) MEMORANDUM* 11 ) R. SAM HOPKINS, Chapter 7 ) 12 Trustee, ) ) 13 Appellee. ) ) 14 Argued and Submitted on June 14, 2012 15 at Boise, Idaho 16 Filed – August 2, 2012 17 Appeal From The United States Bankruptcy Court for the District of Idaho 18 Honorable Jim D. Pappas, Bankruptcy Judge, Presiding 19 20 Appearances: Dustin W. Manwaring of the Milestone Law Firm argued on behalf of Appellant Steven A. Stephens; 21 Brett Cahoon of Racine, Olson, Nye, Budge & Bailey, Chartered, argued on behalf of Appellee R. 22 Sam Hopkins, Chapter 7 trustee. 23 Before: MARKELL, HOLLOWELL and JURY, Bankruptcy Judges. 24 25 26 * This disposition is not appropriate for publication. 27 Although it may be cited for whatever persuasive value it may have (see Fed. R. App. P. 32.1), it has no precedential value. 28 See 9th Cir. BAP Rule 8013-1. 1 INTRODUCTION 2 Debtor Steven A. Stephens (“Stephens”) claimed a homestead 3 exemption under Idaho law in real property he owned in Alaska. 4 R. Sam Hopkins, his chapter 71 trustee (“Trustee”), objected to 5 Stephens’ homestead exemption claim. The bankruptcy court 6 sustained the Trustee’s objection, and Stephens appealed. We 7 AFFIRM. 8 FACTS2 9 When Stephens, an Idaho native, filed his bankruptcy case, 10 he owned two parcels of real property. One was in Idaho Falls, 11 Bonneville County, Idaho (“Idaho Property”) and the other was in 12 Kenai Peninsula Borough, Sterling, Alaska (“Alaska Property”). 13 Stephens purchased the Alaska Property in 2006. At the time 14 he purchased the Alaska Property, it was vacant land. However, 15 over the course of several years, he worked on building a home on 16 the property with the intent to eventually reside there 17 permanently. Between 2007 and 2010, Stephens periodically would 18 travel to Alaska, for several days or weeks at a time, to work on 19 the construction of his Alaska home. While he made his permanent 20 move to the Alaska Property in December 2010, Stephens never 21 actually completed the home’s construction. The Alaska home 22 still lacks running water, a sewage system, cabinetry, carpeting 23 24 1 Unless specified otherwise, all chapter and section 25 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and all Rule references are to the Federal Rules of Bankruptcy 26 Procedure, Rules 1001-9037. All Civil Rule references are to the 27 Federal Rules of Civil Procedure. 2 28 The parties stipulated to all of the relevant facts.

2 1 and flooring.3 2 Stephens commenced his chapter 7 bankruptcy case in the 3 United States Bankruptcy Court for the District of Idaho in 4 August 2010, before his move to Alaska. Stephens had generally 5 been planning to relocate to Alaska as early as 2006 and had been 6 making firm plans to relocate there since early 2010. These firm 7 plans included obtaining professional licensing from the State of 8 Alaska to practice as a psychologist and seeking employment in 9 Alaska as a psychologist.4 10 In his bankruptcy schedules, Stephens listed both his Idaho 11 Property and his Alaska Property as assets. The bankruptcy 12 schedules indicated that the Idaho property was worth $130,000 13 but also was fully encumbered. As set forth in the schedules, 14 the Alaska Property was worth $54,000, with no encumberances. 15 Accordingly, citing Idaho Code § 55-1003,5 Stephens’ Schedule C 16 claimed the full value of the Alaska Property as exempt. 17 The Trustee timely objected to Stephens’ homestead exemption 18 3 19 While the stipulated facts do not specify why Stephens halted work on the home, we assume that he lacked sufficient 20 funds to continue the work, or that he wanted to make sure that he prevailed in his exemption claim dispute with the Trustee 21 before continuing the work, or both. 22 4 The parties do not dispute that Stephens was a domiciliary 23 of Idaho for bankruptcy venue purposes under 28 U.S.C. § 1408 and for choice of law purposes under § 522(b)(3). 24 5 Idaho Code § 55-1003 provides: 25 A homestead exemption amount shall not exceed the 26 lesser of (i) the total net value of the lands, mobile home, and improvements as described in section 55-1001, 27 Idaho Code; or (ii) the sum of one hundred thousand 28 dollars ($100,000).

3 1 claim, arguing that Idaho’s homestead exemption law, Idaho Code 2 §§ 55-1001, et seq., did not cover real property located outside 3 the State of Idaho. After the parties briefed the issue and 4 submitted their stipulated facts, the bankruptcy court decided 5 the matter without a hearing. In a memorandum decision, the 6 bankruptcy court relied on its own prior decisions in concluding 7 as a matter of law that Idaho’s homestead exemption law does not 8 apply to out-of-state real property.6 9 The bankruptcy court entered its order sustaining the 10 Trustee’s objection on May 10, 2011, and Stephens timely appealed 11 on May 27, 2011.7 12 JURISDICTION 13 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 14 §§ 1334 and 157(b)(2)(B). We have jurisdiction under 28 U.S.C. 15 § 158. 16 ISSUE 17 Does Idaho’s homestead exemption law cover real property 18 located outside the State of Idaho? 19 6 20 The bankruptcy court’s prior decisions are: In re Capps, 438 B.R. 668 (Bankr. D. Idaho 2010); In re Harris, 2010 WL 21 2595294 (Bankr. D. Idaho 2010); In re Kline, 350 B.R. 497 (Bankr. D. Idaho 2005); In re Halpin,1994 WL 594199 (Bankr. D. Idaho 22 1994). In In re Kline, the bankruptcy court ruled, among other 23 things, that: (1) Utah law explicitly did not permit debtors to claim a homestead in Idaho property, and (2) either Idaho or Utah 24 law would permit the debtors to claim a homestead in their mobile home. 350 B.R. at 502, 504 nn. 6 & 9. We express no opinion on 25 the extraterritoriality of either Idaho’s or Utah’s exemptions laws as they apply to mobile homes. 26 7 Pursuant to Rule 8002(c), the bankruptcy court entered an 27 order on July 28, 2011, granting Stephens an extension of time to 28 file his notice of appeal through May 27, 2011.

4 1 STANDARDS OF REVIEW 2 Questions of statutory interpretation, including the 3 interpretation of exemption laws, are questions of law we review 4 de novo. See Mullen v. Hamlin (In re Hamlin), 465 B.R. 863, 869 5 (9th Cir. BAP 2012). “Under de novo review, ‘we consider a 6 matter anew, as if it had not been heard before, and as if no 7 decision had been previously rendered.’” Wells Fargo Bank, N.A. 8 v. Loop 76, LLC (In re Loop 76, LLC), 465 B.R. 525, 536 (9th Cir. 9 BAP 2012) (quoting See B-Real, LLC v. Chaussee (In re Chaussee), 10 399 B.R. 225, 229 (9th Cir. BAP 2008)). 11 DISCUSSION 12 The commencement of Stephens’ bankruptcy case created a 13 bankruptcy estate consisting of all of Stephens’ legal or 14 equitable interests in property. § 541(a)(1); Schwab v. Reilly, 15 U.S. , 130 S.Ct. 2652, 2657 (2010). However, a debtor may 16 claim certain property as exempt from the bankruptcy estate. 17 § 522(b)(1). While the Bankruptcy Code provides its own schedule 18 of exemptions, § 522(d), each state is permitted to decide 19 whether its wants to “opt out” of the federal schedule of 20 bankruptcy exemptions. § 522(b)(2). Idaho explicitly has opted 21 out, Idaho Code § 11-609, so the only exemptions available to 22 Idaho residents are those provided by Idaho law, or by non- 23 bankruptcy federal law. § 522(b)(3).8 24 8 25 Both parties conceded in the bankruptcy court and in their opening appeal briefs that Stephens was domiciled in Idaho within 26 the meaning of § 523(b)(3)(A) and hence Idaho exemption law must be applied. Notwithstanding his earlier concessions, Stephens 27 attempted to back away from these concessions in his reply brief 28 (continued...)

5 1 The focus of this appeal is Idaho’s homestead exemption 2 law, Idaho Code §§ 55-1001, et seq. In particular, Stephens 3 contends that he was entitled to exempt his interest in the 4 Alaska Property under Idaho’s homestead exemption law.9 5 Unfortunately for Stephens, Idaho’s homestead exemption law does 6 not explicitly state that the law applies to out-of-state real 7 property. Nor does it state that it does not apply to out-of- 8 state real property. The statute simply doesn’t mention or 9 contemplate extraterritorial effect. 10 Stephens argues that we should construe this silence as 11 meaning that there is no bar to applying Idaho’s homestead 12 exemption law to out-of-state real property. He claims that the 13 “plain meaning” of the statutory lacuna is that there is no bar 14 to giving the statute extraterritorial effect. In short, he 15 contends that the Idaho legislature’s silence should be 16 interpreted as intent to extend the coverage of Idaho’s homestead 17 exemption law beyond the state’s geographical boundaries. 18 19 8 (...continued) 20 on appeal. All of the arguments Stephens attempted to make for the first time in his reply brief are deemed waived. See Golden 21 v. Chicago Title Ins. Co. (In re Choo), 273 B.R. 608, 613 (9th Cir. BAP 2002); Branam v. Crowder (In re Branam), 226 B.R. 45, 55 22 (9th Cir. BAP 1998), aff’d, 205 F.3d 1350 (table) (9th Cir. 23 1999). 9 24 Specifically, Idaho Code § 55–1008 exempts from attachment, execution or forced sale qualifying homesteads (as defined in 25 Idaho Code § 55–1001), and the proceeds of qualifying homesteads, up to the maximum amount specified in Idaho Code § 55–1003. The 26 parties do not dispute that the value of the Alaska Property does not exceed the maximum exemption amount permitted under Idaho 27 Code § 55–1003 (the lesser of $100,000 or the value of the 28 homestead).

6 1 Alternately, he claims that this Panel should construe 2 Idaho’s homestead exemption law liberally, in the same manner as 3 the Ninth Circuit construed California’s homestead exemption law 4 in Arrol v. Broach (In re Arrol), 170 F.3d 934, 936–37 (9th Cir. 5 1999). According to Stephens, if we employ the same type of 6 liberal construction as the Ninth Circuit employed in Arrol, we 7 necessarily will conclude that Idaho’s homestead exemption law 8 covers real property located outside the State of Idaho.10 9 As a threshold matter we note that, whenever this Panel is 10 called upon to interpret state law, it is bound by the decisions 11 of that state’s supreme court. Kekauoha-Alisa v. Ameriquest 12 Mortg. Co. (In re Kekauoha-Alisa), 674 F.3d 1083, 1087 (9th Cir. 13 2012) (citing Sec. Pac. Nat’l Bank v. Kirkland (In re Kirkland), 14 915 F.2d 1236, 1238 (9th Cir. 1990)). And when there is no 15 controlling state court decision, we must do our best to predict 16 how the state supreme court would decide the issue. In re 17 Kekauoha-Alisa, 674 F.3d at 1087-88. 18 To the best of our knowledge, no Idaho appellate court has 19 addressed the issue of whether Idaho’s homestead exemption law 20 applies to real property located outside of Idaho. Thus, 21 Stephens in essence urges this Panel to predict that, if the 22 Idaho Supreme Court were to consider this issue, it would 23 conclude that Idaho’s homestead exemption law applies to out-of- 24 state property. 25 26 10 For an overview of how other jurisdictions have dealt with the issue of the extraterritoriality of their homestead exemption 27 laws, see In re Capps, 438 B.R. 668, 671-72 (Bankr. D. Idaho 28 2010).

7 1 But we cannot make the prediction Stephens desires. To the 2 contrary, based on our reading of Idaho Supreme Court precedent, 3 we predict that the Idaho Supreme Court would limit the 4 applicability of Idaho’s homestead exemption law to real property 5 located within Idaho. In making this prediction, we particularly 6 rely upon a line of Idaho Supreme Court cases holding that, “[i]n 7 the absence of any extraterritorial phraseology contained in the 8 [statute in question], it cannot be construed to have an 9 extraterritorial effect, on the theory that the legislature so 10 intended.” Ore–Ida Potato Prods., Inc., v. United Pac. Ins. 11 Co., 87 Idaho 185, 194, 392 P.2d 191, 1996 (1964) (concluding 12 that bond issued under Idaho law to a farm produce dealer did not 13 cover a sales transaction consummated entirely outside the 14 state). Accord, Phillips v. Consol. Supply Co., 126 Idaho 973, 15 976, 895 P.2d 574, 577 (1995) (concluding that Idaho magistrate 16 had no authority under Idaho Vital Statistics Act to order 17 amendment of Missouri birth certificate); Walbridge v. Robinson, 18 22 Idaho 236, 125 P. 812, (1912) (concluding that Idaho statutory 19 water permit did not confer right to divert water from Idaho 20 stream for irrigation use in Montana). 21 We also rely on Idaho Supreme Court decisions acknowledging 22 that exemption statutes must be interpreted liberally, but 23 nonetheless declining to extend the exemption statutes beyond 24 what they reasonably could be construed to cover. See, e.g., 25 Young v. Wright, 77 Idaho 244, 246, 290 P.2d 1086, 1087 (1955);11 26 11 As Young put it, “‘[w]hile the [exemption] statute should 27 be liberally construed, it has been held that construction should 28 (continued...)

8 1 Wright v. Westheimer, 2 Idaho 962, 28 P. 430, 433 (1891). 2 Westheimer is particularly instructive. At the time 3 Westheimer was decided, Idaho’s homestead exemption law required 4 the filing of a homestead declaration as a prerequisite to the 5 effectiveness of any homestead exemption. Westheimer, 2 Idaho 6 962, 28 P. at 432-33. The appellant in Westheimer argued that 7 the Idaho Supreme Court nonetheless should liberally construe 8 Idaho homestead exemption law to cover the proceeds from the sale 9 of his prior homestead, which he had reinvested in his new 10 residence, even though he did not file the requisite homestead 11 declaration covering his new residence until after the creditor 12 had levied his first writ of attachment against the appellant’s 13 new residence. Id. at 432. 14 In rejecting appellant’s argument, Westheimer particularly 15 noted that Idaho’s homestead exemption law “contain[s] no 16 provisions for an exchange of one homestead for another, nor the 17 purchase of another with the proceeds of the sale of the one 18 exempt, nor for the exemption of the new homestead so purchased.” 19 Id. at 433. In other words, as Westheimer put it, “[o]ur 20 statutes are silent upon the question under consideration.” Id. 21 Notwithstanding its acknowledgment that the homestead exemption 22 law had to be liberally construed, and its recognition that the 23 24 11 (...continued) 25 not be indulged in to the extent of conferring privileges and benefits by construction which were not intended to be conferred 26 by the Legislature, or to the extent of doing violence to the terms of the statute.’” Young, 77 Idaho at 246, 290 P.2d at 1087 27 (quoting Conlin v. Traeger, 84 Cal.App. 730, 734-35, 258 P. 433, 28 434 (1927)).

9 1 law furthered the humane and reasonable purpose of providing “the 2 unfortunate debtor a place of refuge and a gleam of hope,” 3 Westheimer refused to expand the homestead exemption law beyond 4 its explicit scope: 5 . . . we can hardly conceive the necessity or propriety of strictly construing a statute of mercy or 6 benevolence. But, as our statutes are silent upon the question under consideration, this court will not 7 undertake to supply omissions made by the law-making power. This court must distinguish between enacting 8 laws and construing them. . . . We are of the opinion that an amendment of our homestead laws, exempting the 9 proceeds from a voluntary sale for a reasonable time, would be in the interest of humanity. For, however 10 much such an amendment may be desired, this court will not assume the power to amend the statutes, and thus 11 usurp the legislative functions of a co-ordinate branch of our state government. 12 13 Id. (Emphasis Added.) 14 Whatever benefit Stephens may be entitled to as a result of 15 the liberal construction of Idaho’s homestead exemption law, the 16 Idaho Supreme Court has indicated that this benefit does not 17 permit courts to engage in “judicial legislation” to fill in gaps 18 in the protections afforded to debtors under Idaho’s exemption 19 laws. See id.; see also Young, 77 Idaho at 246, 290 P.2d at 1087. 20 In sum, in light of the Idaho Supreme Court’s presumption 21 against implied extraterritoriality of its statutes, and its 22 refusal to judicially expand exemption entitlements beyond the 23 explicit terms of the exemption statutes, we feel compelled to 24 construe Idaho’s homestead exemption law as not applying to real 25 property located outside the State of Idaho. 26 Nothing in In re Arrol, 170 F.3d 934, requires us to hold 27 otherwise. After reviewing California’s homestead exemption law, 28 its legislative history, and the decisions of California’s

10 1 appellate courts interpreting the law, In re Arrol held that it 2 found “nothing” that would justify limiting the scope of 3 California’s homestead exemption law to real property located in 4 California. Id. at 937. In contrast, as set forth above, we 5 have found plenty of support in Idaho law for our holding that 6 Idaho’s homestead exemption law does not apply to out-of-state 7 real property. In short, the divergent results reached here and 8 in In re Arrol can be attributed to the distinctive bodies of 9 state law that control each decision.12 10 Stephens has made a handful of other legal and policy 11 arguments in support of his assertion that Idaho’s homestead 12 exemption law applies to out-of-state real property. However, in 13 light of the above-cited Idaho Supreme Court precedent, none of 14 Stephens’ other arguments persuade us that the Idaho Supreme 15 Court would give Idaho’s homestead exemption law extraterritorial 16 effect. 17 CONCLUSION 18 While we do not doubt that our views are a correct reading 19 of the statutes involved, we acknowledge that the result in this 20 case could be viewed as harsh and serendipitous. But it is not 21 our role to attempt to “fix” either federal or state exemption 22 law by strained or unsupportable interpretations. Either 23 Congress or the state legislators, not the courts, must act if 24 they don’t like how the laws they enacted actually work. See 25 12 26 While In re Arrol did not explicitly reference its duty to follow or predict how the California Supreme Court would decide 27 the issue, see In re Kekauoha-Alisa, 674 F.3d at 1087-88, In re Arrol’s adherence to that duty is implicit in the manner of its 28 analysis.

11 1 Lamie v. U.S. Trustee, 540 U.S. 526, 542 (2004); Young, 77 Idaho 2 at 246, 290 P.2d at 1087. 3 For the reasons set forth above, we AFFIRM the bankruptcy 4 court’s order sustaining the Trustee’s objection to Stephens’ 5 homestead exemption claim. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28