In re Sutherland

495 B.R. 134, 2013 WL 3760093, 2013 Bankr. LEXIS 2840
CourtUnited States Bankruptcy Court, D. Massachusetts
DecidedJuly 16, 2013
DocketNo. 13-40282-MSH
StatusPublished

This text of 495 B.R. 134 (In re Sutherland) 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 Sutherland, 495 B.R. 134, 2013 WL 3760093, 2013 Bankr. LEXIS 2840 (Mass. 2013).

Opinion

MEMORANDUM OF DECISION AND ORDER ON TRUSTEE’S OBJECTION TO DEBTOR’S CLAIMS OF EXEMPTION

MELVIN S. HOFFMAN, Bankruptcy Judge.

Before me is an objection by the chapter 7 trustee, David M. Nickless, to the exemptions claimed by the debtors, James and Roberta Sutherland, in a Harley Davidson motorcycle and in cash and multiple depository accounts.

The material facts are undisputed. The debtors, husband and wife, filed a joint petition for relief under chapter 7 of the Bankruptcy Code (11 U.S.C. § 101 et seq.) on February 5, 2013. On schedule C (property claimed as exempt) accompanying their bankruptcy petition the debtors elected pursuant to Bankruptcy Code § 522(b)(3) to invoke state law exemptions. [136]*136Relying upon Mass. Gen. Laws ch. 235, § 34(fífteenth) and Mass. Gen. Laws ch. 246, § 28A, Mr. Sutherland claimed as exempt a total of $5,000 in cash and depository accounts and Ms. Sutherland claimed as exempt a total of $5,768 in depository accounts.1 Pursuant to Mass. Gen. Laws ch. 235, § 34(sixteenth), Mr. Sutherland also sought to exempt a 2009 Harley Davidson motorcycle worth $12,000 and a 2002 Nissan truck worth $3,400.

The trustee objected to the exemptions on a number of grounds. In an effort to address the trustee’s objections the debtors sought and were granted leave to file an amended schedule C. In their amended schedule C Ms. Sutherland continued to claim an exemption of $5,768 in depository accounts, while Mr. Sutherland increased his claimed exemption in cash and depository accounts to $10,750.2 Mr. Sutherland also continued to claim an exemption in the Harley Davidson motorcycle but dropped his claimed exemption in the Nissan truck.

The trustee object to the debtor’s amended claim of exemption for two reasons. First he alleges that Mass. Gen. Laws ch. 235, § 34(fifteenth) and Mass. Gen. Laws ch. 246, § 28A do not establish two separate $2,500 exemptions in cash and depository accounts. Rather, he argues, Mass. Gen. Laws ch. 246, § 28A is merely a directive to banking institutions and creditors that refers to the $2,500 exemption established under the statute most commonly thought of as the Massachusetts exemption statute, Mass. Gen. Laws ch. 235, § 34. In other words, a Massachusetts debtor electing state exemptions is entitled to a single $2,500 exemption in cash and depository accounts, not two separate $2,500 exemptions. Second, the trustee objects to Mr. Sutherland’s claimed exemption in the Harley Davidson, arguing that a motorcycle is not an automobile within the meaning of Mass. Gen. Laws ch. 235, § 34(sixteenth).

The Sutherlands stand by their exemption claims. They argue that Mass. Gen. Laws ch. 235, § 34(fifteenth) and Mass. Gen. Laws ch. 246, § 28A establish two separate $2,500 exemptions, so each debtor should be allowed to claim a total of $5,000 in cash and depository accounts under these statutes. Additionally, Mr. Sutherland argues that he should be able to exempt his Harley Davidson because it is an automobile within the meaning of Mass. Gen. Laws ch. 235, § 34(sixteenth) which he uses as his primary means of transportation, particularly to and from work, but in any event he is over 60 years of age and thus not subject to the use limitations of the statute.

This dispute implicates the following provisions of Massachusetts law:

Mass. Gen. Laws ch. 246, § 28A, which provides:
Twenty-five hundred dollars of any natural person in an account in a trust company, savings bank, cooperative bank, credit union, national banking association or other banking institution doing business in the commonwealth shall [137]*137be exempt from attachment by trustee process. A trustee summons served on any such institution shall describe the exemption with reference to this section. Upon service of a trustee summons, the trustee shall answer as subject to attachment only so much money of the defendant that exceeds $2,500.
No business, trust or organization shall be entitled to the exemption in this section and no natural person shall be entitled to more than a $2,500 exemption at any one time. In any action, the plaintiff may apply to the court for further attachments upon proof by certified records of a trustee that the defendant has received an exemption not authorized under this section or that the $2,500 exemption of the defendant has been in whole or in part exhausted or exceeded. Mass. Gen. Laws ch. 235, § 34 (fifteenth) and (sixteenth) which provide:

The following property of the debtor shall be exempt from seizure on execution:

Fifteenth, $2,500 in cash or savings or other deposits in a banking or investment institution, wages equal to the greater of 85 per cent of the debtor’s gross wages or 50 times the greater of the federal or the Massachusetts hourly minimum wage for each week or portion thereof and the full amount owing or paid to a person as public assistance; Sixteenth, An automobile necessary for the debtor’s personal transportation or to secure or maintain employment, not exceeding $7,500 of wholesale resale value; provided, however, that the equitable value of a vehicle owned or substantially used by debtor who is either a handicapped person or a person 60 years of age or older shall be exempt up to $15,000 in wholesale resale value.

The trustee offers no authority for his view that Mass. Gen. Laws ch. 246, § 28A does not establish an independent exemption but rather refers to the exemption established in Mass. Gen. Laws ch'. 235, § 34(fifteenth). While there appear to be no reported Massachusetts state court decisions on this issue, both the United States District Court in U.S. v. Turkanis, No. 86-2860-Z, 1993 WL 592266, at *2 (D.Mass. Dec. 29, 1993), and the Bankruptcy Court in In re Faro, No. 09-16896-FJB, 2010 WL 2787850, at *3 (Bankr. D.Mass. July 13, 2010), assumed without deciding that Mass. Gen. Laws ch.

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Cite This Page — Counsel Stack

Bluebook (online)
495 B.R. 134, 2013 WL 3760093, 2013 Bankr. LEXIS 2840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-sutherland-mab-2013.