Marine Midland Business Loans, Inc. v. Carey (In re Carey)

112 B.R. 401, 1989 U.S. Dist. LEXIS 16880
CourtDistrict Court, W.D. Oklahoma
DecidedNovember 9, 1989
DocketNo. CIV 89-641-R BK; Bankruptcy No. 88-02576-TS; Adv. No. 88-0272
StatusPublished

This text of 112 B.R. 401 (Marine Midland Business Loans, Inc. v. Carey (In re Carey)) is published on Counsel Stack Legal Research, covering District Court, W.D. Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marine Midland Business Loans, Inc. v. Carey (In re Carey), 112 B.R. 401, 1989 U.S. Dist. LEXIS 16880 (W.D. Okla. 1989).

Opinion

MEMORANDUM OPINION

DAVID L. RUSSELL, District Judge.

Before the Court is an appeal from an Order Sustaining in Part Objection to Claim of Exemption and Granting Judgment for Defendant entered below on February 7, 1989 (hereinafter “Order”). 96 B.R. 336. Said Order reflects the bankruptcy court’s judgment on (1) Plaintiffs Objection to Claim of Exemption with respect to homestead property of the Defendant, and (2) Plaintiff’s adversary complaint seeking denial of discharge of the Defendant Carey based on allegations that the Defendant intended to hinder, delay, or defraud her creditors within the meaning of 11 U.S.C. § 727(a)(2)(A).

Issues presented on appeal by Plaintiff are (1) whether the bankruptcy court erred in finding that the debtors bankruptcy planning failed to constitute fraud for purposes of denial of the debtor’s homestead exemption; and (2) whether the bankruptcy court erred in finding that the Debtor’s bankruptcy planning failed to constitute a fraud on creditors for purposes of denial of the Debtor’s discharge.

The Court finds that jurisdiction to consider the issues on appeal is present under the provisions of 28 U.S.C. § 158(a).

In the judgment under review, the bankruptcy court made findings of fact based on two documents1 entered into evidence at the trial below, which are attached to the court’s order. In summary, these facts, inter alia, disclose the following:

1. Debtor and her husband were personal guarantors of debt owed to Plaintiff, which was a major financer of the [now bankrupt] Carey Lumber Company. (Order, p. 2)

2. In late 1985, Carey Lumber Company began experiencing financial difficulties. “Debtor and her husband mortgaged their home to provide an infusion of capital into the business. In addition, Debtor liquidated her portfolio of stocks and loaned the proceeds of approximately $85,000.00 to the Company.” (Order, p. 2)

[402]*4023.Prior to filing her Chapter 7 bankruptcy petition on April 20, 1988, the Debt- or engaged in extensive pre-bankruptcy planning, taking “[e]very advantage the bankruptcy law could afford.” (Order, p. 3)

a. “[S]everal transactions occurred which resulted in no monetary gain for Debtor and no apparent loss to the bankruptcy estate.” (Order, p. 3)

b. Other transactions, however, did result in loss to the bankruptcy estate, as the Order sets out at p. 3-4:

Debtor appears to have converted virtually all her remaining non-exempt property, carefully documented as to value, into cash used to pay down the mortgage on her homestead. This included jewelry, Debtor’s one-half interest in Carey Equipment Company’s assets amounting to approximately $16,000.00, and her interest in a Colorado time-share condominium development amounting to approximately $34,300.00. Also utilized for this purpose were joint income tax refunds, the proceeds from the sale of two cars owned by her husband and a portion of her pre-bankruptcy earnings.
The $85,000.00 loan Debtor made to the Company [Carey Lumber Company] was repaid to her prior to the Company’s bankruptcy, and at least $27,000.00 of this repayment was also applied toward the mortgage debt [on the homestead]. The only item of non-exempt property not converted to cash or conveyed away by Debtor was that portion of the homestead exceeding the statutorily allowed exemption of one-quarter of an acre of land.2

4. Finding for the Debtor on the issue of discharge, the Debtor “succeeded in placing close to $180,000.00 beyond the reach of creditors during the 21-month period immediately preceding the filing of her bankruptcy petition.” (Order p. 8)

5. The Debtor fully disclosed all transactions in the bankruptcy schedules and at the first meeting of creditors. “No direct evidence of concealment or fraud concerning debtor’s pre-bankruptcy activities was brought to the attention of the Court.” (Order, p. 8-9) (emphasis supplied)

Based on these facts the bankruptcy court concluded, upon its analysis of the law, that “[t]here has not been a sufficient showing of overt conduct on the part of Debtor from which to infer as a matter of law the requisite intent necessary to deny Debtor a discharge under § 727(a)(2)(A).” The court further concluded that “[t]he evidence is insufficient as a matter of law to support the imposition of a trust or lien [403]*403upon debtor’s homestead, though this is indeed a close question.” (Order, p. 11)

The issues raised by the Plaintiff on appeal do not go to the bankruptcy court’s findings of fact in this case, but instead question the court’s application of those facts to relevant law, which this Court reviews de novo. Rubenstein v. Ball Bros., Inc. (In re New England Fish Co.), 749 F.2d 1277 (9th Cir.1984).3

Analysis

With respect to conversions of non-exempt property to exempt property, the law defining the “per se” rule is old and well-established. It is succinctly stated in Crawford v. Sternberg, 220 F. 73, 76 (8th Cir.1915), as follows:

It is well settled that it is not a fraudulent act by an individual who knows he is insolvent to convert a part of his property which is not exempt into property which is exempt for the purpose of claiming his exemptions therein, and of thereby placing it out of the reach of his creditors, (citations omitted)

See also, Forsberg v. Security State Bank, 15 F.2d 499 (8th Cir.1926); In Re Ellingson, 63 B.R. 271 (Bkrtcy.N.D.Iowa 1986). This is consistent with legislative history of the Bankruptcy Code.4

This is additionally consistent with Oklahoma law, where perhaps the strongest statement of the rule specifically related to homestead (but not in the context of bankruptcy) is found in Evans v. Evans, 180 Okl. 46, 67 P.2d 779, 781 (1937):

The law has made the homestead free and independent of its owner’s debts and creditors, and in extending credit to his debtor the creditor need never take in consideration the homestead as an asset of his debtor, to which he can look for the satisfaction of the debt.... The law has placed the homestead beyond the reach of creditors and it would be anomalous to say that it would be fraud for the debtor to do the same thing, (citations omitted)

See, Hunter v. Griffith, 12 Okl. 436, 72 P. 361 (1903).

Since the enactment of the Bankruptcy Reform Act of 1978, numerous courts have considered fact situations which demonstrate seeming inequities with respect, to creditors of “monied” debtors, particularly in states as Oklahoma with liberal exemption laws. Some courts have carved out specific exceptions to exemptions and/or discharge based on theories of actual or constructive fraud. However, this Court finds no case in Oklahoma or in this circuit that denies an exemption or discharge when the exempted property in question is the designated homestead of the debtor.

A.

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Related

Reed v. Reed
700 F.2d 986 (First Circuit, 1983)
In Re New England Fish Company
749 F.2d 1277 (Ninth Circuit, 1984)
Founders Bank & Trust Co. v. Swift (In Re Swift)
72 B.R. 563 (W.D. Oklahoma, 1987)
Forsberg v. Security State Bank of Canova
15 F.2d 499 (Eighth Circuit, 1926)
Evans v. Evans
1937 OK 277 (Supreme Court of Oklahoma, 1937)
Hunter and Hunter v. Griffith El Al.
1903 OK 14 (Supreme Court of Oklahoma, 1903)
Crawford v. Sternberg
220 F. 73 (Eighth Circuit, 1915)
Supre v. Ricketts
792 F.2d 958 (Tenth Circuit, 1986)
Norwest Bank Nebraska, N.A. v. Tveten
848 F.2d 871 (Eighth Circuit, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
112 B.R. 401, 1989 U.S. Dist. LEXIS 16880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marine-midland-business-loans-inc-v-carey-in-re-carey-okwd-1989.