Munoz v. Dembs

757 F.2d 777
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 22, 1985
DocketNo. 84-1303
StatusPublished
Cited by8 cases

This text of 757 F.2d 777 (Munoz v. Dembs) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Munoz v. Dembs, 757 F.2d 777 (6th Cir. 1985).

Opinion

BOYCE F. MARTIN, Jr., Circuit Judge.

This is a bankruptcy case in which joint creditors sought to reach property held in a tenancy by the entirety. The bankruptcy court held that the previously granted discharge precluded debtor liability in the absence of a statutory exception. We affirm.

On October 28, 1982, plaintiff-appellant Linda Munoz and her husband, who is now deceased, were awarded a judgment of approximately $230,000 in the Wayne County Circuit Court, Michigan, against the debtor, Manuel Dembs, and his wife, Mildred Dembs. The Dembses were jointly and severally liable on the judgment.

On November 16, 1982, Manuel Dembs filed a voluntary petition for bankruptcy under Chapter 7 of the Bankruptcy Code. The Munozes were listed as unsecured creditors in a schedule attached to the petition. In the schedule of exempt property, also attached to the petition, Dembs claimed his interest in certain real property held in a tenancy by the entirety. No objection to this claimed exemption was filed. On February 28, 1983, the bankruptcy court entered an order of discharge.

On May 31, 1983, plaintiff initiated this action in bankruptcy court. She sought to satisfy her state court judgment out of the Dembses’ entireties property, except to the extent of proper senior security interests and the Dembses’ $3,500 homestead exemption in Mich. Cctast. art. 10, § 3. She urged the court to adopt the procedure set out in In re Trickett, 14 B.R. 85, 90-91 (Bankr.W. D.Mich.1981), in administering the entire-ties property.

The bankruptcy court on September 9, 1983, dismissed the action on the ground that the debt was already discharged and [779]*779plaintiff failed to obtain any exception from discharge. The district court affirmed on March 30, 1984.

The state court action meanwhile continued on appeal. The certified record does not disclose why the automatic stay provision of 11 U.S.C. § 362 and the discharge provision of 11 U.S.C. § 524 did not prevent these proceedings. On October 17, 1984, the Michigan Court of Appeals reversed the trial court’s judgment. The plaintiffs filed an application for leave to appeal to the Michigan Supreme Court on November 6, 1984. No. 75334. Plaintiff moved to postpone oral argument in the present case until the Michigan Supreme Court grants or denies the application for leave to appeal. The Michigan Supreme Court typically takes about seven months before taking action on applications for leave to appeal. To avoid delay, this court in its equitable discretion denied the motion for postponement.

It appears that, if the plaintiff’s complaint is taken as a timely objection to the claim of exemption, the objection may well be valid. See In re Grosslight, 757 F.2d 773 (6th Cir.1985). The threshold question, therefore, is whether the complaint was timely. The district court held that the action was not untimely by reason of former Bankrtupcy Rule 403, but was untimely under new Bankruptcy Rule 4003, and was further untimely because a discharge already was in effect.

This case was filed after the effective date of the Bankruptcy Act of 1978, Pub.L. No. 95-598, 92 Stat. 2549 (codified as amended in 11 U.S.C. and scattered sections of 28 U.S.C.). Under the new Bankruptcy Code, the debtor has the right to have certain property exempted from the bankruptcy estate. The statutory procedure is set out in 11 U.S.C. § 522(l):

(l) The debtor shall file a list of property that the debtor claims as exempt under subsection (b) of this section. If the debtor does not file such a list, a dependent of the debtor may file such a list, or may claim property as exempt from property of the estate on behalf of the debtor. Unless a party in interest objects, the property claimed as exempt on such list is exempt.

The statute itself does not contain a time limit, but the Bankruptcy Act of 1978 provided that the old Bankruptcy Rules applied to the extent not inconsistent with the new act, until superseded by new rules. Pub.L. No. 95-598, § 405(d), 92 Stat. 2549, 2685. Old Bankruptcy Rule 403 provided in relevant part:

Rule 403. Exemptions
(a) Claim of Exemptions
A bankrupt shall claim his exemptions in the schedule of his property required to be filed by Rule 108.
(b) Trustee’s Report
The trustee shall examine the bankrupt’s claim for exemptions, set apart such as are lawfully claimed and allowable, and report to the court the items set apart, the amount or estimated value of each, and the exemptions claimed that are not allowable. The report shall be filed with the court not later than 15 days after the trustee qualifies. If the trustee reports that any exemption claimed is not allowable, he shall forthwith mail or deliver copies of the report to the bankrupt and his attorney.
(c) Objections to Report
Any creditor or the bankrupt may file objections to the report within 15 days after its filing, unless further time is granted by the court within such 15-day period. Copies of the objections so filed shall be delivered or mailed to the trustee and, if the objections are by a creditor, to the bankrupt and his attorney. After hearing upon notice the court shall determine the issues presented by the objections. The burden of proof shall be on the objector.

The current statute, section 522(Z), does not require the trustee to file a report on the debtor’s claim for exemptions. The question is whether the fifteen-day time limit for filing objections survived. We think that it did not. The old time limit was from the time of the report, not from the time the exemptions were claimed. [780]*780The report was the notice to debtors that their fifteen days had begun to run. Without the report, and in the absence of an explicit rule, debtors had no notice of any time limit.

We are aware that the Tenth Circuit apparently took a different view in Redmond v. Tuttle, 698 F.2d 414, 416-17 (10th Cir.1983). We believe, however, that the Redmond court may not have given full consideration to the equitable concerns just discussed. The objection in Redmond was made within fifteen days, so their discussion of the issue was in the nature of dictum. Certainly the overwhelming majority of lower courts that have considered the issue have held that the time limit in Rule 403(c) has no validity under the Bankruptcy Code. E.g., In re Penland, 34 B.R. 536, 541 (Bankr.E.D.Tenn.1983); In re Bartley, 33 B.R. 768, 770 (Bankr.E.D.N.Y. 1983); In re Waters, 22 B.R. 387 (Bankr.N. D.Tex.1982); In re Langley, 21 B.R. 772, 773 (Bankr.D.Me.1982); In re Darke, 18 B.R. 510, 512 (Bankr.E.D.Mich.1982).

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Dembs v. Dembs
757 F.2d 777 (Sixth Circuit, 1985)

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Bluebook (online)
757 F.2d 777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/munoz-v-dembs-ca6-1985.