Res-Ga Memorial, LLC v. Foah (In re Foah)

482 B.R. 918
CourtBankruptcy Appellate Panel of the Tenth Circuit
DecidedDecember 3, 2012
DocketBAP No. NM-12-019; Bankruptcy No. 11-13550
StatusPublished
Cited by4 cases

This text of 482 B.R. 918 (Res-Ga Memorial, LLC v. Foah (In re Foah)) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Res-Ga Memorial, LLC v. Foah (In re Foah), 482 B.R. 918 (bap10 2012).

Opinion

OPINION

BROWN, Bankruptcy Judge.

Debtor Lucio Leide Foah (“Debtor”) filed a Chapter 7 petition in the United States Bankruptcy Court for the District of New Mexico on August 5, 2011. In his schedules, he claimed an exemption in a life insurance policy under New Mexico law.1 The Debtor acquired this policy from Northwestern Mutual Life in 1992.2 He is both its owner and the named beneficiary. Originally, the policy insured the lives of both of his parents. Unfortunately, his mother passed away before his bankruptcy filing, but his father is still living. The policy provides a death benefit of $375,000 on each named insured, for a total of $750,000, which is payable only upon the death of the second insured. At the time of filing, the policy had a cash surrender value of nearly $281,000, which the Debtor has claimed as fully exempt. Appellant RES-GA Memorial, LLC (“Creditor”) objected to this exemption. The single issue in this appeal is whether the New Mexico exemption statute upon which Debtor relies requires the policy’s insured to be a resident of New Mexico. The Debtor’s father, as the sole remaining insured under the policy, is a resident of Georgia. Debtor moved for summary judgment on this issue, which the bankruptcy court granted in the Debtor’s favor. We AFFIRM.

I. APPELLATE JURISDICTION AND STANDARD OF REVIEW

This Court has jurisdiction to hear timely-flled appeals from “final judgments, or[920]*920ders, and decrees” of bankruptcy courts within the Tenth Circuit, unless one of the parties elects to have the district court hear the appeal.3 None of the parties elected to have this appeal heard by the United States District Court for the District of New Mexico, and they have therefore consented to appellate review by this Court.

A decision is considered final “if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ”4 The bankruptcy court’s March 12, 2012 order denying Creditor’s objection and allowing Debtor’s exemption is a final order for purposes of appeal.5 Creditor timely filed a notice of appeal from that order on March 23, 2012. Therefore, this Court has jurisdiction over the appeal.

The sole issue in this appeal is a question of statutory interpretation. Statutory interpretation is a purely legal issue that this Court reviews de novo.6

II. DISCUSSION

In claiming his exemption, the Debtor relies on the following statute, which reads in its entirety:

The cash surrender value of any life insurance policy, the withdrawal value of any optional settlement, annuity contract or deposit with any life insurance company, all weekly, monthly, quarterly, semiannual or annual annuities, indemnities or payments of every kind from any life, accident or health insurance policy, annuity contract or deposit heretofore or hereafter issued upon the life of a citizen or resident of the state of New Mexico, or made by any such insurance company with such citizen, upon whatever form and whether the insured or the person protected thereby has the right to change the beneficiary therein or not, shall in no case be liable to attachment, garnishment or legal process in favor of any creditor of the person whose life is so insured or who is protected by said contract, or who receives or is to receive the benefit thereof, nor shall it be subject in any other manner to the debts of the person whose life is so insured, or who is protected by said contract or who receives or is to receive the benefit thereof, unless such policy, contract or deposit be taken out, made or assigned in writing for the benefit of such creditor.7

This statute clearly exempts the cash surrender value and any payments on a life insurance policy from creditor claims against either the insured or the beneficiary whenever the insured is a citizen or resident of New Mexico.

What is less clear is the meaning of the phrase “or made by any such insurance company with such citizen.” The Creditor urges this Court to interpret the reference to “such citizen” as a reference to the entire preceding clause “issued upon the life of a citizen or resident of the state of New Mexico.” In other words, it claims that the statute only exempts a policy [921]*921made by a New Mexico resident when that resident is also the policy’s insured. On the other hand, the Debtor argues that “such person” refers only to the phrase “a citizen or resident of the state of New Mexico.” Under the Debtor’s interpretation, the statute provides two exemptions: it exempts a policy issued on the life of New Mexico resident and it separately exempts a policy entered into by an insurance company with a New Mexico resident, whether or not the policy holder is an insured under the policy.

Whenever a statute is susceptible to two interpretations, courts attempt to ascertain the intent of the legislature, either through legislative history, when available, or by resort to general principles of statutory construction.8 There is no legislative history available to shed light on this 1937 statute. And, although it has remained largely unchanged since its enactment, there are no published New Mexico state court cases interpreting this specific language. So this Court must attempt to predict how the courts of New Mexico would interpret the statutory language “based on [the statute’s] language, on the decisions of other state appellate courts, and on the evident purposes of the statute.”9 Unfortunately, there are no other insurance policy exemption statutes in other states with a similar “made with such citizen” phrase. In terms of rules of statutory construction, New Mexico has adopted the “Uniform Statute and Rule Construction Act,”10 which provides that “the meaning of a word or phrase that is not defined in a statute is determined by its context, the rules of grammar and common usage.”11 The New Mexico Supreme Court has further instructed:

In addressing issues of statutory interpretation, we must determine and effectuate the intent of the legislature, using the plain language of the statute as the primary indicator of legislative intent. The words of a statute, including terms not statutorily defined, should be given their ordinary meaning absent clear and express legislative intention to the contrary. No part of a statute should be construed so that it is rendered surplusage.12

In terms of considering the “evident purposes of the statute,” the Court notes that New Mexico courts have held that their exemption statutes are to be interpreted “to effect their humanitarian purposes [and, therefore,] must be liberally construed in favor of the claimant of an exemption.”13 Moreover, the courts in New Mexico have generally interpreted this life insurance exemption statute as “broad and expansive. It does not limit the type of payment, form of payment, or person to receive the payment.”14

Applying these principles to the present matter, we hold that the bankruptcy court properly interpreted this lan[922]*922guage.

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Cite This Page — Counsel Stack

Bluebook (online)
482 B.R. 918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/res-ga-memorial-llc-v-foah-in-re-foah-bap10-2012.