Thomas Crow v. United States Bankruptcy Court for the District of Wyoming - Cheyenne

• Court: Bankruptcy Appellate Panel of the Tenth Circuit
• Decided: November 26, 2019
• Docket: 18-86
• Status: Published

Opinion

NOT FOR PUBLICATION* UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE TENTH CIRCUIT _________________________________

IN RE THOMAS CROW, BAP No. WY-18-083 BAP No. WY-18-086 Debtor.

__________________________________

RADIANCE CAPITAL RECEIVABLES Bankr. No. 17-20280 NINETEEN LLC, STEVEN R. BAILEY, Chapter 7 Chapter 7 Trustee,

Appellants, OPINION v.

THOMAS CROW, aka Tom Crow and CAROL-ANN CROW,

Appellees.

_________________________________

Appeal from the United States Bankruptcy Court for the District of Wyoming

Before CORNISH, HALL, and LOYD,** Bankruptcy Judges. _________________________________

HALL, Bankruptcy Judge. * This unpublished opinion may be cited for its persuasive value, but is not precedential, except under the doctrines of law of the case, claim preclusion, and issue preclusion. 10th Cir. BAP L.R. 8026-6. ** Honorable Janice D. Loyd, U.S. Bankruptcy Judge, United States Bankruptcy Court for the Western District of Oklahoma, sitting by designation. _________________________________

Several years prior to filing for bankruptcy protection, the chapter 7 debtor and his

non-debtor spouse sold their marital home held as tenants by the entirety. Some of the net

proceeds were used to purchase a new marital home, and the remainder were transferred

to a joint investment account, both of which are also purportedly held as tenants by the

entirety. In his bankruptcy case, debtor claimed the marital home and the investment

account as exempt under Wyoming’s tenancy by entireties exemption. The chapter 7

trustee and a creditor objected to debtor’s claimed exemptions.

Balancing the interests of federal bankruptcy and state property law, the

Bankruptcy Court overruled the objections, concluding one-half of the entireties

properties belonged to the non-debtor spouse, and debtor’s one-half of the entireties

property was potentially subject to administration as non-exempt. The Bankruptcy Court

further ruled the non-exempt portion was dependent upon joint debt, and the trustee was

required to pursue turnover of the entireties property in an adversary proceeding. Both

the chapter 7 trustee and the creditor appealed. Finding no error in the Bankruptcy

Court’s decision, we AFFIRM.

I. FACTUAL BACKGROUND

Thomas Crow (“Debtor”), a retired Australian professional golfer, founded Cobra

Golf in the 1970s. After making a fortune manufacturing and selling innovative golf

clubs, Debtor sold the business in the mid-1990s and moved to Jackson, Wyoming where

he lived with his wife, Carol-Ann Crow (individually, “Mrs. Crow,” and collectively with

Debtor, the “Crows”). The Crows resided at North Deland Drive in Jackson, and title to

2 the Deland Drive residence was vested in the Crows as husband and wife, tenants by the

entirety, according to Wyoming law. 1

At some point the Crows suffered a financial crisis, and in 2008, their daughter and

son-in-law, Annabelle and Jeff Marvin (individually, “Mrs. Marvin” or “Mr. Marvin,”

collectively, the “Marvins”), loaned them $1,000,000. 2 The loan was made by Marvin

Investment Partners to various trusts the Crows had created. The purpose of the loan was

to pay expenses and enable the Crows to remain in their home.3

On April 29, 2015, the Crows sold the Deland Drive residence for $10,000,000,

realizing $5,171,813.61 in net proceeds from the sale. The Crows then purchased a

residence at North Centennial Drive, also in Jackson, Teton County, Wyoming, for

$1,550,000.4 The Crows took out a mortgage for $500,000 against the Centennial Drive

residence and paid the rest of the purchase price with proceeds from the sale of the

Deland Drive residence.

Advanced in age, the Crows sought the assistance of the Marvins to invest the

remaining Deland Drive sale proceeds. With Mr. Marvin’s help, the Crows opened a

brokerage account (the “Account”) with Fidelity Investments (“Fidelity”). In the

Application for a New Fidelity Account, the Crows indicated “Account Type” as

1 Exhibit 3 (Warranty Deed), in Appellant’s App. at 888. 2 Memorandum Decision on Debtor’s Motion to Allow Use of Portion of Exempt Funds and Objections to Exemptions Filed by Chapter 7 Trustee and Radiance Capital Receivables Nineteen, L.L.C. at 3-4, in Appellant’s App. at 108-09. 3 Id. at 4, in Appellant’s App. at 109. 4 The Centennial Drive marital residence is held by the Crows as tenants by the entirety. 3 “TENANTS BY THE ENTIRETY.”5 However, on the application, tenants by the entirety

is crossed out and beside it, “Thomas L. Crow And Carol Ann Crow, Husband & Wife, as

tenants by the entirety,” is handwritten.6 Mrs. Marvin had the authority to act on behalf of

the Crows with respect to the Account as she was appointed attorney-in-fact under a

Fidelity Durable Power of Attorney. As of May 31, 2015, the Account had a balance of

approximately $3.5 million.

During 2015 and 2016, Mrs. Marvin transferred almost $900,000 from the

Account directly to the Marvins or to third parties for their benefit.7 The Marvins

considered these disbursements to be repayment of the $1,000,000 loan made to the

Crows in 2008 by Marvin Investment Partners.8

In late 2016, creditor Radiance Capital Receivables Nineteen, LLC (“Radiance”)

began attempting to collect on a judgment against Debtor. The judgment stemmed from

Debtor’s personal guarantee of a $1.5 million promissory note made by The Thomas L.

Crow Family Limited Partnership.9 Upon default, the holder of the note, 2010-1

RADC/CADC VENTURE, LLC, obtained a judgment against Debtor in Routt County,

Colorado District Court on July 5, 2013.10 The judgment was subsequently assigned to

5 Debtor’s Replacement Exhibit 12, at 1, in Appellant’s App. at 924. 6 Id., in Appellant’s App. at 924. 7 Memorandum Decision on Debtor’s Motion to Allow Use of Portion of Exempt Funds and Objections to Exemptions Filed by Chapter 7 Trustee and Radiance Capital Receivables Nineteen, L.L.C. at 4, in Appellant’s App. at 109. Specifically, the transfers from the Account in 2015 totaled $532,000, and the transfers for 2016 totaled $357,820. The transfers were either direct payments to the Marvins or payment of debts on the Marvins’ behalf, such as credit card bills or school tuition for their children. 8 Id.; Tr. at 149-50, in Appellant’s App. at 427-28. 9 Exhibit O (Proof of Claim) at 5, in Appellant’s App. at 582. 10 Id., in Appellant’s App. at 582. 4 Radiance who registered it in Teton County, Wyoming. Radiance then served a notice of

garnishment on Fidelity attempting to reach assets in the Account, which prompted

Debtor to file for bankruptcy protection on April 18, 2017. Steven R. Bailey (“Trustee”)

was appointed as chapter 7 trustee in Debtor’s case.

Debtor listed the Centennial Drive residence, valued at $1,282,706, and the

Account, valued at $2,516,514.97, on Schedule B. On Schedule C, Debtor claimed both

the Centennial Drive residence and the Account as 100% exempt pursuant to 11 U.S.C.

§ 522(b)(3)(B)11 and Wyoming’s tenancy by the entirety exemption.12 Trustee and

Radiance objected to Debtor’s claimed exemption in the Account, arguing the exemption

did not apply because the Account was not created as a tenancy by the entirety.13 Further,

both objecting parties argued that, even if the Account was created as a tenancy by the

entirety, Debtor and Mrs. Crow had subsequently severed the Account’s tenancy by the

entirety status and forfeited its associated protections.

The Bankruptcy Court conducted an evidentiary hearing on the objections to

exemption on October 31, 2017. After hearing closing arguments by telephone and taking

the matter under advisement, the Bankruptcy Court issued a memorandum decision

overruling the objections to Debtor’s claimed exemption on April 4, 2018 (the

11 All future references to “Code,” “Section,” and “§” are to the Bankruptcy Code, Title 11 of the United States Code, unless otherwise indicated. 12 Schedule C, in Appellant’s App. at 72. 13 Trustee’s Objection to Certain Exemptions Claimed by the Debtor, in Appellant’s App. at 173; Objection to Debtor’s Claim of Exemptions, in Appellant’s App. at 204. Trustee and Radiance also lodged objections to Debtor’s claimed exemption in the Centennial Drive residence. 5 “Exemption Order”).14 In the Exemption Order, the Bankruptcy Court found the Account

application evidenced Debtor’s intent to create a tenancy by the entirety and, therefore,

concluded Wyoming’s tenancy by the entirety exemption applied to the Account. The

Bankruptcy Court also found the transfers to the Marvins and other Account activity did

not sever the Account’s entireties status. As a result, the Bankruptcy Court “allow[ed] the

Debtor’s tenants by the entirety exemption as to the [Account] and the Centennial [Drive]

real property.”15 However, the Bankruptcy Court acknowledged that “[e]ntireties property

is not exempt from process under Wyoming law from claims against both spouses.

Therefore, to ‘the extent that joint creditors existed at the filing of the bankruptcy petition,

the entireties share is not exempt.’”16 Because the parties sought to address the amount of

joint debt in a separate proceeding, the Bankruptcy Court reserved such determination

and ordered that “the amount of the exemption will be resolved upon a determination of

the amount of joint debt.”17

Debtor filed a Motion for Further Findings and/or to Clarify Memorandum

Decision (the “Motion for Clarification”) pursuant to Federal Rules of Bankruptcy

14 Memorandum Decision on Debtor’s Motion to Allow Use of Portion of Exempt Funds and Objections to Exemptions Filed by Chapter 7 Trustee and Radiance Capital Receivables Nineteen, L.L.C., in Appellant’s App. at 106. 15 Id. at 10, in Appellant’s App. at 115. With respect to the Centennial Drive residence, the Bankruptcy Court stated that Trustee and Radiance “initially disputed the exemption, but at the hearing conceded it as allowed, subject to Debtor and Mrs. Crow’s joint debt.” Id. at 2, in Appellant’s App. at 107. 16 Id. at 9-10, in Appellant’s App. at 114-15 (citing In re Wenande, 107 B.R. 770, 774 (Bankr. D. Wyo. 1989). 17 Id. at 10, in Appellant’s App. at 115. 6 Procedure 9023 and 7052.18 Mrs. Crow joined in the Motion for Clarification.19 The

Motion for Clarification asserted there was no joint debt left to be determined because

there were no timely filed proof of claims asserting joint liabilities.20 Trustee objected to

Debtor’s Motion for Clarification, arguing there was a total of $1,807,344.80 in joint debt

based on the mortgage secured by the Centennial Drive residence and the promissory note

to Marvin Investment Partners,21 thereby rendering such portion of the Account non-

exempt.22 Trustee also filed his Motion for Entry of an Order Requiring the Transfer of

$1,807,344.80 in Funds from the Fidelity Account Based on the Court’s April 4, 2018

Memorandum Decision (the “Turnover Motion”), requesting turnover of that amount for

payment of joint debts.23

The Bankruptcy Court issued two orders in response to these motions. First, the

Bankruptcy Court amended its Exemption Order, clarifying Mrs. Crow was “entitled to

one-half of the exempt entireties property before distribution to the estate. The portion of

the other half that is subject to administration as non-exempt will be based on the amount

18 Appellee Debtor’s App. at 22. All future references to “Bankruptcy Rule” are to the Federal Rules of Bankruptcy Procedure. 19 Joinder in Motion for Further Findings and/or to Clarify Memorandum Decision, in Appellee Debtor’s App. at 26. 20 The Trustee’s Amended Opposition to (1) the Debtor’s Motion for Further Findings and/or to Clarify Memorandum Decision, and (2) Carol-Ann Crow’s Joinder in the Debtor’s Motion at 8, in Appellant’s App. at 1083. 21 The Trustee filed a proof of claim on behalf of Marvin Investment Partners for $1,320,624. Proof of Claim, in Appellant’s App. at. 1095. 22 The Trustee’s Amended Opposition to (1) the Debtor’s Motion for Further Findings and/or to Clarify Memorandum Decision, and (2) Carol-Ann Crow’s Joinder in the Debtor’s Motion at 16, in Appellant’s App. at 1091. 23 Appellant’s App. at 1119. Presumably, Trustee seeks to administer the whole amount that he contends is nonexempt entireties property from the Account. 7 of the joint debt,” which is to be determined (the “Amended Exemption Order”).24

Second, the Bankruptcy Court denied the Turnover Motion and required Trustee to seek

turnover of the entireties property through an adversary proceeding (the “Adversary

Order”).25 The Bankruptcy Court concluded, because the assets involved were held in

tenancy by the entirety by Debtor and Mrs. Crow, a non-debtor, Rule 7001(1) required

Trustee to bring an adversary proceeding “to recover money” pursuant to § 542(a).26 Both

Radiance and Trustee now appeal these determinations by the Bankruptcy Court.

II. JURISDICTION AND STANDARD OF REVIEW

Radiance and Trustee each filed appeals of the Exemption Order, the Amended

Exemption Order, and the Adversary Order. The two appeals were companioned for

purposes of briefing and argument, and the Court allowed Mrs. Crow to intervene as an

appellee in both appeals. 27

“With the consent of the parties, this Court has jurisdiction to hear timely-filed

appeals from ‘final judgments, orders, and decrees’ of bankruptcy courts within the Tenth

Circuit”28 and “with leave of the court, from other interlocutory orders and decrees.”29

24 Amended Memorandum Decision on Debtor’s Motion to Allow Use of Portion of Exempt Funds and Objections to Exemptions Filed by Chapter 7 Trustee and Radiance Capital Receivables Nineteen, L.L.C. at 15, in Appellant’s App. at 130. 25 Order Denying Trustee[’s] Motion for Turnover of the Fidelity Account, Without Prejudice, in Appellant’s App. at 131. 26 Fed. R. Bankr. P. 7001(1). 27 After the appeals were filed, Trustee, Debtor, and Mrs. Crow reached an agreement allowing Mrs. Crow to use all but $1,807,344.80 of the funds in the Account, which the Bankruptcy Court approved. See Order Granting Stipulation to Resolve, without Prejudice, Carol-Ann Crow’s Motion for Release of Funds, in Appellant’s App. at 1286. 28 Straight v. Wyo. Dep’t of Trans. (In re Straight), 248 B.R. 403, 409 (10th Cir. BAP 2000) (first quoting 28 U.S.C. § 158(a)(1), and then citing 28 U.S.C. 8 After entering an order to show cause regarding finality of the appealed orders and

considering the responses thereto, a motions panel of this Court concluded the Adversary

Order was a final order,30 but that the Exemption Order and Amended Exemption Order

were interlocutory. However, the motions panel granted leave to appeal pursuant to 28

U.S.C. § 158(a)(3), concluding the appeals addressed a controlling question of law as to

which there are grounds for differing opinions and immediate appeal would materially

advance the ultimate termination of the litigation.31 Neither party in this case elected for

this appeal to be heard by the United States District Court pursuant to 28 U.S.C. § 158(c).

Accordingly, this Court has jurisdiction over these appeals.32

§ 158(b)(1), (c)(1) and Fed. R. Bankr. P. 8002). 29 28 U.S.C. § 158(a)(3). 30 Order Allowing Appeals to Proceed, in Appellant’s App. at 1289. The panel consisted of Chief Judge Nugent and Judges Michael and Jacobvitz. (“This Court previously held that an order denying a motion as procedurally improper and requiring a party to pursue claims in an adversary proceeding, as opposed to a contested matter, “is a final order for purposes of appeal.” Staker v. Jubber, UT-12-072 (10th Cir. BAP Oct. 25, 2012)). 31 Id. 32 In her brief (BAP ECF 50), Mrs. Crow argues the notices of appeal were untimely with respect to the interlocutory Exemption and Amended Exemption Orders because they did not merge into the final Adversary Order. However, a motions panel of this Court entered an Order Allowing Appeals to Proceed. In light of the following facts : (i) the Exemption Order was previously timely appealed but was not final (see BAP cases WY-18-060 and WY-18-061); (ii) Mrs. Crow failed to argue that the Exemption and Amended Exemption Orders did not merge into the Adversary Order in her response (BAP ECF 17) to the Court’s Order to Show Cause Why Appeal Should not be Dismissed as Interlocutory; (iii) the Exemption and Amended Exemption Orders concern the extent to which exemption of the Account is allowed which is to be determined in the adversary; and (iv) the merits of the Bankruptcy Court’s orders are being affirmed and such rulings are favorable to Mrs. Crow, we decline to further address Mrs. Crow’s argument that our review should be limited to the Adversary Order. 9 “For purposes of standard of review, decisions by judges are traditionally divided

into three categories, denominated questions of law (reviewable de novo), questions of

fact (reviewable for clear error), and matters of discretion (reviewable for ‘abuse of

discretion’).”33 Our de novo review of legal issues requires an independent determination,

giving no special weight to the bankruptcy court’s decision.34 We review a bankruptcy

court’s factual findings under the clearly erroneous standard. A factual finding is “clearly

erroneous” when “it is without factual support in the record, or if the appellate court, after

reviewing all the evidence, is left with the definite and firm conviction that a mistake has

been made.”35 Mixed questions of law and fact arise “‘when the facts are admitted or

established and the law is undisputed,’ and the issue is only whether the facts meet the

statutory standard.”36 “Where the mixed question involves primarily a factual inquiry, the

clearly erroneous standard is appropriate. If, however, the mixed question primarily

involves the consideration of legal principles, then a de novo review by the appellate

court is appropriate.”37

Here, the issues on appeal presented primarily involve legal issues. The validity of

Debtor’s claimed state law exemption with respect to the Account property is reviewed de

33 Pierce v. Underwood, 487 U.S. 552, 558 (1988); Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1370 (10th Cir. 1996). 34 Salve Regina College v. Russell, 499 U.S. 225, 238 (1991). 35 Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d 1182, 1185 (10th Cir. 1990) (quoting LeMaire ex rel. Le Maire v. United States, 826 F.2d 949, 953 (10th Cir. 1987)). 36 In re Tri-State Equip., Inc. 792 F.2d 967, 970 (10th Cir. 1986) (citing Supre v. Ricketts, 792 F.2d 958, 961 (10th Cir. 1986)). ). 37 Supre v. Ricketts, 792 F.2d at 961. 10 novo,38 without deferring to the Bankruptcy Court’s interpretation of state law.39

Likewise, we also review the Bankruptcy Court’s conclusion that an adversary

proceeding was required, i.e., interpretation and application of the Bankruptcy Rules, de

novo.40

III. ANALYSIS

Radiance and Trustee each raise several issues on appeal, some of them directly

related to issues actually decided by the Bankruptcy Court and some of them related to

questions that are yet to be resolved in the adversary proceeding on turnover.41

Additionally, arguments made by Debtor and Mrs. Crow in response to Radiance’s and

Trustee’s asserted errors on appeal go beyond the scope of the Bankruptcy Court’s

decisions.42 As our jurisdiction is confined to judgments, orders, or decrees entered by the

Bankruptcy Court, we will not address those issues, or any sub-issues that are part and

38 In re Jennings, No. WY-17-002, 2017 WL 5591463, at *2 (10th Cir. BAP Nov. 21, 2017) (unpublished), aff’d 739 F. App’x 505 (10th Cir. 2018) (citing In re Borgman, 698 F.3d 1255, 1259 (10th Cir. 2012) (Validity of claimed state law exemption is reviewed de novo, without deferring to the bankruptcy court’s interpretation of state law.)). 39 In re Borgman, 698 F.3dat 1259 (quoting In re Wagers, 514 F.3d 1021, 1024 (10th Cir. 2007)). 40 Id.. 41 For example, Radiance argues Trustee is entitled to at least one-half of the Account (see Appellant’s Opening Brief, BAP ECF 40, at 21), and Trustee argues the undisputed amount of the joint debt is $1,807,344.80 (see Co-Appellant’s Brief, BAP ECF 35, at 44). 42 Debtor argues there is no debt to be administered by the Trustee from the tenancy by the entirety property. Further, both Debtor and Mrs. Crow argue that Trustee may not administer the Centennial Drive residence because the debt thereon is fully secured (see Appellee Thomas Crow’s Brief, BAP ECF 52, at 14, 16-17 and Appellee’s Brief, BAP ECF 50, at 40). 11 parcel thereof, that the Bankruptcy Court has specifically reserved for determination in

the adversary proceeding.43

Additionally, because the parties do not appear to view the Bankruptcy Court’s

decisions in precisely the same way, we find it essential to set forth our interpretation of

the Bankruptcy Court’s Exemption Order, Amended Exemption Order, and Adversary

Order before analyzing the parties’ arguments on appeal. We summarize the Bankruptcy

Court’s conclusions as follows: (i) the Crows hold the Centennial Drive residence as

tenants by the entirety, and it is, therefore, potentially exempt under § 522(b)(3)(B);44 (ii)

on the petition date, the Crows held the Account as tenants by the entirety, and it is,

therefore, potentially exempt under § 522(b)(3)(B); (iii) Mrs. Crow, as a non-filing

spouse, is entitled to have her one-half interest in the entireties property separated from

the bankruptcy estate prior to administration; (iv) Debtor’s one-half interest in the

entireties property is subject to administration by Trustee to the extent of the amount of

joint debt owed by the Crows; (v) the amount of the joint debt and, therefore, the exempt

amount of Debtor’s one-half interest in the entireties property was reserved for

determination;45 and (vi) Trustee must pursue turnover of Debtor’s one-half interest in the

43 Contrary to Debtor’s assertion, it is not presumed that this Court decided to resolve the issue of joint debt on the merits simply because his Motion to Strike Portion of Co-Appellant’s (Trustee’s) Brief (BAP ECF 39) was referred to this merits panel and not ruled upon by a motions panel (BAP ECF 46). Further, because he subsequently withdrew it (BAP ECF 48), Debtor’s motion to strike is DENIED as moot. 44 On appeal, neither Radiance nor Trustee challenge the exemption of the Centennial Drive residence, in and of itself, as entireties property. 45 As mentioned above, Trustee argues the joint debt has been definitively established as $1,807,344.80, and Debtor argues there is no joint debt. But the amount of joint debt and, therefore, the amount of the entireties exemption, was clearly reserved for determination in a subsequent proceeding and is not before us on appeal. 12 entireties property by way of an adversary proceeding because Mrs. Crow still retains an

interest in such property. We decline to address the issue of whether the portion of

entireties property subject to administration is available to all creditors of the estate or

only joint creditors.46

A. The Bankruptcy Court Did Not Err in Concluding the Account was Tenancy by the Entirety Property Eligible for Exemption Pursuant to § 522(b)(3)(B).

“Property interests are created and defined by state law[,]” and unless some federal

interest requires otherwise, interests of parties in bankruptcy proceedings are analyzed

under state law.47 Additionally, the scope and application of state exemptions are defined

by the state courts, and we are bound by their interpretations.48 Moreover, our

interpretation of exemption statutes must further the spirit of such laws, and we “must be

‘guided by the general principle that exemption statutes are to be liberally construed so as

to effect their beneficent purposes.’”49

1. The Account was Established and Held by Debtor and Mrs. Crow as Tenants by the Entirety.

“Tenancy by the entirety” is a form of concurrent property ownership unique to

spouses. The term results from the fact that spouses “are seized of the entirety; neither can

46 In absence of a determination of joint debt, and therefore, whether there is in fact entireties property subject to administration by Trustee, a decision regarding distribution is premature. We note, however, that § 522(k) provides, with limited exceptions, “[p]roperty that the debtor exempts under this section is not liable for payment of any administrative expense.” See Law v. Siegel, 571 U.S. 415 (2014); In re Holley, 661 F. App’x 391 (6th Cir. 2016). 47 Butner v. United States, 440 U.S. 48, 55 (1979). 48 In re Borgman, 698 F.3d 1255, 1259 (10th Cir. 2012). 49 In re Gregory, 245 B.R. 171, 173 (10th Cir. BAP 2000) (quoting Royal v. Pancratz (In re Pancratz), 175 B.R. 85, 93 (D. Wyo. 1994)). 13 sever the union of interest without the concurrence of the other; each and both own the

whole estate during their lives, and upon the death of either the survivor continues to own

the whole estate; each is seized of an indivisible entirety; so neither has a separate interest

therein that can be aliened.”50 The original purpose of this form of co-ownership was “to

protect a wife from the husband who might irresponsibly lose the family home or other

assets.”51

At early common law, tenancy by the entirety was the most prevalent form of

concurrent ownership of property by married couples.52 Today, however, tenancy by the

entirety and the protection it affords spouses are recognized in only one-half of the states

and the District of Columbia, and the law varies significantly from state to state. For

example, a subset of those states recognizing tenancy by the entirety do so only with

respect to real property.53 Further, the means of establishing a tenancy by the entirety runs

the gamut from a presumption when property is held jointly by spouses to the requirement

that the parties must specifically express intention in writing to take or hold property as

tenants by the entirety. Additionally, of the states recognizing tenancy by the entirety, not

all provide that entireties property is exempt from process for the debt of only one

spouse.54 Thus, we necessarily begin by discussing Wyoming tenancy by the entirety

50 Peters v. Dona, 54 P.2d 817, 825 (Wyo. 1936). See also Zubrod v. Duncan (In re Duncan), 329 F.3d 1195, 1201 (10th Cir. 2003). 51 In re Bellingroehr, 403 B.R. 818, 820 (Bankr. W.D. Mo. 2009). 52 1 John Tingley, et al., Marital Property Law § 1:2 (2d ed. June 2019).) 53 In re Jaffe, 932 F.3d 602, 606 (7th Cir. 2019); 1 Edward F. Koren, Estate, Tax & Pers. Fin. Planning § 10:6| (September 2019). See also W.W. Allen, Estates by Entirety in Personal Property, 64 A.L.R.2d 8 (2019).,. 54 See 1 John Tingley, et al., Marital Property Law § 2:6 (2d ed. June 2019).) J.H. Cooper, Interest of Spouse in Estate by Entireties as Subject to Satisfaction of His or 14 law.

Wyoming law recognizes co-ownership of property by a husband and wife as

tenants by the entirety with respect to both real and personal property.55 The plain

language of Wyoming Statute § 34-1-140 evidences the Wyoming legislature’s intent to

allow citizens to hold personal property as tenants by the entirety by providing that a

tenancy by the entirety “as to any interest in real or personal property may be established

. . . by designating in the instrument . . . the names of such . . . tenants by the entirety.”56

The Wyoming Supreme Court also interprets the statute as Wyoming’s recognition of

“tenancies by the entirety in real or personal property.”57 If spouses hold real or personal

property as tenants by the entirety, under Wyoming law, such property is generally not

subject to legal process to satisfy a debt of only one spouse.58

The method of establishing a tenancy by the entirety in Wyoming has evolved over

time. Historically, the Wyoming Supreme Court “accept[ed] the presumption that a

conveyance to husband and wife, without saying anything more, intend[ed] the creation

of a tenancy by the entireties.”59 More recently, however, the Wyoming Supreme Court

Her Individual Debt, 75 A.L.R. 2d 1172 (2019). 55 In re Anselmi, 52 B.R. 479, 485 (Bankr. Wyo. 1985) (citing Fehling v. Cantonwine, 379 F. Supp. 1250 (D. Wyo. 1974)). 56 Wyo. Stat. § 34-1-140 (1979) (emphasis added). 57 Lurie v. Blackwell, 51 P.3d 846, 851, n.3 (Wyo. 2002) (first citing Oatts v. Jorgenson, 821 P.2d 108, 114 (Wyo. 1991), then citing Choman v. Epperly, 592 P.2d 714, 715-19 (Wyo. 1979), then citing Nat’l Bank of Newcastle v. Wartell, 580 P.2d 1142, 1144 (Wyo. 1978); and finally citing Wyo. Stat. § 34-1-140 (2001)). 58 United States v. Lain, No. 17-CV-113, 2019 WL 2051960, at *8 (D. Wyo. Feb. 5, 2019 (unpublished) (citing Baker v. Speaks, 334 P.2d 1215,-1221(Wyo. 2014) and Talbot v. United States, 850 F. Supp. 969, 975 (D. Wyo. 1994)). 59 Witzel v. Witzel, 386 P.2d 103, 105 (Wyo. 1963). 15 and the Wyoming legislature have moved away from the presumption of creation of

tenancy by the entirety or joint tenancy between husband and wife in favor of a tenancy in

common when the conveyance is silent as to the classification of the concurrent estate.60

Specifically, the Wyoming Supreme Court has held, absent an express intention to create

a joint tenancy, “a tenancy in common was presumed.”61 The Wyoming legislature

embraced this view by enacting Wyoming Statute § 34-1-140 (emphasis added), which

provides,

A joint tenancy or a tenancy by the entirety as to any interest in real or personal property may be established by the owner thereof, by designating in the instrument of conveyance or transfer, the names of such joint tenants or tenants by the entirety, including his own, without the necessity of any transfer or conveyance to or through a third person.62

The Wyoming Supreme Court has since held that § 34-1-140 “reflects a legislative

intention that ‘joint tenancies’ and ‘tenancies by the entireties’ are created by the use of

one or the other of those phrases.”63 “Therefore, the current state of Wyoming law

presumes a conveyance to two individuals that is silent as to the classification of the

concurrent estate they hold produces a tenancy in common, and this result is so even if

those two individuals are husband and wife.”64

60 Lain, at 2019 WL 2051960, at *8 (citing Choman , 592 P.2d at 718.; Wyo. Stat. § 34-1-140 (1977)). 61 Choman, 592 P.2d at 718 (referencing the holding in Nussbacher v. Manderfeld, 186 P.2d 548 (Wyo. 1947)). 62 Wyo. Stat. § 34-1-140 (1977) (emphasis added). 63 In re Thomas, 199 P.3d 1090, 1095 (Wyo. 2009). 64 Lain, 2019 WL 2051960, at *8. 16 In Wambeke v. Hopkin,65 the Wyoming Supreme Court ruled as follows regarding

the creation of tenancy by the entirety:

In order to create in Wyoming a joint tenancy or tenancy by the entirety, in personal property, there must exist one of the following minimum requirements:

1. Each of the four unities of interest, time, title, and possession must be present, with the added unity of person for a tenancy by the entirety; or

2. In the absence of one or more of the first four unities, it must be evident from the language of the instrument itself that the parties thereto intended to create a right of survivorship.66 Herein, the Bankruptcy Court, citing Wambeke, acknowledged that unity of possession

was missing but concluded the Account was held by the Crows as tenants by the

entirety.67 The Bankruptcy Court relied on the Account application that specifically states

the Account should be opened in the names of “Thomas and Carol Ann Crow, Husband &

Wife, as tenants by the entirety.”68 Inclusion of the phrase “tenants by the entirety” avoids

the presumption of a tenancy in common by expressly indicating the Crows’ intent.69

On appeal, as it did before the Bankruptcy Court, Radiance argues the Account

application is not the type of “instrument of conveyance or transfer” sufficient to

evidence Debtor’s intent to create a tenancy by the entirety. Radiance relies, in part, on In

65 372 P.2d 470 (Wyo. 1962). 66 Id. at 475-76 (emphasis added). 67 Although Wambeke is a 1962case, the second minimum requirement is consistent with Wyoming’s subsequent move away from presumption of a tenancy by the entirety. It requires express intent by the parties, and it is this requirement that the Bankruptcy Court relied on. 68 Debtor’s Replacement Exhibit 12, at 1, in Appellant’s App. at 924. 69 In re Thomas, 100 P.3d 1090, 1095 (Wyo. 2009). 17 re Anselmi70 to support its argument. In Anselmi, a debtor claimed a tenancy by the

entirety exemption with respect to four types of personal property: a contract for deed,

stock shares, a foreign trust, and household goods and artwork. Analyzing the different

types of assets, the bankruptcy court distinguished the household goods and artwork

because they were “personalty without instruments of title.”71 The bankruptcy court held

that the household goods and artwork did not meet the first of Wambeke’s minimum

requirements because there was no unity of interest and further did not meet Wambeke’s

second minimum requirement “because by the nature of the property there is no

‘instrument’ of title upon which an intent to create a right of survivorship may be

shown.”72 Accordingly, the bankruptcy court held the household goods and artwork were

not exempt as property held as tenants by the entirety.73

Analogously, Radiance argues the Account application is not an instrument of

conveyance or transfer and urges this Court to reject the Bankruptcy Court’s findings and

conclusions that the Account application created a tenancy by the entirety. While we

agree that the language of § 34-1-140 provides that tenancy by the entirety “may be

established” in “the instrument of conveyance or transfer,” Radiance’s interpretation and

focus on “conveyance” and “transfer” as modifiers of “instrument” is misplaced and

would unduly narrow the types of personal property that may be held by entireties.74

70 52 B.R. 479 (Bankr. D. Wyo. 1985). 71 Id. at 491. 72 Id. at 492. 73 Id. at 492. 74 The point is well illustrated by the facts of this case. Establishment of the Account did not strictly involve a conveyance or transfer. The Crows owned the Deland Drive marital residence as tenants by the entirety and proceeds from the sale of that 18 First, the statute provides that joint tenancy or tenancy by the entirety “may be

established” in an instrument of conveyance or transfer, not that it “must be established”

in such an instrument. Second, there is nothing to suggest that § 34-1-140 was enacted by

the Wyoming legislature in order to limit the types of property that may be held in

tenancy by the entirety or joint tenancy to only those involving an instrument of

conveyance or transfer.75 Instead, the very language of § 34-1-140 (“without the

necessity of any transfer or conveyance to or through a third person”) gives the

impression that its primary purpose is to eliminate the necessity of a strawman transaction

when one spouse is conveying property to himself and his spouse as tenants by the

entirety.76

Further, Radiance’s interpretation is inconsistent with the Anselmi bankruptcy

court’s explanation and description of the term “instrument.” Although neither Wyoming

statute nor Wyoming case law specifically defines the term instrument for these purposes,

the Anselmi bankruptcy court opined that:

marital residence are in the Account purportedly held as tenants by the entirety. The form of the property has changed, but it is owned by the same people in the same manner. 75 For example, Wyoming recognizes that bank accounts may be held in joint tenancy with right of survivorship, Fleig v. Estate of Fleig, 413 P.3d 638, 643-44 (Wyo. 2018), and such is established via the account agreement and/or account signature card, which are not technically instruments of transfer or conveyance. 76 Anselmi, 52 B.R. at 486, n.6 (“Section 34-1-140 was apparently intended to remedy the situation which existed at common law wherein one spouse could not convey to himself and his spouse to create an estate by the entirety. This disability necessitated a conveyance to a third party “strawman,” who would then reconvey the property to the husband and wife jointly. In most states which continue to recognize tenancy by the entirety, statutes similar to § 34-1-140, allow a tenancy by the entirety to be created by a direct conveyance from one spouse to both of them, thereby eliminating the “strawman” transaction.”). 19 a careful reading of Wambeke indicates that, in this context, the word [instrument] refers to those writings which give formal expression to a legal act or agreement for the purpose of creating, securing, modifying, or terminating a right. As used by the Wambeke court, “instrument” might include bills, bonds, conveyance, leases, mortgages, contract, promissory notes, deeds, and other similar writing whereby “chattel is embodied in a document.”77

Here, the Bankruptcy Court concluded the Account application – a formal written

document that embodies the chattel and expresses an agreement to create rights with

respect to that property – clearly and unmistakably evidenced “the Debtor’s intent to hold

the [A]ccount as tenants by the entirety.”78 We agree. The application that creates the

Account and establishes the rights of the parties thereto is unambiguous. Debtor

expressly stated his intent by using the language – “as tenants by the entirety” – thus

complying with the requirements the Wyoming law.79

Even if there were ambiguity, the Crows’ intent was further supported by Mr.

Marvin’s testimony that, in helping the Crows set up the Account, he recommended

Fidelity because it was one of the few brokerage firms allowing accounts to be held as

tenants by the entirety.80 The Bankruptcy Court’s conclusion is also bolstered by the fact

the Account was established with proceeds from the sale of the Deland Drive residence,

77 Id. at 492. 78 Amended Memorandum Decision on Debtor’s Motion to Allow Use of Portion of Exempt Funds and Objections to Exemptions Filed by Chapter 7 Trustee and Radiance Capital Receivables Nineteen, L.L.C. at 7, in Appellant’s App. at 122. 79 See Debtor’s Replacement Exhibit 13, in Appellant’s App. at 948. 80 Tr. at 191, in Appellant’s App. at 438. 20 which was held by the Crows as tenants by the entirety, and, therefore, the proceeds retain

their character.81

Radiance argues, notwithstanding the Crows’ designation of the Account as

entireties property, the terms of the Account contradict the nature of a tenancy by the

entirety as they allow for either party to act as if he or she is the sole owner of the

Account, without any approval from the joint owner. But, under the second minimum

requirement set forth in Wambeke and the Wyoming statute, the crucial consideration in

determining whether property is held as tenants by the entirety is the parties’ express

intention when ownership of the property is established. The additional terms contained

in the Account application are merely Fidelity’s boiler plate language and cannot override

the parties’ unambiguous intent.82 Wyoming law provides a tenancy by the entirety may

be established when the owner of the property designates the property as such in the

instrument or document establishing or creating ownership of the property. Therefore, it

is unnecessary to look beyond Debtor’s designation, “Thomas L. Crow And Carol Ann

Crow, Husband & Wife, as tenants by the entirety” to ascertain his intent.83 Accordingly,

81 Cates v. Daniels, 628 P.2d 862, 866 (Wyo. 1981) (“[T]he proceeds, or equity from the sale of marital property, remains entireties property.” (citing Ward Terry & Co. v. Hensen, 297 P.2d 213, 219-20 (Wyo. 1956))). See also In re Benzaquen, 555 B.R. 63 (Bankr. S.D. Fla. 2016) (regardless of whether bank account was entireties account, funds deposited in account traceable to sale of homestead property owned as tenants by the entirety did not lose their entireties character simply by virtue of being deposited in account). 82 See Fleig v. Estate of Fleig, 413 P.3d 638, 641 (Wyo. 2018) (citing In re Guardianship of Bratton, 344 P.3d 255, 257 (Wyo. 2015) (intention of the parties is controlling)). The Court would also point out that the cases cited by Radiance to support its argument in this regard were not decided under Wyoming law. See Appellant’s Opening Brief at 17-18. 83 Debtor’s Replacement Exhibit 12, at 1, in Appellant’s App. at 924. 21 we conclude the Bankruptcy Court did not err in determining the Account was held by

Debtor and Mrs. Crow as tenants by the entirety.

2. The Tenancy by the Entirety Status of the Account was Not Severed by Subsequent Transactions.

On appeal, Radiance argues, even if the application created an Account held as

tenants by the entirety, the Bankruptcy Court erred in concluding that subsequent acts by

Debtor, Mrs. Crow, and the Marvins did not sever the Account’s tenancy by the entirety

status. We disagree.

When an asset is held as tenants by the entirety, it generally continues during the

existence of the marital relationship, and neither spouse can sever the entirety without the

consent of the other.84 In Wyoming, a tenancy by the entirety “can be changed or severed

only by the voluntary joint acts of both parties or by operation of law, e.g., by divorce.”85

Aside from death or divorce, severing a tenancy by the entirety requires “mutual

agreement,” which “need not be explicit, but may be implied or inferred from the conduct

of the parties, provided the conduct is inconsistent with the continuation of an entirety

estate.”86 In Witzel v. Witzel,87 the Supreme Court of Wyoming highlighted the

requirement that a tenancy by the entirety can only be severed by joint rather than

unilateral action. It explained the difference between joint tenancy and tenancy by the

entirety is “the right which exists in a joint tenant, and not in a tenant by the entirety, to

84 Wambeke v. Hopkin, 372 P.2d 470, 474 (Wyo. 1962). 85 Id. (citing Hutcherson v. United States, 92 F. Supp. 168, 170 (D. Mo. 1950), aff’d, 188 F.2d 326 (8th Cir. 1951)). 86 41 C.J.S. Husband & Wife § 46 (citing In re Nagel, 298 B.R. 582 (Bankr. E.D. Va. 2003)). 87 386 P.2d 103 (Wyo. 1963). 22 sever the tenancy by his sole act as an inter vivos transaction, and thus destroy the right of

survivorship.”88

Radiance argues the Bankruptcy Court improperly ignored transfers from the

Account to the Marvins on account of a promissory note executed by the Crows in favor

of Marvin Investment Partners. While Marvin Investment Partners is technically the party

to the promissory note, the Bankruptcy Court found the Marvins loaned the Crows the

funds through Marvin Investment Partners. Nothing in the record suggests this finding

was clearly erroneous. Furthermore, Radiance fails to explain how transfers to the

Marvins result in severance of the tenancy by the entirety. Standing alone, the transfers to

the Marvins, in and of themselves, do not reflect Debtor and Mrs. Crow’s mutual or joint

agreement to terminate the entireties estate but rather an intent to repay a joint debt.

Radiance and Trustee also argue Debtor and Mrs. Crow mutually agreed to sever

the tenancy by the entirety by executing a stipulation allowing Mrs. Crow to withdraw all

but $1,807,344.80 of the funds from the Account.89 Though agreed to by counsel for

Debtor and Mrs. Crow, the joint stipulation was executed on December 21, 2018, more

than one year after the petition date. It is well established that a debtor’s right to an

exemption is determined on the petition date.90 Further, the language of the

88 Id. at 109 (quoting Dimock v. Corwin, 99 F.2d 799, 801 (2d Cir. 1938)). 89 The parties reference the Joint Stipulation to Resolve, without Prejudice, Carol-Ann Crow’s Motion for Release of Funds, in Appellant’s App. at 1286. 90 White v. Stump, 266 U.S. 310, 313 (1924) (“[T]he point of time which is to separate the old situation form the new in the bankrupt’s affairs is the date when the petition is filed.”); Mansell v. Carroll, 379 F.2d 682, 684 (10th Cir. 1967) (same); In re Hall, 441 B.R. 680, 685 (10th Cir. BAP 2009) (citing In re Robinson, 295 B.R. 147, 153 (10th Cir. BAP 2003)). 23 § 522(b)(3)(B) exemption itself refers to “interests of the debtor in property as of the

commencement of the case.” 91 Therefore, any agreement to modify the estate held in the

Account after the date of the petition has no bearing on the status of the entireties

exemption that was applicable on the petition date.

B. The Bankruptcy Court did not Err in Setting Aside One-Half of the Entireties Property as Mrs. Crow’s Interest before Distribution by the Estate.

Having concluded that the Bankruptcy Court did not err in holding that the

Account is tenancy by the entirety property, we now address Radiance and Trustee’s

asserted errors regarding the treatment of the entireties property in the bankruptcy case.

1. Tenancy by the Entirety Property in Bankruptcy Generally

The reported case law involving tenancy by the entirety property in bankruptcy,

like state law regarding tenancy by the entirety, varies widely and is difficult to reconcile.

The treatment of entireties property in bankruptcy necessarily depends heavily on the

facts of each case because numerous variables are in play. These might include, but are

not limited to, whether the bankruptcy case is that of an individual debtor or joint debtors,

whether the bankruptcy case is filed under chapter 7 or chapter 13, the type of property

that is held in tenancy by the entirety and whether it is partitionable (e.g., a residence

versus a bank account), whether the joints debts relate to the tenancy by the entirety

property, and whether the joint debts are secured versus unsecured. As the Fourth Circuit

91 See In re Hamacher, 535 B.R. 180, 187 (Bankr. E.D. Mich. 2015) (debtor was entitled to claim exemption with respect to realty held in tenancy by the entirety notwithstanding that debtor’s spouse died during administration of the case vesting property in debtor alone). 24 Court of Appeals has opined, the question of how to deal with property held by debtors as

tenants by the entirety is a “bedeviling issue in bankruptcy law.”92 We wholeheartedly

concur with this sentiment.

Although we analyze the property interests of parties in bankruptcy proceedings

under state law,93 once that state law determination is made, courts “must still look to

federal bankruptcy law to resolve the extent to which that interest is property of the

estate.”94 At least three sections of the Bankruptcy Code specifically come into play in the

tenancy by the entirety context. First, under § 541(a)(1), “all legal and equitable interests

that a debtor holds in property at the commencement of a bankruptcy case” are included

in the bankruptcy estate. The Code’s broad definition of the estate includes a debtor’s

interest in property held in tenancy by the entirety.95 Thus, it would appear that all

tenancy by the entirety property in which a debtor has an interest comes into the

bankruptcy estate pursuant to § 541 because the debtor has an interest in the whole

property.96

92 In re Bunker, 312 F.3d 145, 148 (4th Cir. 2002). Additionally, one bankruptcy law professor has stated that “the law of administering [entireties property is] extraordinarily complex – as complex as any bankruptcy issue I have ever encountered.” David Gray Carlson, The Federal Law of Property: The Case of Inheritance Disclaimers and Tenancy by the Entireties,, 75 Wash. & Lee L. Rev. 3 (Winter 2018). 93 Butner v. United States, 440 U.S. 48, 55 (1979). 94 Cohen v. Chernushin (In re Chernushin), 911 F.3d 1265, 1269 (10th Cir. 2018) (quoting Parks v. FIA Card Servs., N.A. (In re Marshall), 550 F.3d 1251, 1255 (10th Cir. 2008)). 95 In re Jaffe, 932 F.3d 602, 607 (7th Cir. 2019); In re Brannon, 476 F.3d 170, 174 (3d Cir. 2007). 96 Talbot v. UnitedStates, 850 F. Supp. 969, 972-73 (D. Wyo. 1994) (citing Peters v. Dona, 54 P.2d 817, 825 (Wyo. 1936)). 25 However, § 522(b)(3)(B)97 exempts “any interest in property in which the debtor

had an interest as a tenant by the entirety [ ], to the extent that interest as a tenant by the

entirety is exempt from process under applicable nonbankruptcy law.”98 “In Wyoming,

property held as tenants by the entirety cannot be executed upon to satisfy a judgment [or

debt] against only the husband or the wife.”99 Thus, the amount of a couple’s joint debts

potentially interacts with the tenancy by the entirety exemption under § 522(b)(3)(B).100

But Congress, well aware of the complex problems arising when fewer than all co-

owners of property have filed for bankruptcy protection, also enacted § 363(h), (i), and

(j). These provisions allow a trustee to partition101 co-owned property in which the debtor

has an undivided interest as a tenant in common, joint tenant, or tenant by the entirety. If

partition is not feasible, the trustee may, subject to certain hurdles and limitations, sell the

property and divide the proceeds of the sale between the estate and the co-owners.

Specifically, § 363(j) provides:

After a sale of property to which subsection . . . (h) of this section applies, the trustee shall distribute to the debtor’s spouse or the co- owners of such property, as the case may be, and to the estate, the proceeds of such sale, less the costs and expenses, not including any

97 Section 522(b)(3)(B) was previously denoted as § 522(b)(2)(B). 98 In re Jennings, No. WY-17-002, 2017 WL 5591463, at *1 (10th Cir. BAP Nov. 21, 2017) (unpublished), aff’d 739 F. App’x 505 (10th Cir. 2018) (unpublished). 99 Baker v. Speaks, 295 P.3d 847, 858-59 (Wyo. 2013) (multiple citations omitted). 100 Jennings, 2017 WL 5591463, at *5 (quoting In re Wenande, 107 B.R. 770, 774 (Bankr. D. Wyo. 1989)).; In re Welty, 217 B.R. 907, 911 (Bankr. D. Wyo. 1998) (holding property owned as tenancy by the entirety is only exempt if equity exceeds the total amount of joint debt). 101 Partition means to divide the property into the cotenants’ respective fractional shares. See generally In re Dahlgren, 418 B.R. 852, 859 (Bankr. D. N.J. 2009). 26 compensation of the trustee, of such sale, according to the interests of such spouse or co-owners, and of the estate.102

Although each spouse holding property as a tenant by the entirety is considered to

own the whole estate – an indivisible entirety – during his or her life, and neither has a

separate interest therein that can be alienated,103 courts have recognized that this peculiar

form of co-tenancy is based upon the legal fiction that spouses are one person.104 Not

surprisingly then, § 363(h), (i), and (j) illustrates that for certain purposes, Congress has

determined that tenancy by the entirety should be treated like other forms of co-tenancy

when only one spouse has filed for bankruptcy protection. Ultimately, when bankruptcy

cases, either individual or joint, involve property held by spouses as tenants by the

entirety, courts are forced to “balance . . . the notion that the bankruptcy estate is

composed of all legal and equitable interests of the debtorand the fact that tenants by the

entirety own indivisible interests in entireties property.”105

2. Wyoming Bankruptcy Cases Involving Entireties Property

We now turn our attention to the four reported Wyoming cases involving entireties

property in bankruptcy – In re Anselmi, In re Wenande, In re Welty, and In re Jennings –

on which all of the parties rely to one degree or another. Although we conclude that none

102 11 U.S.C. § 363(j). 103 Peters v. Dona, 54 P.2d 817, 825 (Wyo. 1936). See also Zubrod v. Duncan (In re Duncan), 329 F.3d 1195, 1201 (10th Cir. 2003). 104 In re Brannon, 476 F.3d 170, 173 (3d Cir. 2007). Even the United States Supreme Court has referred to state law governing tenancies by the entirety as “peculiar legal fiction.” United States v. Rodgers, 461 U.S. 677, 703 n.31 (1983). 105 In re Van Der Heide, 164 F.3d 1183, 1185 (8th Cir. 1999). 27 of them, alone or in combination, dictate the result in this appeal, we must begin by

briefly reviewing these four cases.

In Anselmi,106 a married individual filed for chapter 7 bankruptcy protection and

claimed a wide variety of property interests as exempt, alleging they were all held with

his wife as tenants by the entirety. Creditors objected to the debtor’s claimed exemption

in all but two pieces of real property. The bankruptcy court ultimately allowed the

exemption for the real property in absence of objection and concluded, over creditors’

objection, that the debtor’s interests in certain contracts for deed were exempt as entireties

property. The bankruptcy court determined that all other property the debtor claimed as

exempt was not held in tenancy by the entirety and, therefore, not exempt. Anselmi

neither mentions joint debts held by the debtor and his spouse, nor discusses the “amount

of the exemption” to which the debtor was entitled. As a result, although the Anselmi

bankruptcy court’s decision was helpful in determining whether the Account was

entireties property as discussed above, it provides no further guidance here.

In Wenande,107 a husband and wife filed a joint voluntary petition for relief under

chapter 11, but the case was subsequently converted to a case under chapter 7. On their

schedules, the joint debtors claimed an exemption under applicable Wyoming law for the

following as entireties property:

All of the debtor’s property that qualifies [ ], including but not limited to: stock, mineral interests, real estate, accounts, intangibles and personal property, which includes, but would not necessarily be limited to the

106 52 B.R. 479 (Bankr. D. Wyo. 1985). 107 In re Wenande, 107 B.R. 770 (Bankr. D. Wyo. 1989). 28 following: 1) all of the debtor’s shares in the Wenande Land & Livestock Co. Inc., 2) all of the debtor’s shares in the Trail Creek Grazing Assoc.108

The trustee objected, and the bankruptcy court determined that the descriptions of most of

the property were insufficient to entitle the debtors to their claimed exemptions.109 With

respect to the shares in Wenande Land and Livestock Co. Inc. and Trail Creek Grazing

Assoc., the bankruptcy court concluded the trustee had not met his burden of showing the

property was not properly claimed as exempt.

Before analyzing the extent to which those properties were exempt, the bankruptcy

court noted, although there were many recent cases dealing with the status of entireties

property when only one spouse had filed bankruptcy, “there is very little case law on the

status of entireties property in a bankruptcy case filed by both spouses.”110 The

bankruptcy court ruled, because entireties property is not exempt from process under

Wyoming law from claims against both spouses, “to ‘the extent that joint creditors existed

at the filing of the bankruptcy petition, the entireties share is not exempt.’”111 It further

concluded “the amount . . . these joint debtors may exempt . . is their equity in the

entireties property, less the total sum of all joint claims against both debtors,”112 but the

value of the debtors’ entireties property and the amount of their joint debts are not

revealed. Because the analysis is unfortunately not carried out to its logical end, and

particularly because it involved joint debtors, Wenande is also of limited use in resolving

108 Id. at 771. 109 Id. at 773. 110 Id. 111 Id. at 774 (quoting Lawrence Kalevitch, Some Thoughts on Entireties in Bankruptcy, 60 Am. Bankr. L.J. 141, 150 (Spring, 1986)). 112 Id. 29 the issues before us on appeal. That the whole of the entireties property would be

included in the estate and subject to administration to the extent of the spouses’ joint

debts was the only tenable result because both spouses had filed for bankruptcy

protection. Otherwise, allowing complete exemption of the entireties property and

granting the joint debtors a discharge would be to return to pre-Bankruptcy Code law and

“result in a legal fraud, i.e. the effectual withdrawing of the property from the reach of

those entitled to subject it to their claims, for the beneficial ownership and possession of

those who created the claims against it.”113

Welty114 involved an individual debtor who filed a chapter 13 case. The debtor

claimed various real and personal property as exempt and scheduled a number of joint

obligations with his spouse. The bankruptcy court concluded only two parcels of real

estate were held in tenancy by the entirety and noted the joint debts included secured debt

on the real property and other unsecured debts. Relying on Wenande, the bankruptcy

court concluded “[t]o the extent joint claims exist against [debtor’s] estate and his

nonfiling spouse, the value of the tenancy by the entireties property is not exempt. The

debtor must include this value in the liquidation analysis accompanying his plan, and in

the payments made under the plan.”115 We fail to see how the bankruptcy court’s ruling

in Welty governs the result in our individual debtor chapter 7 case. First, the Welty court

merely assumed, without explanation or analysis, that “Wyoming law is settled and

consistent with other jurisdictions on this question in the context of a chapter 7 case,

113 Phillips v. Krakower, 46 F.2d 764, 765 (4th Cir. 1931). 114 In re Welty, 217 B.R. 907 (Bankr. D. Wyo. 1998). 115 Id. at 911. 30 regardless of whether the spouses are both debtors or one is a nondebtor.”116 Second,

including property in a chapter 13 liquidation analysis and determination of plan

payments is simply not the equivalent of actual liquidation of a non-debtor’s property

interests.

Most recently, in Jennings,117 this Court affirmed the Wyoming bankruptcy court’s

decision in another individual debtor chapter 7 case involving tenancy by the entirety

property and joint debts. In Jennings, the only entireties property claimed as exempt was

the married couple’s home, which was subject to a joint mortgage and an IRS lien for

which both spouses were ultimately determined to have liability. Relying on Wenande,

the bankruptcy court held the debtor could claim the entireties exemption “to the extent

that the equity exceeds the total amount of the debts owed jointly by the debtor and his

non-filing spouse.”118 After the debtor appealed the bankruptcy court’s decision, the

trustee filed an adversary proceeding seeking to sell the entireties property under §

363(h).

On appeal to the BAP, the debtor did not contest the principles of Wenande and,

thus, it was unnecessary for this Court revisit them. Instead, the debtor primarily argued

the trustee could not administer the potentially non-exempt portion of the entireties

property because he may not stand in the shoes of the IRS to challenge the exemption.

The debtor also argued the tenancy by the entirety property was not part of the

116 Welty, 217 B.R. at 911 (citing In re Wenande, 107 B.R. 770 (Bankr. D. Wyo. 1989) and In re Cochrane, 178 B.R. 1011, 1022 (Bankr. D. Mo. 1995). 117 In re Jennings, No. WY-17-002, 2017 WL 5591463, at *1 (10th Cir. BAP Nov. 21, 2017) (unpublished), aff’d 739 F. App’x 505 (10th Cir. 2018) (unpublished). 118 Id. at *1. 31 bankruptcy estate due to his non-filing spouse’s interest therein. This Court correctly

rejected both of the debtor’s arguments and affirmed the decision of the bankruptcy court.

Additionally, this Court declined to consider an argument made by the debtor

based on events occurring after the bankruptcy court’s order was entered, namely the

adversary proceeding filed by the trustee under § 363(h). However, in doing so, it noted

“[t]he bankruptcy court may determine whether the [entireties property] can be feasibly

partitioned in kind or whether it must be sold and the proceeds divided between the estate

and the non-debtor spouse,”119 but declined to discuss the issue further as the proceeding

was not complete and the merits were not properly before the Court on appeal.

Additionally, this Court did not address the debtor’s claim that the appealed order

violated the distribution priorities established in § 726(a) of the Code, deeming it

premature because no distribution had occurred.120

The Tenth Circuit Court of Appeals summarily affirmed this Court’s Jennings

decision,121 also declining to consider the debtor’s challenge to the trustee’s anticipated

distributions of assets as irrelevant to the exemption issue,122 as well as the debtor’s

argument that only a judgment creditor has standing to object to his claimed exemption in

the tenancy by the entireties real property.123 This Court’s Jennings decision contains

enough factual details to determine that equity existed in the entireties property over and

above the spouses’ joint mortgage and joint liability to the IRS. However, there is no

119 Id. at *6. 120 Id. 121 In re Jennings, 739 F. App’x 505 (10th Cir. 2018) (unpublished). 122 Id. at 509. 123 Id. at 510. 32 calculation of that equity in Jennings. More importantly, there is no determination as to

whether the entire amount of equity, or only that portion of equity allocable to the

debtor’s interest, is subject to administration by the trustee.

The above discussion illustrates that prior Wyoming bankruptcy decisions

involving entireties property are not completely instructive on the issues presented to the

Bankruptcy Court in this case. Even if it could be argued that these decisions provide the

answers to the questions before us, we note that such cases do not represent controlling

authority that the Bankruptcy Court was bound to follow.124

3. The Bankruptcy Court’s Decision Properly Balances the Interests of Federal Bankruptcy Law and State Property Law.

After concluding the Centennial Drive residence and the Account were held by

Debtor and Mrs. Crow as tenants by the entirety and qualified for exemption, the

Bankruptcy Court ruled that Mrs. Crow is “entitled to one-half of the exempt entireties

124 “Under principles of stare decisis, a decision of a federal district court judge or bankruptcy court is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.” In re Jones, 538 B.R. 844, 848 (Bankr. W.D. Okla. 2015) (first citing Fishman & Tobin, Inc. v. Tropical Shipping & Constr. Co.,, 240 F.3d 956 (11th Cir. 2001), and then citing Threadgill v. Armstrong World Indus., Inc., 928 F.2d 1366, 1371 (3d Cir. 1991)); Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (quoting 18 J. Moore et al., Moore’s Fed. Practice § 134.02[1][d], p. 134-26 (3d ed. 2011)); see In re Jones, 298 B.R. 451, 460-61 (Bankr. D. Kan. 2003) (“[T]he bankruptcy courts are not bound by [stare decisis] to follow any district judge’s decisions either.”). Further, “it is unclear that a Tenth Circuit BAP opinion is binding precedent on” bankruptcy courts. In re Wenzel, 415 B.R. 510, 516 (Bankr. D. Kan. 2009). Additionally, Jennings is an unpublished opinion that “may be cited for its persuasive value, but is not precedential, except under the doctrines of law of the case, claim preclusion, and issue preclusion.” In re Jennings, 2017 WL 5591463, at *1, n.*. 33 property before distribution to the estate.”125 Relying on Welty and Wenande, Trustee

argues the Bankruptcy Court improperly allowed Mrs. Crow to receive one-half of the

entireties property before distributions were made to joint creditors. We disagree.

The Bankruptcy Court’s decision to immunize one-half of the entireties property from

administration by Trustee is based primarily on case law from Missouri bankruptcy courts

and the Eighth Circuit Court of Appeals (“Eighth Circuit”), as well as analogies to §

363(j) of the Code. As is evident from Talbot v. U.S.,126 it is not unusual for Wyoming

courts to rely on Missouri law when addressing issues of tenancy by the entirety127

because Wyoming’s “definition of property held by tenants by the entireties is identical to

the definition of that property interest in Missouri.”128 Further, Missouri, like Wyoming,

clearly exempts entireties property from attachment and execution where only one of the

entirety interest holders is indebted.129 The Missouri case law on which the Bankruptcy

Court relied is much more instructive than the Wyoming bankruptcy case law discussed

above and, therefore, its analysis is more persuasive.

The Bankruptcy Court’s decision emphasizes In re Van Der Heide and In re Eads,

but the results in those cases stem from the earlier case of In re Garner130 and, thus, it

provides the starting point for our analysis. In Garner, an individual chapter 7 debtor held

125 Amended Memorandum Decision on Debtor’s Motion to Allow Use of Portion of Exempt Funds and Objections to Exemptions Filed by Chapter 7 Trustee and Radiance Capital Receivables Nineteen, L.L.C. at 15, in Appellant’s App. at 130. 126 850 F. Supp. 969 (D. Wyo. 1984). 127 Id. at 974 (noting that the Wyoming Supreme Court relied upon Missouri law in Peters v. Dona, 54 P.2d 821, 824-25 (Wyo. 1936)). 128 Id. at 975. 129 In re Eads, 271 B.R. 371, 374-75 (Bankr. W.D. Mo. 2002). 130 952 F.2d 232 (8th Cir. 1991). 34 stock in tenancy by the entirety with his spouse. The debtor sought to exempt the stock

under § 522(b)[3](B), but the trustee objected and pursued turnover. After the Missouri

bankruptcy court’s decision that the stock should be included in the debtor’s estate was

reversed and remanded by the district court, the debtor appealed to the Eight Circuit.

The Eighth Circuit framed the question on appeal as “whether personal property

held in tenancy by the entirety by a debtor and his spouse should be included as property

of the bankruptcy estate when only one spouse is in bankruptcy.”131 It answered the

question in the affirmative, stressing the all-encompassing language of § 541(a).132 In

examining the potential exemption of the entireties property under § 522(b)[3](b), the

Eighth Circuit concluded “that were the question before the Supreme Court of Missouri in

a nonbankruptcy context, that court would not prevent creditors from accessing tenancy

by the entirety property where the entirety owners were jointly indebted to the

creditors.”133 Regarding the disposition of the stock, which had been reduced to cash

before the appeal could be heard, the Eighth Circuit ruled that one-half of the cash

received for the stock must be returned to the non-filing spouse in order to comply with §

363(h) of the Bankruptcy Code that allows partition of co-owned property.134 In doing so,

it emphasized that “returning one-half of the proceeds from the sale of the stock shares to

131 Id. at 233. 132 Id. at 234. 133 Id. at 235. 134 Id. at 236. Although the stock shares had been sold, the Eighth Circuit did not apply § 363(j), which requires proceeds of a sale to bear costs and expenses prior to distribution. In the Eighth Circuit’s view, it would not have been impracticable to partition the stock, in which case, the non-filing spouse’s share would not be reduced by selling costs and expenses. Id. at n.5. 35 [the non-filing spouse] does not insulate her from creditors pursuing whatever actions

they possess against her.”135

About eight years later, the Eighth Circuit was again faced with the baffling and

bewildering entireties issue, this time in the individual chapter 13 case of In re van der

Heide.136 In this case, the debtor and his spouse owned a home as tenants by the entirety

in which there was equity that, upon sale, would have produced net proceeds after

deduction for transactional costs. For purposes of the liquidation analysis, the debtor

contended only one-half of the hypothetical net proceeds was required to be included in

the bankruptcy estate, but the trustee argued all of the net proceeds were included, less

any applicable exemption. The Missouri bankruptcy court agreed with the trustee and

denied confirmation of the debtor’s chapter 13 plan as not being in the best interests of

creditors as required by § 1325(a)(4). On appeal, the Eighth Circuit reversed,

“conclud[ing] that the rule announced in Garner dictates that only one-half of the

hypothetical sale proceeds, less exemptions, are subject to the bankruptcy estate”137 and

that such “was an equitable rule that preserves the balance of the breadth of federal

bankruptcy and state property law.”138

The bankruptcy courts for both the Eastern and Western Districts of Missouri have

since applied the Garner and Van Der Heide principles to chapter 7 cases filed by only

one spouse. In In re Eads,139 the bankruptcy court was tasked with the “proper division of

135 Id. 136 164 F. 3d 1183 (8th Cir. 1999). 137 Id. at 1184. 138 Id. at 1185. 139 271 B.R. 371 (Bankr. W.D. Mo. 2002). 36 the proceeds from the sale of a residential property owned by the Debtor and his non-

debtor spouse as tenants by the entirety.”140 It held, pursuant to § 363(j) and controlling

Eighth Circuit law, “the net proceeds from the sale of the real estate, after payment of the

transactional costs and the mortgage debts, must be divided equally between the spouses

and the Debtor’s one-half share of those proceeds must be applied by the Trustee to

payment of the parties’ joint debts only.”141 Similarly, in the more recent case of In re

Story,142 the bankruptcy court held that “one-half of the [entireties property] will be

property of the estate [ ] which the Trustee may use to satisfy any debt that is jointly held

by Debtor and [his non-filing spouse].”143

Herein, the Bankruptcy Court was presented with the same issues as described

above—an individual chapter 7 debtor who held certain property with his non-filing

spouse in tenancy by the entirety and is potentially liable on joint obligations. We take no

issue with the Bankruptcy Court applying Missouri bankruptcy case law because

Missouri state law regarding tenancy by the entirety is analogous to that of Wyoming.144

Further, the Bankruptcy Court’s stated objective was to ensure creditors were

treated similarly in bankruptcy as under state law in absence of bankruptcy, a permissible

140 Id. at 372. 141 Id. 142 536 B.R. 279 (Bankr. E.D. Mo. 2015). 143 Id. at 285. 144 In its Amended Exemption Order, the Bankruptcy Court notes that a previous judge of the Wyoming bankruptcy court held in an earlier unreported decision, In re Bean, Adv. Pro. 12-2018, (Bankr. D. Wyo. Aug. 2, 2013 and Jan. 10, 2014), that the non-debtor spouse was entitled to one-half of the interest in tenancy by the entirety property before the trustee distributed the proceeds. Bankruptcy courts in other jurisdictions have reached similar results. See, e.g., Finneran v. Assocs. Fin. Servs. (In re Blair), 151 B.R. 849, 851-53 (Bankr. S.D. Ohio 1992), aff’d 33 F.3d 54 (6th Cir. 1994); 37 goal for a court of equity.145 The Bankruptcy Court’s “conclusion accords with Congress’

intent to bring all of a bankrupt individual’s property interests into the bankruptcy estate

and then equitably protect the nonbankrupt individual’s interest in the property.”146

In sum, the Bankruptcy Court properly navigated the tightrope of tension that exists when

a married individual files bankruptcy holding entireties property, raising that peculiar

legal fiction of state law that the spouses’ interest are held by a single marital entity. We

find no error in the Bankruptcy Court’s decision.

C. The Bankruptcy Court Did Not Err in Concluding an Adversary Proceeding is Required to Order Turnover of Entireties Property to the Estate.

The Bankruptcy Court concluded Mrs. Crow continued to have an undivided

interest in Debtor’s share of the entireties property pursuant to Wyoming tenancy by

entireties law.147 Therefore, the Bankruptcy Court denied Trustee’s motion for turnover,

145 See generally BFP v. Resolution Tr. Corp., 511 U.S. 531, 557 n.10 (1994) (“creditors’ ‘substantive’ state law rights ‘survive’ in bankruptcy, while their ‘procedural’ or ‘remedial’ rights under state debtor-creditor law give way [to bankruptcy law]”); Cent. States Corp. v. Luther, 215 F.2d 28, 46 (10th Cir. 1954) (“A bankruptcy court is a court of equity and is guided by equitable principles and doctrines except when they are inconsistent with the Bankruptcy Act.”); In re Waring, 555 B.R. 754, 758, n.7 (Bankr. D. Colo. 2016) (explaining § 105 allows bankruptcy courts to “fill in statutory gaps . . . where the proposed action is not expressly circumscribed and instead is in harmony with other provisions of the Bankruptcy Code as well as its overriding purpose.”) (internal citations omitted). 146 In re Garner, 952 F.2d at 235 (explaining § 541 revisions protected a cotenant’s property rights when property held in tenancy by entirety (citing H.R. Rep. No. 95-595 (1977), reprinted in 1978 U.S.C.C.A.N. 5787, 5963)); In re Jaffe, 932 F.3d 602 (7th Cir. 2019) (quoting Chisnosorn, 243 B.R. at 700 (“[T]he apparent intent of [§ 522(b)(3)(b)] is to provide, in bankruptcy, a level of protection from claims of creditors identical to the protection that owners of entireties property would have in collection proceedings outside of bankruptcy, under applicable state law.”). 147 Order Denying Trustee[‘s] Motion for Turnover of the Fidelity Account, Without Prejudice at 1-2, in Appellant’s App. at 131-32. 38 determining that Rule 7001(1) required the parties to bring an adversary proceeding in

order to compel transfer of assets to the estate in which a non-debtor has an interest. On

appeal, Radiance and Trustee argue the Bankruptcy Court’s ruling in this regard is error.

We do not agree. Rule 7001(1) provides that “a proceeding to recover money or property,

other than a proceeding to compel the debtor to deliver property to the trustee, or a

proceeding under § 554(b) or § 725 of the Code, Rule 2017, or Rule 6002” is an

adversary proceeding.148 Trustee argues § 542(a) entitles him to turnover of at least

$1,258,257.48 without need for bringing an adversary proceeding. Trustee’s argument is

based on his assertion that the undisputed amount of joint debt owed by the Crows on the

petition date of $1,807,344.80 exceeds Debtor’s one-half undivided interest

$1,258,257.48 in the Account. We take issue with Trustee’s argument for several reasons.

First, based on representations of the parties at the hearing, the Bankruptcy Court

expressly reserved determination of the amount of joint debt for a future proceeding.

Second, the special nature of tenancy by the entirety property, i.e., that each spouse holds

an undivided ownership in the whole of the property,149 necessarily impacts bankruptcy

procedures when only one spouse is a debtor. As the Bankruptcy Court held, Mrs. Crow

is entitled to one-half the value of the entireties property and additionally retains an

interest in Debtor’s one-half of the entireties properties. Accordingly, Trustee’s motion

for turnover squarely falls into the category of “a proceeding to recover money or

148 Fed. R. Bankr. P. 7001(1). 149 Zubrod v. Duncan (In re Duncan), 329 F.3d 1195, 1201 (10th Cir. 2003) (“Entirety in this connection means indivisibility.” (quoting Ward Terry & Co. v. Hensen, 297 P.2d 213, 215 (Wyo. 1956))); Case v. Sink & Rise, Inc., 297 P.3d 762, 766 (Wyo. 2013). 39 property, other than a proceeding to compel the debtor to deliver property to the trustee”

requiring an adversary proceeding.150

Further, turnover is not intended to remedy or determine disputed rights of parties

to property of the bankruptcy estate; rather, it is a remedy to be used only to obtain

property that is acknowledged to be property of the debtor’s estate.151 The extent of

litigation over the estate’s and Mrs. Crow’s interests in the Account belies any claim that

turnover is an appropriate mechanism for determining the estate’s interest (and Mrs.

Crow’s interest) therein.

Finally, although Mrs. Crow has intervened in this appeal, she was not a party or

participant in all of the proceedings before the Bankruptcy Court and, thus, was unable to

fully protect her rights in the entireties property. An adversary proceeding will permit the

Bankruptcy Court to obtain jurisdiction over Mrs. Crow and allow her due process before

potentially requiring turnover of the property in which she has an interest.

As a result, we conclude that the Bankruptcy Court did not err in denying

Trustee’s motion for turnover and requiring an adversary proceeding to be filed.

150 In re MF Glob. Inc., 531 B.R. 424, 431 (Bankr. S.D. N.Y. 2015) (citing In re Perkins, 902 F.2d 1254, 1258 (7th Cir. 1990)). See also 10 Collier on Bankruptcy ¶ 7001.02 (16th ed. 2010) (“Proceedings within Rule 7001(1) include actions by trustees . . . to compel turnover of property of the estate pursuant to section 542(a)[.]”). This is especially the case given that Trustee seeks to use the assets in which Mrs. Crow has an interest to pay claims representing individual debts of Debtor. 151 (In re Rubesh, 347 B.R. 115, 2006 WL 1867678 (10th Cir. BAP July 6, 2006) (unpublished). 40 IV. CONCLUSION

Having reviewed the briefs, record on appeal, and applicable law, and applied the

appropriate standard of review, we find no error in the Bankruptcy Court’s analysis or

ruling. Thus, the Bankruptcy Court’s conclusions that (i) Debtor and Mrs. Crow

established and maintained the Account as tenants by the entirety, (ii) the entireties

property may be claimed as exempt pursuant to § 522(b)(3)(B) dependent upon the joint

debt of the Crows, (iii) one-half of the entireties property should be set aside for Mrs.

Crow prior to administration, and (iv) Trustee is required to seek turnover of the entireties

property through an adversary proceeding, are hereby AFFIRMED.