White v. Brown (In Re White)

389 B.R. 693, 2008 Bankr. LEXIS 2404, 2008 WL 2597030
CourtUnited States Bankruptcy Appellate Panel for the Ninth Circuit
DecidedApril 22, 2008
DocketBAP No. AZ-07-1385-KPaJu. Bankruptcy No. 05-21488-SSC
StatusPublished
Cited by44 cases

This text of 389 B.R. 693 (White v. Brown (In Re White)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White v. Brown (In Re White), 389 B.R. 693, 2008 Bankr. LEXIS 2404, 2008 WL 2597030 (bap9 2008).

Opinions

OPINION

KLEIN, Bankruptcy Judge.

The appellant sold his Arizona homestead before filing the bankruptcy case in which he claimed the proceeds as exempt, but then did not reinvest them in a new homestead within the eighteen months required by Ariz.Rev.Stat. § 33-1101(C). Instead, he lost the proceeds in stock market trades made without the trustee’s permission and without abandonment of the estate’s interest in the fund. The bankruptcy court ordered turnover of $144,816.96 to the trustee after the temporary exemption expired, ruling that the debtor was not privileged to manage homestead sale proceeds during the temporary exemption period in a manner inconsistent with the exemption purposes of the Arizona statute. In re White, 377 B.R. 633 (Bankr.D.Ariz.2007). We agree and AFFIRM.

FACTS

The facts summarized here are more fully set forth in the bankruptcy court’s published opinion. White, 377 B.R. at 635-40.

On August 31, 2005, appellant Damian White sold his Arizona residence and received $165,095.98 in net proceeds, of which $150,000 was protected by the Arizona homestead exemption.

When he filed his chapter 7 case on October 7, 2005, White had $144,816.96 [697]*697traceable to homestead sale proceeds in a savings account, a brokerage account, and miscellaneous investments.

On Schedule B, the debtor listed his savings and brokerage account balances as $22,000 and $125,000, respectively, and described each as, “Exempt proceeds from the sale of homestead.”

On Schedule C, the debtor claimed $147,000 in homestead sale proceeds as exempt pursuant to the $150,000 exemption provided by Aeiz.Rev.Stat. § 33-1101(A), which, by operation of Amz.Rev. Stat. § 33-1101(0, would remain exempt until February 28, 2007, eighteen months after the initial sale. If not reinvested in a new homestead residence by then, the proceeds would lose their exempt status. There was no objection to the claim of exemption.

The debtor’s bank initially froze his savings account but released it with permission of the trustee, who did not know the debtor intended to use the funds for nonexempt purposes.

The debtor did not reinvest in a new homestead by February 28, 2007, when the 18-month temporary exemption expired.

The trustee thereupon filed a motion for turnover of the homestead sale proceeds pursuant to 11 U.S.C. § 542(a), which led to an evidentiary hearing on June 27, 2007.

Account records in evidence, as confirmed by the debtor’s testimony, revealed pre- and postpetition investments using the proceeds, including “put” and “call” option trading, at a rate ranging from 12 to 302 transactions per month.

All but $165.91 of the $144,816.96 in homestead sale proceeds was dissipated in investment losses, except for $23,000 supposedly used for living expenses, $9,000 to purchase the estate’s interest in his vehicle, and a $5,000 family gift.

The court concluded that the debtor neither attempted, nor intended, to use homestead sale proceeds in a manner consistent with the purpose of protecting exemptions. Significantly, it disbelieved the debtor’s testimony (“created this testimony out of whole cloth” — “not credible and seriously misleading” — White, 377 B.R. at 640) that he was unable to obtain a new homestead.

Although there was a stipulation between the debtor and trustee that $23,000 was used “for living expenses” during seven months in 2006, the court noted that the debtor testified he had no recollection of using the funds to pay rent for his residence and that there was no evidence that the funds were expended for shelter or other critical expenses; hence, the court specifically declined to conclude that any of the proceeds went to “provide a shelter for his family.” White, 377 B.R. at 647.

After post-trial briefing, the court granted the trustee’s motion to compel turnover of $144,816.96 in homestead sale proceeds in its published decision issued September 28, 2007. It concluded that there was no need for the trustee to have objected to the claim of exemption in the homestead sale proceeds and that, since the trustee never abandoned the proceeds, the estate continued to have a contingent, reversion-ary interest in the homestead proceeds for the 18-month period after the sale.

Admitting the possibilities that Arizona law might permit homestead sale proceeds to be redirected to another exempt purpose and that a debtor’s benign intent might rescue an imperiled exemption, it ruled that neither possibility applied because this debtor “squandered” the homestead proceeds in a manner “diametrically opposed” to the exemption purpose that negated any intent to reinvest in a new homestead or in other exempt property. White, 377 B.R. at 647-48. Thus, the trus[698]*698tee’s turnover motion was granted in the sum of $144,816.96.

After filing a timely notice of appeal, the debtor succeeded in having the case converted to chapter 13. Hence, the chapter 13 trustee, Russell Brown, is the substituted appellee. The debtor’s chapter 13 plan that is on file contemplates that the amount paid under the plan will depend on the outcome of this appeal, the existence of which appeal is expressly noted.

JURISDICTION

Subject-matter jurisdiction was founded on 28 U.S.C. § 1334 over this core proceeding under 28 U.S.C. § 157(b)(2)(E). We have jurisdiction per 28 U.S.C. § 158(a)(1).

ISSUES

(1) Whether the subsequent conversion of the case from chapter 7 to chapter 13 moots this appeal.

(2) Whether Arizona law restricts the use of homestead sale proceeds during their period of temporary exemption.

(3) Whether a debtor must, when the Arizona temporary exemption period expires, account to the trustee for postpetition loss of homestead sale proceeds as property of the estate.

(4) Whether the trustee must have objected to the claim of exemption before requesting turnover of net homestead sale proceeds after Arizona’s 18-month temporary exemption expires.

STANDARD OF REVIEW

Abatement and mootness are jurisdictional questions that we raise sua sponte and determine de novo. Searles v. Riley (In re Searles), 317 B.R. 368, 373 (9th Cir. BAP 2004), aff'd, 212 Fed.Appx. 589 (9th Cir.2006); Official Comm. v. Henry Mayo Newhall Mem’l Hosp. (In re Henry Mayo Newhall Mem’l Hosp.), 282 B.R. 444, 448 (9th Cir. BAP 2002).

The terms of statutory exemptions, whether property is property of the estate, and procedures for recovering property of the estate are questions of law reviewed de novo. Ford v. Konnoff (In re Konnoff), 356 B.R. 201, 204 (9th Cir. BAP 2006); Litton Loan Serv’g, LP v. Garvida (In re Garvida), 347 B.R. 697, 703 (9th Cir. BAP 2006); Gaughan v. Smith (In re Smith), 342 B.R. 801, 805 (9th Cir. BAP 2006).

DISCUSSION

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Bluebook (online)
389 B.R. 693, 2008 Bankr. LEXIS 2404, 2008 WL 2597030, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-brown-in-re-white-bap9-2008.