In re Nguyen
In re Nguyen
Opinion of the Court
MEMORANDUM OPINION
The Chapter 7 trustee objected to debt- or Thedia Thi Nguyen’s (Thedia) claim of a homestead exemption. This is a core proceeding under 28 U.S.C. § 157(b)(2)(B) over which the Court has jurisdiction pursuant to 28 U.S.C. § 1334(b), 157(a), and 157(b)(1). The following constitutes my Findings of Fact and Conclusions of Law in accordance with Rule 52 of the Federal Rules of Civil Procedure as made applicable to this proceeding by Rule 7052 of the Federal Rules of Bankruptcy Procedure. For the reasons set forth below, I will overrule the trustee’s objection.
FACTUAL BACKGROUND
Thedia and her companion Hein Trach (Hein) purchased a home, legally described as “LOT FOURTEEN (14), LINDON-SHERRY-SYCAMORE WELLS SUB-DIVSION IN THE CITY OF SPRINGFIELD, GREENE COUNTY, MISSOURI” (the Homestead), in November of 1997. Thedia and Hein have never been legally married, but they have four children. On June 3, 2005, Thedia filed this Chapter 7 bankruptcy petition. At the time of filing she and two of the children were living with her mother, who lives one block away from the Homestead. In her original bankruptcy filings, she claimed the Homestead as exempt, but stated her intention to surrender it. Thedia returned to the Homestead in July of 2005, and has remained there ever since. The trustee objected to Thedia’s claim of exemption. On September 28, 2005, this Court held a hearing. At the hearing, Thedia testified that she left the Homestead in January due to increasing conflicts with Hein related to a failed business.
The parties agree that the Homestead is encumbered by a first and second Deed of Trust with total indebtedness of $69,063.91. Thedia claims the fair market value of the Homestead is $89,000. She presented an appraisal done on September 7, 2005, that values the Homestead at $90,000.
The trustee makes two arguments. First he claims that Thedia abandoned the Homestead, was not living in the Homestead when she filed, and did not intend to return at that time. Alternatively, he argues that, if she intended to return, as a
DISCUSSION
The Bankruptcy Code (the Code) permits a state to opt out of the federal bankruptcy exemption scheme.
Every person by or against whom an order is sought for relief under Title 11, United States Code, shall be permitted to exempt from property of the estate any property that is exempt from attachment and execution under the law of the state of Missouri or under federal law, other than Title 11, United States Code, Section 522(d), and no such person is authorized to claim as exempt the property that is specified under Title 11, United States Code, Section 522(d).6
In Missouri a debtor is allowed to claim as exempt from the claims of creditors a homestead with a value of $15,000:
1. The homestead of every person, consisting of a dwelling house and appurtenances, and the land used in connection therewith, not exceeding the value of fifteen thousand dollars, which is or shall be used by such person as a homestead, shall, ... be exempt from attachment and execution. The exemption allowed under this section shall not be allowed for more than one owner of any homestead if one owner claims the entire amount allowed under this subsection; but, if more than one owner of any homestead claims an exemption under this section, the exemption allowed to each of such owners shall not exceed, in the aggregate, the total exemption allowed under this subsection as to any one homestead.7
A debtor’s physical removal from her residence, however, constitutes prima facie evidence of abandonment.
The second issue is whether Thedia is entitled to claim an exemption of $15,000, or whether she is limited to one-half of that amount. Thedia and Hein own the Homestead as tenants in common, and Thedia holds a one-half interest.
In Van Der Heide v. LaBarge (In re Van Der Heide),
This Court has previously ruled that the trustee may sell jointly held property, if there is equity in the property and severing the interest is not practicable.
An Order in accordance with this Memorandum Opinion will be entered this date.
.According to the transcript of the § 341 meeting, Thedia operated an Asian food market until April of 2005. Much of her debt is related to this failed business venture.
. Pl.Ex. #8.
. Pl.Ex. # 4.
. 11 U.S.C. § 522(b)(1).
. Mo. Stat. Ann. § 513.427 (2002).
. Id.
. Mo. Stat. Ann. § 513.475 (Supp. 2005).
. Farris v. Farmington Production Credit Assoc. (In re Farris), 42 B.R. 388, 389 (Bankr. E.D.Mo. 1984).
. In re Schissler, 250 B.R. 697, 700 (Bankr. W.D.Mo. 2000).
. Id.
. Snodgrass v. Copple, 131 Mo.App. 346, 111 S.W. 845, 846 (1908).
. 311 B.R. 525 (Bankr.W.D.Mo. 2004).
. The debtor acquired the residence in 1967 and lived in it for 20 years prior to her marriage in 1987. The debtor retained ownership of the residence during the next 17 years, and her son occupied the residence without signing a formal lease or paying rent.
. Id. at 528.
. The Quit Claim Deed lists Hein and Thedia as "husband and wife.” Pl.Ex. # 2. Since both testified, however, that they were never legally married, they hold the Homestead as tenants in common. Snyder v. Snyder (Matter of the Estate of Mark E. Snyder), 880 S.W.2d 596, 599 (Mo.Ct.App. 1994) (stating that there must be a statement in the deed creating a specific survivorship interest and that parties who hold as tenants in common are presumed to hold equal undivided interests).
. 164 F.3d 1183 (8th Cir. 1999).
. Id. at 1186.
. Id. at 1184.
. 259 B.R. 330 (8th Cir. BAP 2001).
. Id. at 333 (quoting Van Der Heide v. La-Barge (In re Van Der Heide), 164 F.3d 1183, 1186 (8th Cir. 1999)).
. Id. at 336.
. Id. at 336.
. In re Robert Johan Simon and Katherine Ann Simon, Case No. 04-62441.
Reference
- Full Case Name
- In re Thedia Thi NGUYEN, Debtor
- Cited By
- 3 cases
- Status
- Published