In re Gagow
In re Gagow
Opinion of the Court
On August 15, 2018, the court heard the Objection to Debtor's Claimed Exemptions *519Pursuant to
BACKGROUND
On May 10, 2018, a voluntary Chapter 7 bankruptcy petition was filed by Lou Shamoon Gagow ("Debtor") along with his schedules of assets and liabilities ("Schedules"), his statement of financial affairs ("SOFA"), and other required information. (ECF No. 1). On the same date, a notice of the Chapter 7 filing was issued scheduling a meeting of creditors for June 13, 2018, and notifying creditors of the Trustee's appointment. (ECF No. 7). On the Debtor's initial Schedule "A/B," Debtor listed cash in the amount of $25,000 ("Cash"), the source of which is identified as an "IRA Withdraw due to IRS levy." Debtor separately listed a "checking account ending #9309" in the amount of $508.91 maintained at Wells Fargo Bank ("WFB Checking Account"). Debtor also separately listed an "IRA ending 0412" in the amount of $95.00 maintained at Edward Jones ("Edward Jones IRA").
On his initial Schedule "C," Debtor claimed the $25,000 in Cash as exempt under NRS 21.090(1)(r). He also claimed the amount in the WFB Checking Account as exempt under NRS 21.090(1)(g) and 21.090(1)(z). Debtor also claimed the amount in the Edward Jones IRA as exempt under NRS 21.090(1)(r). He also claimed the amount of $10,000 for the LLC as exempt under NRS 21.090(1)(d).
On July 11, 2018, Debtor filed an amended Schedule "C," in which he claimed an exemption of the Cash in the amount of $15,827.23 under NRS 21.090(1)(r), and an additional exemption of the Cash in the amount of $9,172.77 under NRS 21.090(1)(z). (ECF No. 23). No changes were made to the exemptions claimed for the WFB Checking Account, the Edward Jones IRA, and the LLC.
On July 13, 2018, the Trustee filed the instant Objection with respect to the Debtor's claimed exemptions in both the Cash and in the LLC. (ECF No. 24). The Objection is supported by the Declaration of Shelley D. Krohn ("Krohn Declaration"). (ECF No. 25).
On August 1, 2018, the Debtor filed a further amended Schedule "C" wherein he now claims an exemption in the Cash in the amount of $15,827.23 under NRS 21.090(1)(r), and an additional exemption of the Cash in the amount of $9,172.77 under NRS 21.090(1)(z) or in the alternative NRS 21.090(1)(r). (ECF No. 32). No changes were made to the exemptions claimed for the WFB Checking Account or the Edward Jones IRA. However, the Debtor's amended Schedule "C" also claims an exemption in an unknown amount for the *520LLC under NRS 21.090(1)(bb), instead of under NRS 21.090(1)(d). On the same date, the Debtor filed his Response in Opposition to Debtor's Claimed Exemptions Pursuant to
On August 8, 2018, the Trustee filed her Reply to Response in Opposition to Debtor's Claimed Exemptions Pursuant to
On August 14, 2018, an Order of Discharge was entered. (ECF No. 39).
DISCUSSION
Exemptions are intended to preserve property interests essential for an individual to survive. An individual who is subject to collection proceedings is able to retain such essential items by claiming exemptions. See In re Bower,
Section 522(b)(1) authorizes an individual debtor to exempt property of the bankruptcy estate. Section 522(d) sets forth a variety of specific exemptions that may be claimed in bankruptcy cases, but Section 522(b)(2) allows individual States to "opt out" of those exemptions so that their residents may claim only the exemptions provided under state law and non-bankruptcy federal law. Under NRS 21.090(3), Nevada has "opted out" of the federal bankruptcy exemptions. See Leavitt v. Alexander (In re Alexander),
Section 522(l) requires an individual debtor to file a list of the property he or she claims as exempt. FRBP 4003(a) requires the list to be included in the schedules of information that the debtor is required to file under Section 521(a)(1)(B)(i). Section 522(l) also specifically provides that "[u]nless a party in interest objects, the property claimed as exempt on such list is exempt." The official form on which the list of exempt property must appear is Schedule "C."
Under FRBP 4003(b)(1), a party in interest must object, if at all, to a debtor's claim of exemptions within 30 days after conclusion of the meeting of creditors. Failure to timely object bars any subsequent challenge to the validity of the claimed exemption, see Taylor v. Freeland & Kronz,
Under FRBP 4003(c), the objecting party has the burden of proving that an exemption is not properly claimed. See, e.g., In re Mailatyar,
A claimed exemption is " 'presumptively valid.' " Tyner v. Nicholson (In re Nicholson),435 B.R. 622 , 630 (9th Cir. BAP 2010) (citing Carter v. Anderson (In re Carter),182 F.3d 1027 , 1029 n. 3 (9th Cir. 1999) ). "[I]f a party in interest timely objects, 'the objecting party has the burden of proving that the exemptions are not properly claimed.' "Id. (quoting Rule 4003(c) ). Initially, this means that the objecting party has the burden of production and the burden of persuasion. In re Carter,182 F.3d at 1029 n. 3. The objecting party must produce evidence to rebut the presumptively valid exemption.Id. Once rebutted, the burden of production then shifts to the debtor to come forward with unequivocal evidence that the exemption is proper.Id. The burden of persuasion, however, always remains with the objecting party.Id.
In the present case, the meeting of creditors was concluded on June 13, 2018, and the Trustee timely filed the instant Objection. The Trustee maintains that none of the Nevada statutory provisions asserted by the Debtor support the exemptions claimed in the Cash and the LLC. For the reasons set forth below, the court agrees with the Trustee and will sustain the Objection.
1. The Cash.
Debtor attests that he withdrew funds from the Edward Jones IRA on February 13, 2018, and deposited the net amount of $21,906.64 into the WFB Checking Account. See Gagow Declaration at ¶ 6.
money, not exceeding $1,000,000 in present value, held in : (1) an individual retirement arrangement which conforms with or is maintained pursuant to the applicable limitations and requirements of section 408 or 408A of the Internal Revenue Code,26 U.S.C. §§ 408 and 408A, including, without limitation, an inherited individual retirement arrangement.
Nev.Rev.Stat. 21.090(1)(r) (emphasis added).
Here, the Trustee does not object to the Debtor's exemption under NRS 21.090(1)(r) of the funds remaining in the Edward Jones IRA. The amount of $95.00 apparently is still held in that account, and no one questions whether the Edward Jones IRA complies with the applicable provisions of the Internal Revenue Code. Compare Rousey,
*523In this instance, the Nevada statute expressly refers to money "held in" an individual retirement arrangement
While the Debtor's argument ignores the plain language of the statute,
Under these circumstances, the court concludes that the exemption provided by NRS 21.090(1)(r)(1) does not apply to the Cash that the Debtor withdrew from the Edward Jones IRA.
2. The LLC.
Debtor also attests that the LLC is a California limited liability company in which he holds a ten percent membership interest. See Gagow Declaration at ¶¶ 9 and 10; Krohn Declaration at ¶ 11 and Exhibit "2" thereto. He attests that the LLC no longer operates, but receives income from collection of contracts for prior services. Id. at ¶ 10. As receivables are collected, Debtor apparently receives "non-passive income" from the LLC. Id. at ¶¶ 11-13. Debtor asserts that the monies received from the LLC are exempt pursuant to NRS 21.090(1)(bb). That Nevada statute provides an exemption for "[s]tock of a corporation described in subsection 2 of NRS 78.746 except as set forth in that section." NRS 21.090(1)(bb) (emphasis added).
NRS 78.746 is part of Chapter 78 of the Nevada Revised Statutes that governs Private Corporations in the State of Nevada. NRS 78.030 through NRS 78.055 specify the requirements for the formation of a private corporation in Nevada. Under NRS 78.030 (1 and 2), articles of incorporation must be filed with the Office of the Secretary of State of Nevada, and must contain the information specified in NRS 78.035. Under NRS 78.050(1), a corporation comes into existence only upon the filing of articles of incorporation pursuant to NRS 78.030.
NRS 78.745 through NRS 78.752 govern suits brought against private corporations, as well as their directors, officers, employees, agents, and stockholders. NRS 78.746 addresses actions by a judgment creditor of a stockholder to charge the stock of a private corporation for payment of an unsatisfied judgment. Subsection 2 of NRS 78.746 contains certain limitations on the execution of a judgment against the corporate stock held by the shareholder, but the provisions of part (c) of subsection 2 makes clear that the statute only applies to a corporation that (1) has fewer than 100 stockholders at any time, (2) is not publicly traded, and (3) is not a professional corporation. See Nev.Rev.Stat. 78.746(2)(c) (1, 2 and 3).
*526In this case, the LLC is not a corporation, but is a limited liability company. Limited liability companies have members, but not stockholders. In certain circumstances, limited liability companies may be treated as corporations, see, e.g., AE Rest. Assocs., LLC v. Giampietro (In re Giampietro),
Moreover, Chapter 78 of the Nevada Revised Statutes governs the formation of private corporations in the State of Nevada. There is no dispute that the LLC was formed in California, presumably in compliance with California law. Limited liability companies formed in another state are permitted to do business in Nevada, see Nev.Rev.Stat. 86.5463 and Nev.Rev.Stat. 86.5483, but are required to register with the Nevada Secretary of State and comply with the statutory requirements governing foreign limited liability companies. Likewise, corporations formed in another state are permitted to do business in Nevada, see Nev.Rev.Stat. 80.010 through Nev.Rev.Stat. 80.290, but also are required to register with the Nevada Secretary of State and comply with the statutory requirements governing foreign corporations.
Under these circumstances, the court is not persuaded by the Debtor that it should essentially re-write NRS 21.090(1)(bb) to apply to a limited liability company instead of a corporation, and to a California fictitious entity rather than a Nevada fictitious entity. As the circuit court observed in Gordon, see note 11,
Based on the foregoing, the court concludes that the Trustee has met her burden of proving that the exemption of the Cash under NRS 21.090(1)(r)(1) is not properly claimed. Additionally, the Trustee has met her burden of proving that the exemption of the LLC under NRS 21.090(1)(bb) is not properly claimed. To the extent that any portion of the wildcard under NRS 21.090(1)(z) remains available, however, the Debtor may claim that portion with respect to the Cash or the LLC.
IT IS THEREFORE ORDERED that the Objection to Debtor's Claimed Exemptions Pursuant to
IT IS FURTHER ORDERED that the Debtor's above-described claim of exemption to Cash in the amount of $25,000 as well as his claim of exemption to the ten percent ownership interest in 4th Junction, LLC, is limited to any remaining amounts available under NRS 21.090(1)(z).
On question 20 of the SOFA, Debtor lists all of the financial accounts that he closed within one year of the bankruptcy. No accounts maintained at Edward Jones or at Wells Fargo Bank were closed. Thus, only the WFB Checking Account and the Edward Jones IRA would exist for purposes of this bankruptcy proceeding.
The Supreme Court's later decision in Schwab v. Reilly,
The Trustee argues that when the exemption laws of a debtor's state of residence must be applied, state law may require that the debtor bears the burden of proof on the validity of the exemption claim. See Objection at 5:25 to 6:23, citing, e.g., In re Pashenee,
It is not clear why the Cash amount set forth in the Debtor's Schedules "B" and "C" is stated to be $25,000, rather than $21,906.64. Perhaps the lower figure is net of any federal income taxes, but no explanation is apparent from the evidence provided to the court. Moreover, because the Debtor treated the WFB Checking Account separately by claiming other exemptions under NRS 21.090(1)(g) and NRS 21.090(1)(z), it was inaccurate to describe the Cash as being anything other than a deposit of money in that same account. Either way, the Debtor's testimony establishes that the funds in question were not held in the Edward Jones IRA as of the commencement of the case.
The last eight words of the statute apparently were added by the Nevada legislature in 2017 in response to the Supreme Court's decision in Clark v. Rameker,
Debtor's Schedule "E/F" discloses that he is the subject of numerous federal tax liens for previous tax years. If he withdrew funds from his Edward Jones IRA in order to avoid a levy by the Internal Revenue Service, it might be hard to explain why such conduct would not be grounds for denial of a Chapter 7 discharge under Section 727(a)(2). That section provides that the "court shall grant the debtor a discharge, unless...the debtor, with intent to hinder, delay, or defraud a creditor...has transferred...property of the debtor, within one year before the date of the filing of the petition..." A finding of intent to defraud is not required; an intent to only hinder or delay a creditor is sufficient. See Cain v. Rawson (Matter of Rawson),
Within limits, a debtor is permitted to engage in "exemption planning" by converting otherwise non-exempt assets into exempt assets before seeking bankruptcy protection. Congress acknowledged this practice when it enacted the Bankruptcy Code. Both the House and Senate Reports regarding the debtor's right to claim exemptions state: "As under current law, the debtor will be permitted to convert nonexempt property into exempt property before filing a bankruptcy petition. The practice is not fraudulent as to creditors, and permits the debtor to make full use of the exemptions to which he is entitled under the law." H.R.Rep. No. 595, 95th Cong., 1st Sess. 361 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News 5963, 6317; S.Rep. No. 989, 95th Cong., 2d Sess. 76 (1978), reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5862 (emphasis added). When the conversion of non-exempt assets to exempt assets is found to be excessive, however, the individual may win the exemption battle but lose the war through denial of a bankruptcy discharge. See, e.g., Norwest Bank Nebraska, N.A. v. Tveten (In re Tveten ),
Other state exemption statutes are not limited to money held in an individual retirement account, but use broader language. For example, Ohio's exemption protects a debtor's "rights or interest in the assets held in, or to directly or indirectly receive any payment or benefit under, any individual retirement account." See In re Karn,
NRS 21.090(1)(r) also does not refer to the "right to receive" money held in an individual retirement arrangement. Many courts have recognized that an exemption of a right to receive a payment or benefit is extinguished if the payment or benefit was received prepetition. See, e.g., In re Nothdurft,
Colorado has an exemption for "Property, including funds, held in or payable from any pension or retirement plan..., including those in which the debtor has received benefits or payments,...including...any individual retirement account, as defined in 26 U.S.C. sec. 408..." Colo.Rev.Stat. § 13-54-102(1)(s) (emphasis added). In Wadsworth v. Gordon (In re Gordon),
Because the language of NRS 21.090(1)(r) is plain, it is unnecessary to consider the snippets of legislative history offered by the Trustee. See Houmand Declaration at ¶¶ 4 and 5, and Exhibits "1" and "2" attached thereto.
Some of the exemptions, of course, are designed to protect the income or benefits obtained by a judgment debtor who is currently employed or otherwise not retired. See, e.g., NRS 21.090(1)(g) [weekly disposable earnings]; NRS 21.090(1)(w) [lost future earnings]; NRS 21.090(1)(gg) [worker's compensation]; NRS 21.090(1)(hh) [unemployment compensation]; NRS 21.090(1)(jj) [vocational rehabilitation payments].
In the present case, the disputed funds already were withdrawn from the Edward Jones IRA before the Debtor filed his Chapter 7 petition. Even if he is allowed his claim of exemption, the Debtor has neither identified nor suggested any restrictions on the use of those funds now on deposit in the WFB Checking Account.
Effective October 1, 2017, NRS 21.090(1)(z) was amended by Nevada Assembly Bill 314 to increase the wildcard exemption from $1,000 to $10,000 in value of any personal property belonging to the judgment debtor. Once a judgment debtor receives a bankruptcy discharge and the case is closed, the pre-bankruptcy assets of the estate are either exempted by the debtor or administratively abandoned under Section 554(c). Upon entry of the discharge, any judgment on the pre-bankruptcy debt as a personal liability of the debtor is void under Section 524(a)(1). Additionally, creditors are barred by the discharge injunction under Section 524(a)(2) from attempting to collect their pre-bankruptcy debts as a personal liability of the debtor. Having received a financial fresh start through bankruptcy, a debtor can assert any exemptions allowed by state or federal law in response to collection efforts by post-bankruptcy creditors.
The prospect of a judgment creditor physically removing cash from the judgment debtor's possession without a breach of the peace is unlikely.
In Clark, Justice Sotomayor observed that "the possibility that some investors may use their inherited IRAs for retirement purposes does not mean that inherited IRAs bear the defining characteristics of retirement funds. Were it any other way, money in an ordinary checking account (or, for that matter, an envelope of $20 bills) would also amount to 'retirement funds' because it is possible for an owner to use those funds for retirement."
As previously mentioned at note 6, supra, Section 522(d)(12) creates a federal bankruptcy exemption for retirement funds. Section 522(b)(4)(D) addresses distributions from accounts referenced in Section 522(d)(12). Section 522(b)(4)(D)(i) provides that a distribution from a qualified retirement fund does not lose its exempt status under Section 522(d)(12) if the distribution is deposited into a similar fund or account within 60 days. As also previously mentioned at 4, supra, Nevada has opted out of the federal bankruptcy exemptions in favor of those provided under Nevada law. Unlike Section 522(b)(4)(D), there is no language in NRS 21.090(1)(r) extending the duration of the exempt status of a distribution from an individual retirement arrangement. Once an individual debtor obtains a discharge of his pre-bankruptcy debts, however, the importance of a continuous exemption is minimized by the presence of the discharge injunction.
Effective January 1, 2014, California adopted the Revised Uniform Limited Liability Company Act, see Cal.Corp.Code §§ 17701.01 through 17713.13, that includes provisions governing limited liability companies formed in another state. See Cal.Corp.Code §§ 17708.01 through 17708.09.
Not surprisingly, the Trustee does not oppose allowing the Debtor to claim an appropriate exemption under the wildcard. See Krohn Declaration at ¶ 16.
Reference
- Full Case Name
- IN RE: Lou Shamoon GAGOW, fdba 9th St. Enterprise, LLC, fdba Yellow Street Ventures, LLC, Debtor.
- Cited By
- 1 case
- Status
- Published