In re Nersinger
In re Nersinger
Opinion of the Court
DECISION & ORDER
BACKGROUND
On May 18, 2006, Kathleen M. Nersinger (the “Debtor”) filed a petition initiating a Chapter 7 case. On the Schedules and Statements required to be filed by Section 521 and Rule 1007, the Debtor: (1) indicated that she was the owner of real property that was her residence, located at 698 Car-dile Drive, Webster, New York (the “Car-dile Drive Property”); (2) indicated that the value of the Cardile Drive Property was $127,700.00, and it was subject to secured claims of $112,058.65; and (3) claimed a $30,961.09 exemption on Schedule C for her interest in the Cardile Drive Property, pursuant to New York Civil Practice Law and Rules Section 5206(a) (the “Homestead Exemption Statute”).
On October 6, 2006, the Trustee filed a motion (the “Exemption Motion”) objecting to the Debtor’s claimed $30,961.09 homestead exemption, which asserted that: (1) the Trustee did not object to the Debt- or’s claimed homestead exemption, as set forth on her Schedule C, because she was entitled to as much as a $50,000.00 exemption above any mortgage liens, pursuant to the Homestead Exemption Statute;
On October 25, 2006, the Debtor filed opposition (the “Opposition”) to the Exemption Motion, which asserted that: (1) pursuant to Rule 4003(b), the deadline to file an objection to the Debtor’s Schedule C claim of a $30,961.09 homestead exemption in the Cardile Drive Property was July 13, 2006, and no party in interest, including the Trustee, objected to the claimed exemption until the Exemption Motion was filed on October 6, 2006; (2) pursuant to Section 522(i ),
On October 30, 2006, the Trustee filed an additional letter submission, which asserted, once again, that the Trustee did not object to the Debtor’s Schedule C claim of a $30,961.09 homestead exemption, because he interpreted that claim of an exemption to essentially be nothing more than a claim to the equity in the Cardile Drive Property over and above the amounts due on the two Countrywide mortgages, pursuant to the provisions of the Homestead Exemption Statute, not an actual claim of an exemption of $30,961.09 in the Property or its proceeds.
DISCUSSION
The facts and circumstances of this case present a matter of first impression for
On the facts and circumstances of this case, the Court believes that Taylor must prevail, so that the Debtor’s Schedule C claimed $30,961.09 homestead exemption, not timely objected to, is allowed and must be paid from the proceeds of the sale of the Cardile Drive Property being held by the Trustee.
Although this Court in Hartsock, which the Trustee has cited in support of his position, enforced the provisions of Section 522(g), when it held that a debtor could not claim an exemption in a motor vehicle after the trustee obtained a voluntary lien release, the debtors in that case had not claimed an exemption in the vehicle prior to the trustee’s avoidance of the lien. As a result, the Court was not presented with the issue in this case, whether a claimed Schedule C exemption made before the avoidance and not timely objected to should be allowed pursuant to Taylor, Section 522(i) and Rule 4003(b), notwithstanding the provisions of Section 522(g).
In this case, the Trustee failed to file a timely objection to the Debtor’s Schedule C claim of a $30,961.09 homestead exemption. This appears to be because he believed that, notwithstanding the specific dollar amount claimed, which was different from even the $15,641.35 difference between the scheduled value for the Cardile Drive Property of $127,700.00 and the scheduled secured claims of $112,058.65, the exemption would be limited to the actual difference between the value of the Cardile Drive Property and the balances due on the two Countrywide mortgages, pursuant to the provisions of the Homestead Exemption Statute and Section 522(g). This is even though: (1) the math, based upon the Debtor’s schedules, clearly indicated that the Debtor was claiming an exemption for more than just the difference between the value of the Cardile Drive Property and the secured claims; (2) within the thirty-day period provided for by Rule 4003(b) to file an objection to the claimed exemption, the Trustee knew that the two Countrywide mortgages were unrecorded and that he would be filing an Adversary Proceeding to avoid the liens; and (3) he commenced his Adversary Proceeding within that same thirty-day period.
As the Court stated in Carpenter, although some believe the decision of the United States Supreme Court in Taylor is harsh, it is, nevertheless, clear. The Taylor holding, that unless a claimed exemption is timely objected to, it is allowed, has and will continue to result in cases which appear to some to have unjust results. Nevertheless, that is the law.
Although not necessary to this Decision, it may be instructive to note that on the facts and circumstances of this case, had the Trustee filed a timely objection to the Debtor’s Schedule C claim of a $30,961.09 homestead exemption, advising the Court that he had or was going to file an Adversary Proceeding to avoid the two Countrywide mortgages, the Court, pursuant to Section 522(g), would have limited the Debtor’s homestead exemption to the difference between the scheduled value of the Cardile Drive Property and the balances due on the two Countrywide mortgages.
CONCLUSION
The Debtor’s Schedule C claimed $30,961.09 homestead exemption, not timely objected to, is allowed and must be paid from the proceeds of the sale of the Car-dile Drive Property being held by the Trustee.
IT IS SO ORDERED.
. Rule 4003(b) provides that:
A party in interest may file an objection to the list of property claimed as exempt only within 30 days after the meeting of creditors held under § 341(a) is concluded or within 30 days after any amendment to the list or supplemental schedules is filed, whichever is later. The court may, for cause, extend the time for filing objections if, before the time to object expires, a party in interest files a request for an extension. Copies of the objections shall be delivered or mailed to the trustee, the person filing the list, and the attorney for that person. F.R.B.P. 4003 (2006).
. Section 5206 (Real property exempt from application to the satisfaction of money judgment) provides, in part, that:
(a) Exemption of homestead. Property of one of the following types, not exceeding fifty thousand dollars in value above liens and encumbrances, owned and occupied as a principal residence, is exempt from application to the satisfaction of a money judgment, unless the judgment was recovered wholly for the purchase price thereof:
1. a lot of land with a dwelling thereon,
C.P.L.R. § 5206 (2006).
.Section 522(g) provides that:
(g) Notwithstanding sections 550 and 551 of this title, the debtor may exempt under subsection (b) of this section property that the trustee recovers under section 510(c)(2), 542, 543, 550, 551, or 553 of this title, to the extent that the debtor could have exempted such property under subsection (b) of this section if such property had not been transferred, if — •
(1)
(A) such transfer was not a voluntary transfer of such property by the debtor; and
(B) the debtor did not conceal such property; or
(2) The debtor could have avoided such transfer under subsection (f)(2) of this section.
11 U.S.C. § 522 (2006).
. Section 522(1) provides that:
(1) The debtor shall file a list of property that the debtor claims as exempt under subsection (b) of this section. If the debtor does not file such a list, a dependent of the debtor may file such a list, or may claim property as exempt from property of the estate on behalf of the debtor. Unless a party in interest objects, the property claimed as exempt on such list is exempt.
11 U.S.C. § 522 (2006).
. Since this Court has determined that the Debtor’s allowed exemption from the proceeds of the sale of the Cardile Drive Property is her claimed homestead exemption of $30,961.09, which was not timely objected to, it is not necessary to address these issues.
Reference
- Full Case Name
- In re Kathleen M. NERSINGER, Debtor
- Status
- Published