Bankruptcy: Exemption - Ownership of Realty by Tenants by the Entirety

     In In Re Scialdore, the United States Bankruptcy Court, Eastern District of Virginia, Judge Tice sustained a creditor's objection to a debtor's claimed exemption of real estate as "tenants by the entirety" under Bankruptcy Code §522 (b)(2)(B). The creditors objected on the ground that the debtor and his wife did not own the property as tenants by the entirety. 

     Under Virginia law, creditors of one spouse may not attach property held by the entirety; only joint creditors of both spouses may reach entireties property. If property owned by an individual debtor and nondebtor spouse is not held by the entirety then the debtor's interest is an asset of the bankruptcy estate. 

     In Virginia, estates by the entirety are abolished except where the deed or will manifests an intent of survivorship. When real property is conveyed to a husband and wife, the deed must specify that a tenancy by the entirety is intended, or this intent must otherwise appear in the deed. 

     In Scialdore, the objecting creditor claimed that the deed did not create a tenancy by the entirety because the grantors did not acknowledge the tenancy by the entirety language inserted by the debtor, nor was the deed re-executed by the grantors after the insertion. Consequently, the debtor's interest was not exempt under Virginia law and not entitled to exemption under Bankruptcy Code §522(b)(2)(B). The debtor argued that the deed, although altered, specifically conveyed a tenancy by the entirety and is thus exempt under Virginia Law. 

     In Allen v. Parkey, the Virginia Supreme Court held that an unsigned memorandum, attached to a deed that was complete and duly signed, had no effect. The facts in Parkey are substantially similar to Scialdore. 

     In Scialdore, the debtor altered the delivered deed, seeking to establish a tenancy by the entirety which was not specified originally. Accordingly, the language added by the debtor, "as tenants by the entirety with right of survivorship as at common law," had no effect on the type of estate conveyed to the grantees. The Court ruled, "Once the tenancy by the entirety language is removed, the deed does not manifest intent to create a survivorship estate. To the contrary, the deed unequivocally states that the conveyance was made to the debtor as his sole and separate estate free of any interest of his wife." 

     The creditor's objection to the exemption was therefore sustained.

Bankruptcy: Chapter 13 Plan Confirmation - Good Faith

     Two cases decided by Judge Tice of the United States Bankruptcy Court, Eastern District of Virginia, demonstrate a lack of good faith in the debtors' proposed Chapter 13 bankruptcy plans.

     In the case of In Re Oliver, Judge Tice denied plan confirmation for several reasons: the low percentage of the repayment of debt (about ten percent to unsecureds), the length of the plan (only three years), the "peculiar nature" of the unsecured claims, and the fact that the petition was filed after another court concluded that a major debt listed in this plan was nondischargeable under the debtors' prior Chapter 7 petition. Each of these reasons went against a finding that the plan was "proposed in good faith" under Bankruptcy Code §1325(a)(3). The matter was brought before Judge Tice upon an objection by a bank, whose claim comprised 80% of the total unsecured debt.
     In the case of In Re Kasun, Judge Tice denied plan confirmation for two reasons: a lack of good faith (since the plan discriminated against the debtors' unsecured creditors) and the payment of a nonessential luxury item. The debtors, proceeding in bankruptcy without an attorney, purposed that they retain a sailboat, on which a secured creditor had a $32,000.00 lien, with a $600.00 per month payment, and for which the debtors paid a boat-slip charge of $172.00 per month, while the plan proposed paying unsecured creditors only 34.9% of their claims. The Bankruptcy Trustee filed the objection.
     The lesson of Oliver and Kasun - read Chapter 13 plans carefully, do not take proposals for granted and seek competent legal advice when necessary.

Bankruptcy: Poor Debtor's Exemption - Objection in a Chapter 13 Plan

     In the case of In re Bonner, Judge Tice of the United States Bankruptcy Court, Eastern District of Virginia, Richmond Division, ruled that a credit union, which did not perfect its lien on a car the debtor purchased with a credit union loan, could not prevent confirmation of the debtor's Chapter 13 plan. The Court did, however, sustain the credit union's objection to the debtor's claim of a $2,000 "poor debtor's exemption" in the car under Virginia Code §34-5.

     In Bonner the credit union maintained that its purchase money security interest, though not perfected as to third parties, could be enforced in a Chapter 13 case notwithstanding Bankruptcy Code §544(a). The Court ruled, though, that the avoidance powers under §544 extend to trustees in Chapter 13. The Court cited the case of In re Freeman, where another court had held that a Chapter 13 debtor shares the trustee's status as a hypothetical lien creditor under §544. Accordingly, the Court ruled that since either the debtor or trustee is deemed to have exercised the hypothetical lien creditor's rights at the time of filing, the transfer of the security interest by the debtor to the credit union had been nullified. The claim filed by the credit union was therefore unsecured, and the debtor had properly provided for it under the plan.
     Nevertheless, the Court ruled that pursuant to Virginia Code §34-5, the poor debtor's exemption could not be claimed against a debt for the purchase of such property or any part thereof. Unlike the exception included in Virginia Code §34-26(8), which provides only a valid purchase money security interest with priority over the exemption, the restriction in §34-5 is not conditioned on the creditor possessing an enforceable lien. Therefore, the Court reasoned that the credit union's failure to perfect its security interest simply had no bearing. Accordingly, the Court sustained the credit union's objection to the poor debtor's exemption.

Bankruptcy: Homestead Exemptions - Household Furnishings

     In the case of In Re: John W. Haynes, Jr., the United States Bankruptcy Court at Alexandria, Virginia, ruled that the debtor was entitled to claim as "poor debtor's" exemption from the bankruptcy estate two TV's, a VCR and a stereo as part of his "household furnishings" exempt under Virginia Code §34-26.
     In Haynes, the creditor, a bank, argued that the items claimed as exempt by the debtor were not the type of property that was necessary to run a household, unlike beds, dressers, stoves, eating utensils and other items listed in the statute.
     The Bankruptcy Court, however, stated that it did not read Virginia Code §34-26 so narrowly. In interpreting the statute, the Bankruptcy Court stated that it looked first to the statute's plain language; the Bankruptcy Court noted that the language of the statute was quite broad. The statute allows debtors to exempt from creditor process "all household furnishings", including the items listed in the statute, so long as their value does not exceed $5,000. The term "furnishings" does not necessarily exclude televisions, stereos and VCR's, and the statute includes "non-furniture" items -- such as eating utensils and plates -- as examples of "household furnishings." The Bankruptcy Court also noted that the statute did not contain the term "necessary," which was once included in an earlier version of the statute. The Bankruptcy Court stated that it did not view exceptions under the current statute as being limited to items necessary for maintaining a household. In addition, the Bankruptcy Court noted that longstanding Virginia precedent established that exemption statutes are to be construed liberally. Accordingly, the Bankruptcy Court overruled the creditor's objection concerning the electronic equipment.

Bankruptcy: Preferential Transfer - Purchase Contract

     In the case of Sigmon, Trustee v. Royal Cake Co. the United States District Court at Charlotte, North Carolina, reviewed a Bankruptcy Court ruling granting a trustee's objection to the return of a down payment on a purchase contract as an improper preferential transfer.

     The District Court found as fact that the debtor was the seller of certain machines who returned to a buyer corporation that corporation's down payment on a contract for the purchase of machines.
     The buyer corporation claimed that the down payment was collateral held in trust by the debtor on the buyer's behalf, and that, under North Carolina property law and federal bankruptcy law, the seller of the goods does not hold a property interest in such collateral.
     The District Court concluded that the Bankruptcy Court made a proper finding that the debtor did have a property interest in the down payment, and that the return of the payment was made on account of an antecedent debt for the benefit of the creditor. The District Court further concluded that the buyer corporation's claim that the payment was mere collateral or a deposit was flawed because the payment was actually the first payment for the machines purchased. By sending the payment check, the buyer was fulfilling its obligation under the sales contract, not merely guaranteeing future performance of its payment obligations. Once the debtor deposited the buyer's check into its own bank account, commingling the money with its other funds, the debtor had a right to withdraw, transfer or otherwise use the payment funds in any way it wanted. The debtor's ability to exercise complete dominion and control over the funds was sufficient to demonstrate an interest in property under the preferential transfer provision. Therefore, the Court concluded, the return of the down payment was a transfer of an interest of the debtor in the property.