Paul v. Allred (In re Paul)

Citation:
In Re Paul, 8th Circuit Court of Appeals, No. 13-1747 (November 18, 2013)
Tag(s):
Ruling:
The 8th circuit Court of Appeals affirmed the ruling of the bankruptcy court and bankruptcy appellate panel, that the debtor (Paul) could not claim the homestead exemption on rental property where the debtor (Paul) did not reside. The court reasoned that the debtor and his family had “made their home elsewhere and had no intent to move” and had no “present intent to return to the rental property" thus preventing the debtor from claiming of homestead for the rental property.
Procedural context:
The trustee filed an objection claiming South Dakota’s homestead exemption did not cover the Spark Street property, because the debtor’s statements at the meeting showed he did not intend to live there at any point in the future. The debtor objected and the trustee moved for judgment on the pleadings. The bankruptcy court converted the trustee’s motion to a motion for summary judgment and, after giving the parties time to submit additional filings, granted the trustee’s converted motion and entered summary judgment. The debtor appealed to the BAP. The BAP affirmed the bankruptcy court’s decision. Paul timely appealed to this court.
Facts:
On May 11, 2012, debtor (Paul) filed a voluntary petition for Chapter 7 bankruptcy. Among his assets, debtor (Paul) listed real property located at 117 Spark Street, Lead, South Dakota (Spark Street property), which he claimed was exempt from his bankruptcy estate under South Dakota’s homestead exemption. In the petition, debtor (Paul) listed his new wife’s house as his address. On June 28, 2012, the trustee conducted a meeting of the creditors pursuant to 11 U.S.C. § 341(a). Debtor (Paul) purchased the Spark Street property in 1997 or 1998. Debtor lived at the Spark Street property for a period, but moved out fourteen or fifteen years ago. Since then, debtor (Paul) has rented the Spark Street property. And at the time of the § 341 meeting, debtor (Paul) said he did not intend to resume living at the Spark Street property.
Judge(s):
RILEY, Chief Judge, MELLOY and KELLY, Circuit Judges.

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