Wicklund v. Robert D. Johnson Trust (In re Wicklund)

BAP No. WW-14-1424-KiFJu (BAP 9th Cir. March 15, 2016) (Unpublished)
The BAP for the 9th Circuit affirmed the bankruptcy court’s (W.D. Wa.) orders denying Jeffrey’s claim of homestead exemption and denying chapter 13 debtor's motion to alter or amend the order denying debtor's homestead exemption. The bankruptcy court’s conclusion was not clearly erroneous, under the facts, that debtor did not have a present intent to reside at the home in question at the time he filed his bankruptcy petition, or in the bankruptcy court’s finding that debtor failed to show a good faith intention to reside at the home as of the petition date. The bankruptcy court was not required to consider debtor’s declaration of homestead filed after the bankruptcy court’s decision, even though the court considered it in arriving at its decision denying his motion to alter or amend order. The bankruptcy court did not abuse its discretion in denying debtor’s motion for reconsideration. Debtor did not reside at the home on the date he filed his bankruptcy petition. He resided at a rental property. The home was leased to a tenant, from which debtor received rent. The only evidence that debtor might intend to reside at the home was debtor’s self-serving declaration testimony, which was contradicted by debtor’s § 341(a) testimony where he stated he would “probably eventually live there.”
Procedural context:
Chapter 13 creditor objected to debtor's claim of homestead objection, and court granted motion over debtor's opposition. Debtor appealed to BAP for 9th Circuit.
Debtor filed chapter 13, listing on Schedule A, debtor listing real property in Everett (“home”) with a value of $318,000 and encumbered by a secured claim in the amount of $168,337.31. Home, which was wife’s childhood home, had been acquired from wife’s parents through inheritance. On Schedule C, debtor claimed a Washington homestead exemption in the home in the amount of $125,000. Husband did not schedule wife as co-owner. At the § 341(a) meeting of creditors, debtor testified that he received rent from a tenant at the home under a lease, and did not reside there, but would “probably eventually live there.” A creditor objected to the exemption claim, and the bankruptcy court sustained the objection. Debtor filed a motion to reconsider under Rule 59/FRBP 9023, asserting that he had filed a declaration of homestead under Washington state law after the court’s denial of his homestead exemption and his wife’s co-interest in the home.
Kirscher, Faris, and Jury

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