JURY, Bankruptcy Judge:
Chapter 7
Debtors negotiated with Trustee to purchase the Corvette, but these negotiations broke down over price and terms of payment. Trustee filed a motion to compel turnover. Debtors then amended their Schedules B and C to claim an exemption in the full value of the Corvette, which was
After further briefing, the bankruptcy court decided the matter on the basis of stipulated facts presented by the parties. The court sustained Trustee's objection to Debtors' claimed exemption in the Corvette under § 522(g)(1)(A), granted Trustee's motion for turnover, and entered an order consistent with its ruling. Debtors appeal from that order. For the reasons set forth below, we AFFIRM.
Debtors owned a 1965 Corvette. In July 2011, Steven borrowed $80,000 from Robert. The loan was evidenced by a promissory note signed by Steven and which stated, among other things, that the note was partially secured by the Corvette. In connection with the loan, Steven gave Robert the original title certificate and keys to the vehicle but retained physical possession. Throughout the relevant dates, Steven was listed as the owner on the Corvette's title certificate.
Debtors filed their chapter 7 petition on December 30, 2014. Trustee was appointed to administer their bankruptcy estate. Debtors listed the Corvette in their initial schedules as a nonexempt asset with a value of $63,800 and showed that Robert held a nonpurchase money security interest on the vehicle.
On March 26, 2015, Robert filed a proof of claim (POC) for $45,000, showing $40,000 secured by the Corvette with the remainder unsecured.
Trustee later determined that Robert had not perfected his security interest in the Corvette prepetition under Nevada law because his security interest neither appeared on the state-issued certificate of title nor was he listed as a lienholder. Because the vehicle was in Steven's name and had not been claimed as exempt, Trustee demanded turnover of the Corvette for the benefit of the estate and creditors.
Robert amended his POC to include a copy of the promissory note and cancelled check for the initial loan to Steven. However, he provided no documents that showed his security interest in the Corvette was properly perfected under Nevada law.
During negotiations with Trustee over the Corvette, Debtors had the vehicle appraised by CarMax in Bakersfield, California. CarMax provided an "appraisal offer" of $23,000, and Debtors provided this offer to Trustee. Trustee agreed that Debtors could pay the amount of the appraised value less the 20% commission that it would cost him to sell the vehicle at auction, resulting in a total price of $18,400, with payments made over twelve months. The negotiations later broke down over the price and terms of payment.
As a result, Trustee filed a motion to compel turnover of the Corvette (Turnover Motion), asserting that the vehicle was property of the estate and that Robert's lien was unperfected. Trustee informed the bankruptcy court that he had demanded turnover of the Corvette or payment of its value by emails and a letter but that Debtors failed to cooperate.
Debtors also responded to the Turnover Motion, asserting that they did not initially claim an exemption in the vehicle because they believed that it was subject to a valid security interest. They further stated that once the negotiations with Trustee ended, they amended their schedules to reflect the exemption in the Corvette.
In a subsequent reply, Trustee asserted that he could avoid Robert's unperfected lien under §§ 544 and 550. He further argued that Debtors could not exempt the Corvette based on the provisions of § 522(g)(1)(A) because they had voluntarily transferred a security interest to Robert, citing
Debtors responded to the reply, arguing that there was no transfer of the vehicle but only transfer of the title and the keys. Therefore, according to Debtors, Trustee had not "recovered" the vehicle from a third party since it was always in Debtors' possession. Debtors also pointed out that there was no attempt to defraud or mislead the bankruptcy court as the vehicle had been listed in their schedules.
At the November 19, 2015 hearing on the Turnover Motion, Trustee informed the bankruptcy court that Debtors had claimed an exemption in the vehicle after he filed the motion. As a result, Trustee suggested continuing the matter "about 30 days and — or maybe 45 days," and stated: "I will file a[n] objection to the claim of exemption that could be heard at the same time as a motion to — for turnover of the vehicle." The bankruptcy court set the matter for a January 6, 2016 status conference on Judge Landis's calendar
On January 11, 2016, the bankruptcy court scheduled the matter for an evidentiary hearing on May 2, 2016. At the May 2, 2016 hearing, the parties advised the court that they had agreed to submit the matter on the basis of stipulated facts. The next day, the bankruptcy court entered an order setting May 9, 2016, as the deadline for filing the stipulation regarding the evidentiary record and closing the record as of that date. The court also set further dates for the parties to file their posthearing briefs.
The parties filed the stipulated facts as required. Trustee filed his post-hearing brief on May 16, 2016. Trustee argued that he raised a timely and sufficient objection to Debtors' claimed exemption in the Corvette under Rule 4003; i.e., Debtors amended their schedules to claim the exemption on November 5, 2015, and he objected
Debtors filed their post-hearing brief on May 23, 2016. Debtors asserted that Trustee had failed to file a timely objection to their exemption and that at no time during the November 19, 2015 hearing did the bankruptcy court acknowledge that Trustee's reply brief was an objection to Debtors' exemption. They further argued that at the November 19th hearing, Trustee was directed to file and place on calendar an objection within 45 days. Debtors also pointed out that the facts in
Debtors further asserted that § 522(g)(1)(A) was not applicable as there was no transfer of a security interest in the Corvette. According to Debtors, no transfer occurred because the promissory note did not contain a sufficient description of the collateral — a requirement for attachment under NRS 104.9203. For this argument, Debtors relied on the reasoning in
On May 27, 2016, Trustee filed a response which reiterated his previous arguments; i.e., his objection to Debtors' exemption set forth in his reply brief was sufficient to meet the requirements of Rule 4003 and § 522(g) applied.
On June 30, 2016, the bankruptcy court issued its oral ruling. First, the court found that Trustee's reply brief in support of the Turnover Motion was sufficient to constitute a timely objection to Debtors' claim of exemption in the Corvette under the holding in
On July 6, 2016, the bankruptcy court entered an order consistent with its oral
The bankruptcy court had jurisdiction pursuant to 28 U.S.C. §§ 1334 and 157(b)(2)(A), (B) and (E). We have jurisdiction under 28 U.S.C. § 158.
A. Whether the bankruptcy court erred in finding that Trustee timely objected to Debtors' claimed exemption in the Corvette under Rule 4003;
B. Whether the bankruptcy court erred in denying Debtors' claimed exemption in the Corvette under § 522(g)(1)(A); and
C. Whether the bankruptcy court erred in granting Trustee's Turnover Motion.
The issues raised in this appeal are subject to de novo review.
De novo means review is independent, with no deference given to the trial court's conclusion.
On appeal, Debtors contend that the bankruptcy court erred in granting Trustee's turnover request because the Corvette is an exempt asset. Their arguments regarding the bankruptcy court's error in denying their exemption essentially mirror those made in the bankruptcy court. First, Debtors contend that Trustee's objection to their exemption, which was raised for the first time in his reply brief in connection with the Turnover Motion, was not proper. According to Debtors, Trustee was required to file a separate document objecting to their exemption. Since the time has passed for doing so, Debtors maintain that the court should have allowed their exemption. Second, Debtors assert that § 522(g) is not applicable because they disclosed the vehicle in their schedules and only took the exemption after they obtained an appraisal and realized that they had not fully used their vehicle exemption. We are not persuaded by either of these arguments.
Rule 4003(b) governs objections to claims of exemption and states in relevant part:
212 B.R. at 630.
In support of its reasoning, the
In
Finally, in
The holding in
Finally, although Debtors contend otherwise, the November 19th hearing transcript does not convince us that the rule in
Section 522(g)(1), in relevant part, provides:
It is undisputed that Debtors did not conceal the Corvette, so subsection (B) is not at issue. Rather, our analysis centers on whether Debtors' grant of a security interest in the Corvette to Robert, who failed to properly perfect that interest, was in the nature of a voluntary transfer which prevents Debtors from asserting an exemption in the vehicle upon Trustee's recovery of the vehicle for the benefit of the estate. Without either a transfer or recovery, § 522(g)(1)(A) is inapplicable.
Whether Debtors transferred an enforceable security interest in the Corvette to Robert is a matter of Nevada law.
Under Nevada law, a "security agreement" is "an agreement that creates or provides for a security interest." NRS 104.9102(uuu). A "security interest," in turn, is "an interest in personal property... which secures payment or performance of an obligation...." NRS 104.1201(ii). Under the Uniform Commercial Code (UCC) as enacted in Nevada, a security interest attaches to collateral when it becomes enforceable against the debtor with respect to the collateral. NRS 104.9203(1). A security interest is enforceable against the debtor and third parties with respect to collateral only if:
NRS 104.9203(2). Unless the creditor's interest has attached to the collateral, the creditor has no enforceable interest in the collateral. Debtors have placed only subsection (c)(1) of NRS 104.9203(2) at issue
The record shows that Steven signed a promissory note in favor of Robert, dated July 1, 2011, and that a loan for $80,000 was made by Robert to Steven. The last sentence of the note states: "Principal and interest due is to be paid in full by August 1, 2016. This note is partially secured by 1965 Corvette automobile." Accordingly, the promissory note qualifies as a security agreement which by its terms "creates or provides for a security interest." NRS 104.9102(uuu);
Instead, Debtors state in conclusory fashion that they did not have a security agreement with Robert, but rather only a promissory note which did not contain a proper description of the collateral. Debtors argue that without a proper description of the collateral, Robert's security interest did not attach and therefore was unenforceable. As a result, Debtors contend that they did not make a transfer within the meaning of § 522(g)(1)(A). We disagree with these assertions. As explained below, Debtors did transfer a security interest to Robert under controlling state law.
First, contrary to Trustee's assertion, Debtors did not stipulate that they transferred a security interest to Robert. Rather, they agreed that they scheduled the Corvette as subject to a security interest held by Robert and that they "delivered the original title certificate and keys to the Corvette to Robert Wharton in July 2011."
Whether these facts constitute a "transfer" is a legal conclusion controlled by Nevada law. These stipulated facts are sufficient to show that Steven gave Robert an interest in the 1965 Corvette as a condition of obtaining the $80,000 loan, and that Robert held onto the title and keys to ensure repayment.
Second, Debtors' contention that the description of the collateral in the promissory note was inadequate is disingenuous. One treatise explains:
79 C.J.S.
In sum, Robert's security interest attached to the Corvette as all the requirements for attachment under Nevada law were met: value was given, Debtors had rights in the Corvette, and Steven authenticated (signed) the promissory note (security agreement) that provided an adequate description of the collateral. Robert's lien against the Corvette was thus enforceable. Moreover, Debtors agreed that they voluntarily gave Robert a security interest. Accordingly, the voluntary transfer element under § 522(g)(1)(A) has been met.
The case law cited by Debtors —
After the debtors filed a chapter 7 petition, the trustee sought to avoid the father's interest in the vehicle under § 544(a) and also filed an objection to the debtors' claim of exemption under § 522(g)(1)(A). The father conceded that he did not have a security interest in the vehicle. The bankruptcy court entered judgment in favor of the trustee on his action, but overruled his objection to the debtors' exemption in the vehicle in two separate orders. In the adversary order, the court noted that the debtors had not authenticated a written security agreement in favor of the father and thus the father did not possess an interest in the vehicle. Although the trustee filed the action under § 544(a) to avoid the lien, the court's order did not grant a § 544 avoidance but instead granted judgment for the trustee based on a declaration that no security interest existed.
In overruling the trustee's objection to the exemption, the bankruptcy court found that since there was no valid security agreement in favor of the father, the debtors did not make a prepetition voluntary transfer of an interest in the vehicle to him and thus § 522(g)(1)(A) was inapplicable. In short, since there was no lien, there was nothing to avoid or recover and thus § 522(g) was not applicable. On appeal, the bankruptcy appellate panel affirmed, essentially
Similarly,
After the sale, the debtor filed a motion seeking to enforce her exemptions in the vehicle. The trustee contended that § 551 applied to preserve the lien he had avoided for the benefit of creditors. The bankruptcy court disagreed, concluding that no security interest ever attached under Article 9 of the UCC because there was never a written security agreement authenticated by the debtor. The bankruptcy court held that without the avoidance of an underlying lien, § 551 did not apply. Accordingly, the court granted the debtor's motion to enforce her exemption claims against the funds.
Last, in
Unlike any of these cases, Debtors had voluntarily transferred a security interest in the Corvette to Robert which had attached and was enforceable under Nevada law.
Although Debtors transferred a security interest to Robert, that interest was not perfected. Nevada law requires the secured interest to appear on the state-issued certificate of title.
In its oral ruling, the bankruptcy court found that the recovery requirement under § 522(g) had been met even though Trustee had not filed an adversary proceeding. The court noted that it was Trustee's Turnover Motion and the threat of using his avoidance powers under § 544(a) which caused Debtors to amend their Schedules to claim the Corvette exempt and show that Robert's lien had been released. Since Debtors do not challenge any of these findings on appeal, those arguments are
Moreover, the Ninth Circuit has held that the word "recovers," as used in § 522(g), does not necessarily require a formal adversary action or proceeding; rather, the ordinary meaning of the word suggests that a trustee may "recover" property in a number of ways, including by merely using the threat of avoidance powers to induce a debtor or transferee to return the property to the estate.
In sum, all the requirements for application of § 522(g)(1)(A) have been met. Accordingly, Debtors are unable to claim an exemption in the Corvette.
With several exceptions not applicable here, under § 542, a trustee may seek turnover of estate property. Section 542(a) provides:
Steven was the sole owner of the vehicle listed on the title certificate and was in possession of the Corvette at all times. Accordingly, on the petition date, the vehicle became property of Debtors' estate whether it was exempt or not.
For the reasons stated above, we AFFIRM.