United States Bankruptcy Court, M.D. Florida, Jacksonville Division.
*600 Armistead W. Ellis, Jr., Jacksonville, Fla., for debtor.
Brett P. Abner, Jacksonville, Fla., for Fadel Elbadramany.
Gregory K. Crews, Jacksonville, Fla., trustee.
GEORGE L. PROCTOR, Bankruptcy Judge.
This case is before the Court upon the objection filed by Fadel Elbadramany, a creditor, to property claimed exempt by the debtor. Upon the evidence presented, the Court makes the following findings of fact and conclusions of law:
1. Robert Douglas Stanley (debtor) and Ardyth Ann Stanley were husband and wife at all relevant times.
2. On October 17, 1989, debtor filed a voluntary petition under Chapter 7 of the Bankruptcy Code. 11 U.S.C. § 101 et seq. (the Bankruptcy Code). His wife did not file separately or join in this petition.
3. On October 17, 1989, the debtor filed his Schedule B-4 "Property Claimed as Exempt" and listed numerous items of personal property as being jointly owned with his wife as tenants by the entirety.
4. On December 29, 1990, Fadel Elbadramany (Elbadramany), a creditor, timely filed an objection to the debtor's claim of exemption. Elbadramany contends that the exemptions claimed by the debtor exceed the allowance under Article X, Section 4, Florida Constitution, and Chapter 222, Florida Statutes. Debtor replies that the items are exempt from administration because the property is held by he and his wife as tenants by the entireties (the Joint Property). Specifically, debtor has claimed *601 the following Joint Property as exempt and has estimated value as:
Household goods $ 50.00 Supplies 20.00 Furnishings 1,000.00 Books 100.00 1983 Ford van 5,000.00 1984 Ford truck 3,500.00
Debtor did not delineate what specific items of personal property comprise these various categories.
5. Debtor's schedules further establish that the following property is owned solely by the debtor:
Wearing apparel, jewelry,
firearms, sports equipment,
and other personal possessions $690.00
Wedding ring 100.00
Filing cabinet 50.00
(the Solely Owned Property).
6. The Court accepts the testimony of Elbadramany's expert that debtor and his wife own the following Joint Property which has a fair market value for each items as follows:
1983 Ford Conversion Van (Titled as Mr. "or" Mrs. Stanley) $ 4,875.00 1984 Ford Pick-up Truck (Titled as Mr. "or" Mrs. Stanley) $ 3,975.00 1978 Sears Lawn tractor, cart and spreader $ 125.00 Barn 2 step ladders 20.00 1 extension ladder 15.00 Tool box w/small asst. tools 15.00 Garden tools 15.00 2 gas cans 6.00 Qtz. heater 15.00 Laundry Washer 90.00 Dryer 90.00 Leaf blower 15.00 Telephone 10.00 Fan 5.00 Entry Hat rack 15.00 Credenza 60.00 Wall mirror 12.00 Living Room L-shaped sectional sofa 250.00 *602 Large rocker $ 50.00 Lamp table 45.00 Lamp 5.00 Stereo 45.00 Coffee table 75.00 Large basket, used as magazine holder 15.00 2 ceiling fans 50.00 Fireplace equipment 25.00 Collection of pewter, consisting of 10 plates, pitcher, 5 stems, salt and pepper shakers, candle holder 95.00 Windsor chair, damaged 30.00 2 lamps 15.00 Chair 65.00 Framed painting 25.00 6 framed photos, pictures 30.00 V.C.R. 50.00 Television 65.00 Cabinet 20.00 Porch Gas grill 35.00 2 swings 30.00 Wicker base dining table, glass top 40.00 Wicker chair 20.00 Kitchen Kirby Vacuum 40.00 Iron and board 18.00 Range 95.00 Refrigerator 180.00 Microwave 35.00 4 bar stools 60.00 Telephone 12.00 Coffee maker 12.00 Blender 10.00 Food processor 25.00 Popcorn popper 3.00 Pots and pans 35.00 4 slice toaster 10.00 Stainless 10.00 Wok 3.00 Waffle iron 5.00 Bedroom Desk 95.00 King size bed w/bedding 120.00 2 bedside tables 70.00 Dresser w/mirror 95.00 Television 35.00 Chest 90.00 File cabinet 50.00 Bedroom 2 Double bed w/bedding 90.00 Dresser 80.00 2 bedside tables 60.00 Ceiling fan 20.00 Small lamp 2.00 Bedroom 3 Lingerie chest 55.00 *603 Double bed w/bedding $ 90.00 Dresser w/mirror 80.00 Desk w/bookcase 70.00 Ceiling fan 20.00 Hall Table 20.00 Lamp 3.00 Asst. bed and bath linens $ 35.00 __________ Total Joint Property $12,171.00
7. The Court further accepts the testimony of the expert that the following items are Solely Owned Property and have a fair market value for each item as follows:
410 shotgun $ 65.00
Man's white gold wedding band 75.00
Man's class ring 20.00
Approximately 70 items of hanging clothing 210.00
Golf clubs, bag, etc. 100.00
_______
Total $470.00
8. The total value of the Joint Property and the Solely Owned Property is $12,641.00.
9. Debtor testified that he did not know the meaning of "tenancy by the entirety" and that no written records exist which would substantiate the fact that the Joint Property was held by the debtor and his wife as tenants by the entireties. Mrs. Stanley testified that items of personal property were, on occasion, purchased by her, without the debtor's knowledge, but that they considered those items as "theirs." Both the debtor and his wife testified that the Joint Property is located at their residence and that these items were considered not "his" or "hers" but "theirs."
1. Upon commencement of a case under the Bankruptcy Code, an estate is created comprising property in which the debtor has a legal or equitable interest as of petition date, § 541(a) of the Bankruptcy Code. However, an individual debtor may exempt property from his/her bankruptcy estate by claiming certain exemptions authorized by § 522 of the Bankruptcy Code.
2. Section 522 of the Bankruptcy Code provides that a state may preclude use of the exemptions permitted under federal law and limit a debtor's rights to only those exemptions provided under state law. The State of Florida has exercised this privilege. § 222.20, Florida Statutes (1989).
3. Under Florida law, an individual is entitled to exempt $1,000.00 worth of personal property. F.S.A. Const. Art. X, § 4 (1989).
4. Under § 522(b)(2)(B) of the Bankruptcy Code, an individual is entitled to exclude from his bankruptcy estate ". . . any interest in property in which (he) . . . had, immediately before the commencement of the case, an interest as a tenant by the entirety . . . to the extent that such interest as a tenant by the entirety . . . is exempt from process under applicable non-bankruptcy law." See also In re Ciccarello, 76 B.R. 848 (Bankr.M.D.Fla.1987); In re Lunger, 14 B.R. 6 (Bankr.M.D.Fla.1981); cf. In re Koehler, 6 B.R. 203 (Bankr.M.D. Fla.1980).
5. Florida state courts recognize that estates by the entireties can exist in both personal and real property, a position which the federal courts sitting in Florida *604 have followed. In re Peeples, 105 B.R. 90 (Bankr.M.D.Fla.1989); also see Sheldon v. Waters, 168 F.2d 483, 484 (5th Cir.1948); Bruce v. McClure, 220 F.2d 330, 333 n. 2 (5th Cir.1955).
6. Under Florida law, property held by a husband and a wife in an estate by the entireties belongs to neither individual spouse but to a separate and distinct entity referred to as the "unity" or "the marriage." In re Peeples, supra; Sheldon v. Waters, supra, at p. 484; Mesa Petroleum Company v. Coniglio, 16 B.R. 1015 (M.D.Fla.1982).
7. The primary issue raised in this case is whether the Joint Property claimed by the debtor as exempt is owned by he and his wife as tenants by the entireties under Florida law and is properly excluded from the debtor's estate.
8. Elbadramany asserts that the Joint Property is not owned by the debtor and his wife as tenants by the entireties; he suggests one-half of the Joint Property valued at $6,085.50 constitutes the debtor's interest in the Joint Property and is property of this estate subject to the claims of creditors. Further, he argues the Solely Owned Property, valued at $470.00 is property of this estate and is subject to the claims of creditors. After allowance for the $1,000.00 personal property exemption provided by Article X, § 4(a)(2) of the Florida Constitution, Elbadramany asserts that the debtor's interest in the non-exempt value of his interest in the Joint Property and the Solely Owned Property is $5,555.50.
9. "It is the burden of the person claiming an exemption to demonstrate his or her entitlement to it." In Matter of Estridge, 7 B.R. 873 (Bankr.M.D.Fla.1980).
10. "A viable tenancy by the entirety, with regard to either realty or personalty, must possess always and at the same time the following characteristics of form: unity of possession (joint ownership and control); unity of interest (the interests must be the same); unity of title (the interests must originate in the same instrument); unity of time (the interests must commence simultaneously); and the unity of marriage." First National Bank of Leesburg v. Hector Supply Company, 254 So. 2d 777 (Fla. 1971). See also In re Golub, 80 B.R. 230 (Bankr.M.D.Fla.1987).
11. Further, in Great Southwest Fire Insurance Company v. Dewitt, 458 So. 2d 398, 400 (Fla. 1st DCA 1984), the Court held: "Our Supreme Court has held that in matters involving personalty, in order to create a tenancy by the entirety, `not only must the form of the estate be consistent with entirety requirements, but the intention of the parties [to create the estate] must be proven.'"
12. The scant evidence in the instant case shows that the debtor has no documentary evidence to verify that these items of personalty are held in form of tenancy by the entireties. The only evidence the Court has is the self-serving declarations of the debtor and his wife that they had the requisite intent to create an entireties estate, because they believed the property to be "theirs." The debtor and his wife did not go into detail as to their acquisition of these items of personal property. However, the wife's testimony clearly establishes that at least certain, if not all, of the Joint Property was purchased by her separately from and without knowledge of the debtor.
13. The tenancy by the entireties concept though, as applied to personal property, requires some quantum of proof of intent. First National Bank v. Hector, supra, at p. 781; also see In re Golub, supra, at p. 233. The proof must assure that the tenancy was not a hurried, after-the-fact creation used for purposes of insulating property from the claims of creditors of one of the spouses. Sterrett v. Sterrett, 401 Pa. 583, 166 A.2d 1 (1960); Hagerty v. Hagerty, 52 So. 2d 432 (Fla.1951).
14. The burden of proving intent to create a tenancy by the entireties cannot be met solely by the testimony of the debtor or spouse at the hearing on the objection to the claimed exemption. In re Spatola, 65 B.R. 49 (Bankr.S.D.Fla.1986) and In re Marchini, 45 B.R. 187 (Bankr.S.D.Fla. 1984).
15. This Court notes that in In re Luna, 100 B.R. 605 (Bankr.S.D.Fla.1989), *605 holds that self-serving declarations alone are sufficient to prove intent. This Court adopts the findings of Marchini and Spatola since they are consistent with the holdings of the Florida Supreme Court and declines to adopt the reasoning in the Luna case.
16. The debtor and wife did not have the requisite intent to create a tenancy by the entireties at the time the Joint Property was acquired. The debtor has not sustained his burden of showing that he is entitled to exempt the Joint Property from his bankruptcy estate.
17. The Court finds that the Joint Property is owned by the debtor and wife as tenants in common and not by the entireties.
18. The debtor is entitled to select $1,000.00 worth of personal property, as provided by Article X, § 4(a)(2) of the Florida Constitution, and the remaining items of personal property shall be surrendered to the Trustee.