BRUCE A. HARWOOD, Bankruptcy Judge.
Before the Court is creditor Haley Charest's Objection to Exemption (the "Objection"). In the Objection, Charest (the "Creditor") objects to debtor Joseph Iodice (the "Debtor") exempting as homestead property two parcels of real property under RSA 480:1. The Debtor has conceded that one of the claimed parcels is not exempt,
This Court has authority to exercise jurisdiction over the subject matter and the parties pursuant to 28 U.S.C. §§ 1334, 157(a), and U.S. District Court for the District of New Hampshire Local Rule 77.4(a). This is a core proceeding in accordance with 28 U.S.C. § 157(b).
The facts related to this matter are straightforward and undisputed. The Debtor filed his chapter 7 petition on May 16, 2013 (the "Petition Date"). The Creditor promptly objected to the Debtor's claimed homestead exemption. Doc. 10. The parties agreed to submit a stipulated record of the facts and forgo an evidentiary hearing.
The parcels of real property still at issue are located at 399 Hurricane Hill Road in Mason, New Hampshire. The parcels are contiguous. The smaller parcel abuts Hurricane Hill Road and is approximately 3.75 acres ("Lot 17-1"). The larger parcel ("Lot 19") runs along the rear of Lot 17-1—the side furthest from and running parallel to Hurricane Hill Road—and extends well beyond it to one side.
The Creditor took the Debtor's deposition on December 12, 2013, asking the Debtor several questions about how he was then using Lot 19:
The Debtor supplemented these statements with an affidavit submitted as Debtor's Exhibit 6 in this proceeding. In this affidavit, the Debtor states that about three years prior to the Petition Date
In New Hampshire, "[e]very person is entitled to $100,000 worth of his or her homestead, or of his or her interest therein, as a homestead." RSA 480:1. The Debtor has claimed that both Lots 17-1 and 19 constitute his homestead. Bankruptcy Rule 4003(c) places the burden of proof on the Creditor to establish that the claimed exemption is improper. Under New Hampshire law, "the homestead claimed by the [d]ebtors was created by the New Hampshire legislature as a matter of public policy and is to be construed liberally."
The New Hampshire Supreme Court has unwaveringly explained the characteristics of the homestead exemption. "`Homestead' means home place, or place of the home."
In
The Supreme Court has not permitted property to be claimed as exempt where it was not actually used as the homestead. In
Here, it is undisputed that three years prior to the Petition Date, the Debtor was actively using Lot 19 as part of his homestead in pasturing horses there and gathering firewood. It is also undisputed that in December of 2013 the Debtor was not using Lot 19 for any purpose. It is unclear from the record exactly when the Debtor stopped using Lot 19—just that after the Petition Date he was not using it. When the Debtor used Lot 19 in connection with Lot 17-1, he established it as part of the homestead because he "actually and conveniently" used Lot 19 "in connection with" Lot 17-1, the Debtor's undisputed homestead.
At best, the Creditor has established that the Debtor temporarily stopped using Lot 19. However, a temporary absence from property that has been used as a homestead is not enough to change the homestead character of that property—absence must be coupled with an intent to abandon. Currier, 62 N.H. at 65. The Creditor has not produced sufficient evidence of such an intent. Given the liberal construction of the homestead exemption and that the burden of proof is on the Creditor, the lack of evidence of intent to abandon is fatal to the Objection.
The Court does not find it necessary to consider whether an easement exists from Hurricane Hill Road, across Lot 17-1 to Lot 19. Even if such an easement existed, it would not change the analysis that the Debtor has established Lot 19 as part of his homestead and that the Creditor has not put forth sufficient evidence that the Debtor intended to abandon it.
Additionally, the Court does not find the evidence of value of Lots 17-1 and 19 germane in deciding whether the Debtor may claim the homestead exemption in both Lots. The Debtor is entitled to a $100,000 exemption in whatever property constitutes the homestead. Here the Court has determined that both Lots 17-1 and 19 are the Debtor's homestead. Any value in excess of $100,000 would not be exempt, but that potentiality has no bearing on the legal character of the property as homestead property.
The Court shall overrule the objection for the reasons stated. This opinion constitutes the Court's findings of fact and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052. The Court will issue a separate order consistent with this opinion.