COLLEEN A. BROWN, Bankruptcy Judge.
The Trustee and the Debtor have filed cross-motions for summary judgment on the issue of whether, pursuant to 27 V.S.A. § 101 and 12 V.S.A. § 3023, the Debtor is entitled to claim a homestead exemption in her interest in the funds she is collecting under a promissory note that the Debtor received in consideration of her conveyance of her Vermont homestead property. For the reasons set forth below, the Court finds that the Debtor is entitled to claim the exemption.
This Court has jurisdiction over this contested matter and these motions for summary judgment pursuant to 28 U.S.C. §§ 1334 and 157(b)(2)(B).
On June 13, 2010, Joanne T. Greene (the "Debtor") filed a petition for relief under Chapter 7 of Title 11 of the United States Code (doc. # 1). Raymond J. Obuchowski (the "Trustee") was appointed interim trustee. In the initial filings, the Debtor did not schedule an interest in a promissory note dated May 12, 2009 (the "Promissory Note"), as an asset or an exemption, although she did list income from real property in the monthly amount of $792.00 on Schedule I (doc. # 1). On July 1, 2010, the Debtor amended her Schedule A to include the Promissory Note, with a current value of $76,060.80, and to describe the Debtor's Vermont homestead in Townsend, Vermont, sold in 2009 (the "Vermont Homestead Property"), and an eight-year, four-percent-per-annum mortgage held in the Debtor's name on the Vermont Homestead Property (doc. # 11). On the same date, the Debtor filed an amended Schedule C to claim an exemption in the amount of $76,060.80, in the Promissory Note, under 27 V.S.A. § 101 (doc. # 11). On July 15, 2010, the Debtor filed an amended Schedule B to include an "[i]nterest in proceeds of a promissory note from the sale of debtor's homestead in May 2009, and interest as legal title holder under Vermont law in mortgaged premises," and the Debtor valued that interest at $76,060.80 (doc. # 14, ¶ 35). On the same date, the Debtor filed an amended Schedule C, and again included the interest in the proceeds of the Promissory Note under 27 V.S.A. § 101 in the amount of $76,060.80 (doc. # 14). On July 24, 2010, the Trusted filed an objection to Debtor's claim of exemption (doc. # 15). On August 3, 2010, the Debtor amended her Schedule C to include a reference, for the first time, to 12 V.S.A. § 3023, as well as to this Court's decision, In re Oliver, 182 B.R. 699 (Bankr.D.Vt.1995) (Conrad, J.) (doc. # 16). On August 5, 2010, the Trustee filed a second objection to the Debtor's claim of exemption to respond to the Debtor's reliance upon Oliver (doc. # 17). The Debtor
Based upon the parties' JSOF and the record in this case, the Court finds the following facts to be undisputed and material:
Summary judgment is proper if the record shows no genuine issue as to any material fact such that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56; Fed. R. Bankr.P. 7056; see also Bronx Household of Faith v. Bd. of Educ. of the City of New York, 492 F.3d 89, 96 (2d Cir.2007). The moving party bears the burden of showing that no genuine issue of material fact exists. See Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004). A genuine issue exists only when "the evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The substantive law identifies those facts that are material; only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Factual disputes that are irrelevant or unnecessary are not material. Id. In making its determination, the court's sole function is to determine whether there is any material dispute of fact that requires a trial. Id. at 249, 106 S.Ct. 2505; see also Palmieri v. Lynch, 392 F.3d 73, 82 (2d Cir.2004). In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the moving party. See Beth Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield of New Jersey, Inc., 448 F.3d 573, 579 (2d Cir.2006). If the nonmoving party does not come forward with specific facts to establish an essential element of that party's claim on which it has the burden of proof at trial, the moving party is entitled to summary judgment. See Celotex Corp., 477 U.S. at 323-25, 106 S.Ct. 2548 ("One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses. . . the burden on the moving party may be discharged by `showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case"); see also Tufariello
The above standard applies even where the parties have filed cross-motions for summary judgment, and the Court must consider each motion independently. WorldCom, Inc. v. Gen. Elec. Global Asset Mgmt Servs. (In re WorldCom, Inc.), 339 B.R. 56, 62 (Bankr.S.D.N.Y.2006) ("Where, as here, a party has filed a cross-motion for summary judgment, the Court must pay particular attention to the parties' respective burdens of proof, persuasion and production. When faced with a cross-motion for summary judgment, the Court must consider the merits of each motion independently of each other."). The Court must examine each motion "on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration." Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir.2001).
The Court finds that there are no material facts in dispute and thus turns to the merits of the parties' arguments to determine if either party is entitled to judgment as a matter of law.
The Trustee objects to the Debtor's exemption, arguing that the Debtor abandoned her right to a homestead exemption when she sold the Vermont Homestead Property, and asserts that she had no intent to keep the homestead or to return to it at the time she sold it. As additional support for this abandonment theory, the Trustee points to the steps the Debtor took toward establishing residency, and a possible new homestead, in Florida, which he asserts compel the conclusion that the Debtor relinquished the protection of the applicable Vermont exemption statutes (doc. # # 15, 17, 44).
The Debtor's position is that she never abandoned her Vermont homestead, and is therefore entitled to claim the homestead exemption in the proceeds of its sale in this bankruptcy case. She insists that there are reasonable explanations for the steps she took toward establishing Florida residency, she always intended to return to Vermont if her move to Florida proved unsuccessful, and, in that event, she could regain her former homestead, through a foreclosure action, if the obligors on the Promissory Note were to default (doc. # # 20, 22, 43). Alternatively, the Debtor argues that her move to and return from Florida, and her intent and motivations with respect to these moves, are irrelevant because the proceeds from the sale of her homestead property are exempt under the pertinent statutes and case law (doc. # # 20, 22, 43). Additionally, the Debtor's schedules show that, on the date she filed her bankruptcy petition, she owned no real property and the funds she is collecting under the Promissory Note arose directly from her sale of the Vermont Homestead Property.
This contested matter turns on two Vermont statutes: one that defines the Vermont homestead exemption and one that specifies the circumstances under which property is exempt from trustee process. These statutes, 27 V.S.A. § 101 and 12 V.S.A. § 2032, provide as follows:
27 V.S.A. § 101 (2011);
12 V.S.A. § 3023 (2011). Of significant import is the fact that neither statute mentions the proceeds of a homestead.
Reviewed in the context of these statutes, the instant facts present a case of first impression in Vermont and a novel question of law. While there are dozens of cases from other states dealing with the exemption of proceeds from the sale of homestead property, all of those cases consider proceeds that are delivered in a single payment at the time of sale. The parties have not cited, and the Court has not found, a single case that addresses the standard to be applied to a proposed exemption of proceeds from the sale of homestead property in the form of a stream of payments. Additionally, there does not appear to be any case law addressing the applicability of the homestead exemption to proceeds when a person sells her homestead property in state A, thereafter buys an interest in homestead property in state B, then returns to state A at a time when she still has a continuing interest in the proceeds of the homestead property in state A and no longer has a homestead interest in state B or in any other property.
Therefore, the Court must establish the standard for determining whether sale proceeds paid in the form of a stream of payments are exempt that adheres to the principles set out in the Vermont homestead exemption statutes, is consistent with other applicable jurisprudence, and implements state and federal exemption policy. In doing so, the Court proceeds with caution and will grant the Debtor an exemption in homestead proceeds only if exemption policy, Vermont jurisprudence, and bankruptcy case law in this District unequivocally support that outcome.
This Court has addressed the allowance of Vermont homestead exemptions in the context of many different fact patterns. See, e.g., In re Detko, 290 B.R. at 499-500 (Bankr.D.Vt.2003) (collecting cases). While the instant case presents unique facts and circumstances, Vermont law is clear that any analysis of an individual's right to a homestead exemption must begin with the recognition that there is a strong policy basis for construing exemptions generously in favor of debtors:
Detko, 290 B.R. at 499.
Application of this policy requires a balancing of the intent of the policy and import of pertinent case law, against the particular language of the subject statutes and facts underlying the Debtor's claim for this exemption. The factors that tip the scale against giving significant weight to these policy considerations are, first, that the statute is silent with regard to proceeds, and, second, that the Debtor is not seeking to preserve a home for the family or to protect the family as a unit, but rather to preserve a stream of income to cover a senior adult's daily living expenses. Tipping the scale in the other direction, and giving deference to this policy, are old Vermont cases that categorically permit the exemption of proceeds from trustee process, see Hastie, 57 Vt. 293, 1884 WL 6640, 1884 Vt. LEXIS 35 (Vt.1884); Locke, 45 A. 226, 71 Vt. 343 (Vt. 1899), and two recent bankruptcy cases, concluding that the proceeds from the sale of a homestead may be exempt under the Vermont homestead exemption statute, see Oliver, 182 B.R. at 700-01 (noting that a Vermont debtor could have exempted proceeds from the conveyance of her Connecticut homestead under both 27 V.S.A. § 101 and 12 V.S.A. § 3023 had the transaction taken place in Vermont and finding that "a debtor in Vermont may use 12 V.S.A. § 3023 to exempt proceeds of the sale of property in another state which was exempt under the laws of that state at the time of sale, if that property would also have been exempt in Vermont"); Detko, 290 B.R. at 502 (citing Oliver and concluding that a Vermont debtor may exempt the proceeds from her Vermont homestead property upon a potential sale). This jurisprudence persuades the Court to analyze the question presentenced from a starting point that construes the exemption law in favor of the Debtor.
The date of the filing of the petition for relief determines the right of a debtor to claim a homestead exemption. Evans, 51 B.R. at 50; In re White, 18 B.R. 95, 96 (Bankr.D.Vt.1982). Where a debtor owns real property, the Court must inquire as to whether the debtor both owned and occupied the property on the date of the petition.
Whether homestead proceeds are exempt turns on state law, and the law varies from state to state. "The proceeds of a voluntary sale of a homestead may be absolutely exempt, exempt if reinvested in another homestead, or exempt for a designated period." 40 C.J.S. Homesteads § 38 (2011); see also 9A AM. JUR 2D Bankruptcy § 1458 (2011). The exempt status of the proceeds of a voluntary sale of the homestead depends upon the language of the applicable exemption statutes, and here the Debtor chose to claim exemption under Vermont state law. Although the Vermont courts have not addressed this question in the context of a bankruptcy filing, they have addressed it in the context of vulnerability of funds to trustee process. Vermont law on this issue is straightforward and absolutely clear.
In construing the pertinent Vermont statutes, the Court finds guidance in decisions from both the state court and this Court. In Oliver, the debtor, a new Vermont resident, claimed a right to a homestead exemption, under 27 V.S.A. § 101 and 12 V.S.A. § 3023, in the proceeds of a promissory note and mortgage where a divorce decree awarded the debtor's ex-spouse the homestead located in Connecticut and left her holding a promissory note and mortgage on her former homestead. Oliver 182 B.R. at 699-700. The Court found that the debtor could claim the proceeds exempt under both statutes. Id. at 700. As to 27 V.S.A. § 101, the Court stated that, prior to the divorce, the debtor would have been able to claim a homestead interest in the property. Id. Following the divorce and the execution of the promissory note, the debtor's interest was still protected under Vermont law by virtue of the 12 V.S.A. § 3023 "because [the promissory note and mortgage] represent the proceeds of a conveyance of exempt property." Id. The homestead was exempt under Connecticut law at the time of the conveyance, and the Court considered the "language of 12 V.S.A. § 3023 [to be] plain and unambiguous" to dictate a finding that the debtor had a right to claim an exemption in the proceeds of such a conveyance. Id. The Court concluded, "Vermont's legislature intended that its citizens should be able to exempt [up to the maximum amount of the current statutory homestead exemption] in value of their homesteads, 27 V.S.A. § 101, as well as their right to receive the proceeds from the sale of that homestead. 12 V.S.A. § 3023." Id.
Therefore, this Court concludes that the proceeds from the sale of a homestead are exempt under the Vermont homestead exemption statute, to the same extent that the Vermont real property homestead would be, subject to any restrictions state law imposes.
The Oliver Court set forth no restrictions regarding the Debtor's exemption of proceeds of the conveyance of exempt homestead property. This is consistent with Vermont Supreme Court decisions examining the early versions of 12 V.S.A. § 3023. In Locke, the defendant conveyed his homestead in exchange for a note, and subsequently vacated the premises. Locke v. Post, 45 A. 226, 71 Vt. 343 (Vt.1899). The Locke court rejected the plaintiff's arguments that, because the defendant did not either establish a new homestead or
Id. Similarly, in Hastie, the Vermont Supreme Court held that a trustee was not chargeable on the proceeds of an annuity granted in exchange for the defendant's conveyance of exempt property. Hastie v. Kelley, 57 Vt. 293, 295, 1884 WL 6640, at *2, 1884 Vt. LEXIS 35, *3-4 (Vt.1884). The court noted:
Id. at 296, 1884 WL 6640, at *3, 1884 Vt. LEXIS 35, at *5.
The Oliver, Locke, and Hastie cases all declare that the proceeds from the conveyance of exempt property are themselves exempt, regardless of whether the conveyance was voluntary or involuntary.
Some states have temporal requirements that limit the time period during which homestead proceeds are exempt. See COLO.REV.STAT. § 38-41-207 (2007) (identifying proceeds from the sale of the homestead as exempt for a period of two years); TEX. PROP.CODE ANN. § 41.001(c) (proceeds of a sale of a homestead are not subject to seizure for a creditor's claim for six months after the date of sale) (2001). Some states limit the proceeds exemption to funds that are slated to be applied to another homestead property. See OR.REV. STAT. § 18.395(2) (sale proceeds exempt for a period not exceeding one year if held with the intention to procure another homestead therewith) (2009); WIS. STAT. § 815.20 (2007) (identifying proceeds from the sale of the homestead as exempt for two years if held with the intention to procure another homestead with the proceeds). Some states prohibit a debtor from exempting surplus proceeds if the debtor acquires a new homestead property. See Orange Brevard Plumbing & Heating Co. v. La Croix, 137 So.2d 201, 206 (Fla.1962) (interpreting the state's homestead exemption provision, which was silent on proceeds, as extending to proceeds, but "only so much of the proceeds of the sale as are intended to be reinvested in another homestead may be exempt . . . [a]ny surplus over and above that amount should be treated as general assets of the debtor").
Vermont has no such restrictions set out in either its homestead statute or
Taking into account the intent of the statute, Vermont case law prohibiting trustee process against homestead proceeds, and the critical role of the petition filing date, the Court establishes the following two-part test to determine whether a debtor may exempt the proceeds from the sale of property under the Vermont homestead statute: 1) whether the funds the debtor seeks to exempt are proceeds derived from the sale of an exempt homestead property; and 2) whether the debtor held no ownership interest in any homestead property, other than the proceeds, on the petition date.
Here, the answer to both inquiries is yes. On the date of the bankruptcy filing, the Debtor owned no homestead property and did not claim a homestead exemption in any property other than the proceeds from the sale of her Vermont residence. There is no dispute that the Vermont residence qualified as her homestead on the date the Debtor sold it, or that the proceeds in question were solely derived from the sale of that homestead property. The fact that the Debtor may have owned and occupied property in Florida after she sold her Vermont residence, and before she filed her bankruptcy petition, is of no legal significance because the controlling date for determining a debtor's right to exemptions is the date of the bankruptcy filing, and on that date the Debtor owned no other homestead property. Likewise, the fact that the Debtor's right to collect proceeds under the Promissory Note began before, and continued during, the Debtor's ownership of a Florida homestead, does not alter the character of the proceeds as being unequivocally and solely proceeds of her Vermont homestead property both on the date of sale and the date of her bankruptcy filing. Lastly, the length of time that has elapsed since the sale of the Vermont Homestead Property is irrelevant because Vermont has not attached any temporal restrictions to the prohibition of collection of homestead proceeds with respect to protection from trustee process and bankruptcy court case law directs all homestead analysis to the facts as they exist as of bankruptcy filing date.
In sum, in scrutinizing the Debtor's eligibility to claim this exemption, the Court
The Trustee argues that the Debtor's steps towards establishing residency clearly indicate she attempted to establish a new homestead in Florida and, in so doing, the Debtor extinguished any homestead interest in the Promissory Note proceeds and any protections afforded by 12 V.S.A. § 3023. He asserts that to exempt the proceeds, the Debtor had the burden of showing that she did not establish Florida homestead and always intended to return to Vermont. If this were the proper test, it would be a very close call, and the Court would weigh the voluntary nature of the Debtor's sale of her homestead, her move to Florida, and the surrounding exigencies. However, that analysis, and indeed the two-part test of whether the Debtor owned and occupied the homestead property, applies only to real property, and is inapplicable when a debtor seeks to exempt cash under the homestead exemption.
For the foregoing reasons, the Court concludes that the Debtor may claim the proceeds of the homestead property as exempt, pursuant to 27 V.S.A. § 101. Therefore, the Court denies the Trustee's motion for summary judgment, grants the Debtor's motion for summary judgment, and overrules the Trustee's objection to the Debtor's claim of an exemption in the Promissory Note.
This memorandum of decision constitutes the Court's findings of facts and conclusions of law.
Based upon the analysis set forth in a memorandum of decision of even date, this Court declares that the test for determining whether, pursuant to 27 V.S.A. § 101, cash may be exempt under the Vermont homestead exemption statute is twofold: the debtor must demonstrate that the cash is derived from the sale of real property that qualified as a Vermont homestead at the time of sale and that the debtor does not hold an interest in any other homestead property on the date of the bankruptcy petition. Applying this test to the undisputed material facts presented, the Court determines that the Debtor has established her right to exempt from the bankruptcy estate the funds she is collecting under a promissory note that the Debtor received in consideration of her conveyance of her Vermont homestead property.
Accordingly, IT IS HEREBY ORDERED that:
SO ORDERED.
