M.M. v. Dist 0001 Lancaster Co. School

United States Court of Appeals
For the Eighth Circuit
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No. 12-1733
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Curtis Arlen Nessan
lllllllllllllllllllllAppellant
v.
John S. Lovald
lllllllllllllllllllllAppellee
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Appeal from United States District Court
for the District of South Dakota - Pierre
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Submitted: October 17, 2012
Filed: December 5, 2012
[Unpublished]
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Before RILEY, Chief Judge, COLLOTON and GRUENDER, Circuit Judges.
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PER CURIAM.
Curtis Nessan filed for Chapter 7 bankruptcy on November 8, 2010. Among
his assets, he listed a 2002 Chevrolet Silverado and a Triton boat with a motor and
trailer. Nessan had financed the purchase of the truck and boat by granting BankWest
a security interest in them. At the time of filing, BankWest’s security interest

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exceeded the value of the property. Nessan claimed a one-dollar exemption each for
the truck and boat.
When BankWest financed Nessan’s purchase of the truck and the boat, it also
sold him a disability credit insurance policy, which was issued by AIG Insurance
(“AIG”). Nessan later became disabled, and AIG commenced monthly payments to
BankWest to service Nessan’s loans in satisfaction of the policy. AIG, however,
stopped making payments, which, according to Nessan, violates its policy. Nessan
intends to sue AIG for specific performance of the policy and damages for bad-faith
refusal to pay. On his asset schedule, Nessan valued this legal claim at one dollar and
took a one-dollar exemption for the claim.
Trustee John Lovald (“Trustee”) objected to Nessan’s exemption of the legal
claim and moved for “all asset equity created by the application of AIG insurance
policy payments upon the secured loan at BankWest” to be declared property of the
estate. The bankruptcy court ordered that any amount recovered on the claim against1
AIG in excess of one dollar would become property of the estate. The Trustee then
sent Nessan a check for three dollars in satisfaction of his claimed exemptions and
instructed him to deliver the truck and boat to BankWest. Nessan refused to deliver
the property, arguing that the bankruptcy court’s order did not support the Trustee’s
request. In response, the Trustee filed another motion with the court, asking it to
order Nessan to turn over the truck and boat. The Trustee also asked the bankruptcy
court to order that Nessan “not contrail the manner in which the AIG insurance claim
is negotiated or processed prior to payment.” The bankruptcy court granted the
motion and ordered Nessan to deliver the truck, boat, and legal claim against AIG to
the Trustee.
The Honorable Charles L. Nail, Jr., United States Bankruptcy Judge for the1
District of South Dakota.
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Nessan appealed to the district court, arguing that “[u]nder South Dakota2
exemption law a debtor claims a specific item of property exempt, not just an interest
in that item of property.” Therefore, he argued, his one-dollar exemptions in the
truck, boat, and legal claim against AIG exempted those items from the bankruptcy
estate in their entirety. The district court disagreed and affirmed the decision of the
bankruptcy court. Nessan now appeals.
“[W]e review the bankruptcy court’s interpretation of the Bankruptcy Code de
novo and its findings of fact for clear error.” In re Zahn, 526 F.3d 1140, 1142 (8th
Cir. 2008) (quoting In re Farmland Indus., Inc., 397 F.3d 647, 650 (8th Cir. 2005)).
“Although the district court’s conclusions about the bankruptcy court’s decision may
carry some persuasive weight, our appellate review of the bankruptcy court’s decision
is independent of the district court’s opinion.” In re Foust, 52 F.3d 766, 768 (8th Cir.
1995).
“When a debtor files a Chapter 7 bankruptcy petition, all of the debtor’s assets
become property of the bankruptcy estate . . . .” Schwab v. Reilly, 560 U.S. ---, 130
S. Ct. 2652, 2657 (2010); see also 11 U.S.C. § 541. “The Code, however, allows the
debtor to prevent the distribution of certain property by claiming it as exempt.”
Taylor v. Freeland & Kronz, 503 U.S. 638, 642 (1992); see also 11 U.S.C. § 522.
“Exempt property is excluded from property of the estate available to satisfy debts.”
In re Benn, 491 F.3d 811, 813 (8th Cir. 2007).
Federal law provides a list of property that the debtor may exempt. See 11
U.S.C. § 522(d). “The general rule under the Bankruptcy Code is that a debtor is
permitted to choose between the scheme of federal exemptions prescribed in section
522(d) of the Code or the exemptions available under other federal law and the law
The Honorable Roberto A. Lange, United States District Judge for the District2
of South Dakota.
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of the state in which the debtor is domiciled.” Benn, 491 F.3d at 813 (quoting 14
Collier on Bankruptcy Intro-2 (15th ed. rev. 2006)). However, states may opt out of
the federal exemption scheme entirely. 11 U.S.C. § 522(b)(2). “If a State opts out,
then its debtors are limited to the exemptions provided by state law.” Owen v. Owen,
500 U.S. 305, 308 (1991).
South Dakota is one of many states that opt out of the Bankruptcy Code’s
exemptions. See S.D. Codified Laws § 43-45-13 (“[R]esidents of this state are not
entitled to the federal exemptions provided in § 522(d) of the Bankruptcy Code of
1978 (11 U.S.C. § 522(d)), exemptions which this state specifically does not
authorize.”). South Dakota law, therefore, determines the scope of Nessan’s
exemptions. See Hanson v. First Nat’l Bank in Brookings, 848 F.2d 866, 868 (8th
Cir. 1988).
The South Dakota exemption laws allow debtors to exempt several categories
of assets from judicial process. Certain personal effects, such as family pictures,
burial lots, and clothing, are “absolutely exempt from . . . process, levy, or sale”
regardless of their value. S.D. Codified Laws § 43-45-2. Similarly, a debtor’s
homestead is absolutely exempt. S.D. Codified Laws § 43-45-3. However, additional
personal property may be exempted only to a limited degree:
[T]he debtor, if the head of a family, may . . . select from all other of the
debtor’s personal property, not absolutely exempt, goods, chattels,
merchandise, money, or other personal property not to exceed in the
aggregate six thousand dollars in value; and, if not the head of a family,
property as aforesaid of the value of four thousand dollars.
S.D. Codified Laws § 43-45-4.
Nessan argues that the bankruptcy court erred when it ordered him to turn over
the property, believing that § 43-45-4 allows him to exempt entirely the truck, boat,
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and legal claim against AIG by claiming one-dollar exemptions for each. We reject
this contention. Unlike the two South Dakota statutes that provide absolute
exemptions, the additional personal property exemption limits the debtor’s ability to
claim exemptions to an aggregate value of $6,000 if the head of a family, or $4,000
if not the head of a family. Therefore, in claiming a one-dollar exemption in each of
the truck, boat, and legal claim against AIG under § 43-45-4, Nessan simply utilized
three dollars’ worth of the total value available for personal property exemptions. He
did not exempt the property in its entirety. See, e.g., In re Ludwig, No. 01-40473
(Bankr. D.S.D. Oct. 25, 2001) (holding that trustee could sell debtor’s vehicles to
recover for the estate any equity that exceeded § 43-45-4’s exemption limit); In re
Hughes, 244 B.R. 805, 814 (Bankr. D.S.D. 1999) (“[I]f a debtor could claim only
$3,000 of an $8,000 boat exempt under S.D.C.L. § 43–45–4, the trustee would seek
court approval to sell the boat under 11 U.S.C. § 363(f) to realize the $5,000 equity
for the bankruptcy estate.”); In re Williams, No. 95-30031 (Bankr. D.S.D. Jan. 26,
1996) (holding that a debtor could only exempt an item of property that exceeded the
exemption limit by paying the difference between the value of the property and the
exemption limit to the estate).
The check for three dollars satisfied any potential interest Nessan had in the
truck, boat, and legal claim against AIG, and therefore there was no error in ordering
Nessan to deliver that property to the Trustee. We affirm.
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