Sarah Joy Wishert

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I N THE UNITED S TATES B ANKRUPTCY COURT
FOR THE WESTERN DISTRICT OF T EXAS
S AN ANTONIO DIVISION
I N RE : 	§
§
S ARAH WISHERT , 	§ 	CASE NO. 25-52076-MMP
§
DEBTOR. 	§ 	CHAPTER 7
O PINION AND O RDER S USTAINING O BJECTION TO E XEMPTION
I. 	I NTRODUCTION
The Court will sustain the Trustee’s Objection to the Debtor’s Claims of Exempt Property
(ECF No. 20).1 At hearing, argument focused on whether the Debtor’s alleged oral lease with her
mother allowed her to exempt her remainder interest in real property (“Contested Land”) despite
settled Texas law saying homestead protection does not attach to future real property interests.
Laster v. First Huntsville Props. Co., 826 S.W.2d 125, 130 (Tex. 1991). The Debtor’s joint
physical possession of the Contested Land with the life estate holder, her mother, complicates the
analysis. The Debtor currently lives on the Contested Land with her mother in a double-wide
1 All ECF citations are to the docket in Case No. 25-52076, unless otherwise noted.
IT IS HEREBY ADJUDGED and DECREED that the
below described is SO ORDERED.
Dated: December 30, 2025
________________________________________
MICHAEL M. PARKER
UNITED STATES BANKRUPTCY JUDGE
______________________________________________________________
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manufactured home (“Manufactured Home”), which the Debtor alone claims as her homestead.
In other words, the Debtor claims an uncontested homestead right in the Manufactured Home, and
a remainder interest in the Contested Land, while the Debtor’s mother claims a life estate in the
Contested Land. The Debtor also alleges she has an indefinite term (in time and substance) oral
lease with her mother entitling the Debtor to present possession of the Contested Land.
The Court concludes the Debtor cannot claim an exemption in her remainder interest
because no valid lease exists to “bridge the gap” between her remainder interest and the type of
interest required to claim homestead protection. Alternatively, even if a lease did exist, no terms
of a lease suggest the Debtor holds a present possessory interest in the property that will overcome
the life tenant’s preexisting homestead interest and reach the Debtor’s remainder interest for
homestead exemption purposes. Therefore, the Court will sustain the Trustee’s Objection.
II. 	JURISDICTION AND VENUE
The Court has jurisdiction over this matter under 28 U.S.C. § 1334(b). Venue is proper
under 28 U.S.C. § 1408 and this matter is a core proceeding under 28 U.S.C. § 157(b)(2)(B). This
Opinion and Order serves as this Court’s findings of fact and conclusions of law under Federal
Rules of Bankruptcy Procedure 7052 and 9014.
III. 	B ACKGROUND
In 2009, the Debtor acquired a remainder interest in the Contested Land. Debtor’s Ex. 5
(“Deed”). In the Deed, the Debtor’s mother, Emily Wishert, transferred the Contested Land to the
Debtor but retained a life estate. Id.
Beginning in 2020, the Debtor made improvements to a Manufactured Home she owns
which sits on the Contested Land. These improvements included updating the kitchen and
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installing a bathroom in the dwelling that split the marriage line.2 The Debtor’s mother moved into
that Manufactured Home with the Debtor in November 2021, at which time the Debtor says the
lease agreement (with respect to the Contested Land) between the two began. No evidence was
presented of a lease agreement between the Debtor and her mother with respect to the mother’s
residence in the Manufactured Home.
The Debtor did not offer any written lease regarding the Contested Land. The Debtor
testified that she and her mother entered into an oral Contested Land lease agreement, but offered
no evidence regarding the primary terms of any such lease—there are no terms on: payment or
exchange of consideration, duration (the lease appears to be indefinite, as such it’s unclear when
or how the lease might end), what either party might do to default or cure a default, or exactly what
either party must do to perform under the alleged lease. The Debtor appears to have merely labelled
a general understanding she might have had with her mother a “lease.”
The Debtor filed for bankruptcy noting her Manufactured Home and her remainder interest
in the Contested Land on her schedules and claiming both as exempt property. ECF No. 1, Official
Form 106A/B, p. 1, Official Form 106C, pp. 1–2. The Debtor designated she did not have any
unexpired leases and listed none on her original schedules. Id., Official Form 106G, p. 1. But after
the Trustee filed his Objection, and concurrent with her Response (ECF No. 27), the Debtor filed
an Amended Schedule G (ECF No. 25) listing a “lease” with her mother. The Trustee does not
challenge the Debtor’s exemption in her Manufactured Home. The Trustee only challenges the
Debtor’s claim that her remainder interest in the Contested Land can be impressed with a
homestead exemption.
2 A common type of manufactured home colloquially known as a “double-wide” is really two structures affixed to
each other such that they operate as one dwelling. The points where the two meet is called the marriage line. See
Aucoin v. Southern Quality Homes, LLC, 984 So. 2d 685, 688–89 n.5 (La. 2008) (describing the manufacturing of
double-wides and formation of marriage lines).
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IV. 	ANALYSIS
a. 	H OMESTEAD E XEMPTIONS G ENERALLY
State law determines a debtor’s exemption rights when a debtor choses state property
exemptions, Norris v. Thomas (In re Norris), 413 F.3d 526, 527 (5th Cir. 2005), as the Debtor
did here, ECF No. 1, Official Form 106C, p. 1. The Debtor asserts a homestead exemption in her
remainder (future) interest in the Contested Land. ECF No. 1, Official Forms 106A/B, p. 1 and
106C, p. 1.
A landowner has the burden of proving homestead protection, Zorrilla v. Apyco Constr.
II, LLC, 469 S.W.3d 143, 159 (Tex. 2015), although courts liberally construe homestead
protections in favor of debtors. Inwood North Homeowners’ Ass’n, Inc. v. Harris, 736 S.W.2d
632, 635 (Tex. 1987); Norris, 413 F.3d at 528; Perry v. Dearing (In re Perry), 345 F.3d 303, 316
(5th Cir. 2003) (“Homesteads are favorites of the law, and are liberally construed by Texas
courts.”); In re Bradley, 960 F.2d 502, 507 (5th Cir. 1992). It is well-settled that “homestead
protection [] can arise only in the person or family who has a present possessory interest in the
subject property.” Laster, 826 S.W.2d at 130 (emphasis added). Thus, future interests in property,
including remainders, cannot be impressed with homestead exemption protections. Id. But the
Texas Supreme Court appeared to open the door to an exception, saying:
However, if a remainderman has a present right to possession in property sufficient
to impress it with his homestead interest, and the property is not subject to the
preexisting homestead interest of another, the property will be impressed with the
homestead character when he receives it in fee simple, and its protection will date
back to the time he began occupying it as his homestead.
Id. at n.2 (emphasis added). This dicta has caused at least two judges in this district to contend a
homestead exemption could extend to a future interest if the future interest holder also holds a
sufficient present possessory interest to “bridge the gap” between their present interest and their
future interest. In re See, Case No. 14-11006, 2015 Bankr. LEXIS 2323, at *18–19 (Bankr. W.D.
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Tex. July 14, 2015) (Judge Davis); In re Eskew, 233 B.R. 708, 712 (Bankr. W.D. Tex. 1998)
(Judge Kelly).
While the Fifth Circuit recognizes that a lease—a legal right to possess real property—is
sufficient to create a present possessory interest and trigger homestead exemption eligibility,
Resol. Tr. Corp. v. Olivarez, 29 F.3d 201, 205 (5th Cir. 1994), a mere tenancy-at-will creates at
best an insubstantial homestead exemption and a simple license has never been found to be
sufficient and cannot be used to assert a homestead exemption. In re Brunson, 498 B.R. 160, 163–
64 (Bankr. W.D. Tex. 2013) (Judge Davis). And this last point makes sense as a licensee, with no
right to exclude persons from the property and no legal interest in the property has nothing to
exempt. Id.; see also Brown v. Johnson, 12 S.W.2d 543, 545 (Tex. Comm’n App. 1929) (“A
casual reading of our Landlord and Tenant Law demonstrates that one of the essentials of a valid
leasing of premises . . . is that exclusive possession of the premises rightfully belonging to one
party is transferred to another.”).
b. 	T HE S TATUTE OF FRAUDS
The Debtor does not hold an obvious present possessory interest in the Contested Land,
but she says she has an oral lease (on the Contested Land) with her mother since her mother moved
into her Manufactured Home in 2021.
Texas’s Statute of Frauds applies to “a lease of real estate for a term longer than one year.”
TEX. B US . & C OMM. CODE § 26.01(b). The Statute itself states: “[a] promise or agreement
described in Subsection (b) of this section is not enforceable unless the promise or agreement, or
a memorandum of it, is (1) in writing; and (2) signed by the person to be charged with the promise
or agreement . . . .” Id. § 26.01(a). Because the Debtor alleges an oral lease with an indefinite term
that has been in place for four years, the alleged lease violates the Statute of Frauds.
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Exceptions to the Statute of Frauds3 exist “to prevent the perpetration of [] fraud.” Hooks
v. Bridgewater, 229 S.W. 1114, 1116 (Tex. 1921). One such exception occurs when a party partly
performed on an oral contract. Id. This partial performance exception requires (1) payment of
consideration; (2) possession; and (3) 	valuable and permanent 	improvement. Martinez v.
Reconstruct Co., Case No. 13-CA-0541, 2015 WL 12552032, at *8 (W.D. Tex. Mar. 13, 2015);
Tijerina v. Gomez, Case No. 04-13-00785, 2014 WL 7339362, at *3 (Tex. App.—San Antonio
Dec. 23, 2014, no pet.) (citing Hooks, 229 S.W. at 1116).
“Actions relied on to establish the partial performance exception to the statute of frauds
must be such as could have been done with no other design than to fulfill the particular agreement
sought to be enforced.” Bookout v. Bookout, 165 S.W.3d 904, 907–08 (Tex. App.—Texarkana
2005, no pet.). In addition to the three elements, there must be “strong evidence establishing the
existence of an agreement and its terms.” Ezennia v. Wells Fargo Bank, Case No. 10-5004,
2012 WL 1556170, at *4 (S.D. Tex. Apr. 27, 2012); see also Boyert v. Tauber, 834 S.W.2d 60,
63 (Tex. 1992) (saying the “key element” to the partial performance doctrine is corroboration of
the oral agreement).
Though most cases applying Statute of Frauds exceptions concern land-sale contracts,
some state appellate courts have applied the exception to other types of contracts. Exxon Corp. v.
Breezevale Ltd., 82 S.W.3d 429, 439–40 (Tex. App.—Dallas 2002, no pet.) (oil and gas deal);
Wiley v. Bertelsen, 770 S.W.2d 878, 882 (Tex. App.—Texarkana 1989, no writ) (employment
contract); Teague v. Roper, 526 S.W.2d 291, 293 (Tex. App.—Amarillo 1975, writ ref’d n.r.e.)
(land lease). If the partial performance exception applies to leases, the Debtor’s “partial
performance must be unequivocally referable to the agreement and corroborative of the fact that a
3 The Trustee did not argue that the Statute of Frauds applied, and the Debtor did not seek to apply any Statute of
Frauds exceptions, so the Court exercised its independent duty to examine the issue.
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contract was actually made.” Exxon Corp., 82 S.W.3d at 439–40. No such evidence was presented
here.
1. 	PAYMENT , POSSESSION, AND I MPROVEMENT
The Debtor’s actions showing her payment, possession, and improvement (related to the
Contested Land), fail because they do not suggest they were performed under or in furtherance of
an alleged lease’s terms.
The Debtor offered no evidence that money (or other consideration) changed hands
between her and her mother. Instead, she said she provides care for her mother that is compensated,
in part, by a hospital out of nearby Floresville. Although she did not schedule two leases, she said
that “the lease” is really two leases: the Debtor’s lease of the Contested Land and the mother’s
lease of the Debtor’s Manufactured Home. The Debtor says her Manufactured Home rests on the
Contested Land, and she resides there. She marked the Contested Land as her residence on her
schedules and petition. She says she is not sure but believes her mother cannot exclude her from
the property. For improvements, the Debtor can rely on her recent remodel of her Manufactured
Home which includes new flooring, walls, bathrooms, and a ramp to a porch connected to the
Manufactured Home.
The Debtor’s actions, whether in offering consideration for or possessing or improving
property, must relate to the alleged lease tied to the homestead exemption claim. Chevalier v.
Lane’s, Inc., 213 S.W.2d 530, 533–34 (Tex. 1948); see also Martinez v. DKTA Enters. Ltd., Case
No. 07-19-00116, 2020 WL 2786942, at *4 (Tex. App.—Amarillo May 29, 2020, no pet.)
(“Conduct which may be explained without reference to [the contract] does not constitute partial
performance.”).
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The Debtor did not say she provides care for her mother because of an oral lease. Rather,
it appears the Debtor cares for her mother (beyond what the hospital pays her for) out of the
goodness of her heart, which is admirable. The Debtor did not say she leases her Manufactured
Home to her mother in exchange for her mother leasing the Contested Land to the Debtor. She did
not say that consideration for a possessory interest in the Contested Land (one alleged lease) was
in exchange for the other (her mother’s) lease of the Manufactured Home, and the Debtor did not
say the Manufactured Home rests on the Contested Land only with reference to any lease. The
Debtor’s counsel’s leading questions to the Debtor reveals the uncomplicated state of the Debtor’s
relationship with the Contested Land:
Debtor’s Counsel: “you allow your mother to live at the house.”
Debtor: “yes.”
Debtor’s Counsel: “and she allows your house to stay on her land.”
Debtor: “yes.”
This interaction shows that each have granted the other a license, but does not link the licenses as
being offered in exchange for each other. The Debtor did not say that but-for her mother leasing
the Contested Land to the Debtor, she would not have the Manufactured Home on the Contested
Land for the two of them to live in. The Debtor also did not say that but-for the Debtor’s
Manufactured Home being on the Contested Land and the Debtor allowing her mother to live
there, her mother would not lease the Contested Land to the Debtor. Rather, the Debtor testified
that she allowed her mother to live in her newly remodeled Manufactured Home on the Contested
Land so that her 90-year-old mother could live in a safer home; not in reference to any alleged
lease(s) between the Debtor and her mother. Without evidence of any consideration given in
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exchange for the Debtor staying on the Contested Land, the Debtor fails the first element of the
Statute of Frauds exception.
The Debtor says she has lived on the Contested Land her whole life (outside of four years).
But continuing to reside somewhere is different from acquiring legal possession. See Teague,
526 S.W.2d at 293 (“[I]f the grantee is already in possession when the contract is made, a
continuance of possession will not ordinarily suffice.”). Particularly where, as here, that continued
possession is without reference to the terms of a new alleged lease. Indeed, the Debtor testified
that when her mother moved in with her, her Manufactured Home was already on the Contested
Land and her and her mother agreed that the Debtor and her Manufactured Home could stay on
the land, but the Debtor was “going to do that anyway.” The Debtor said regardless of the alleged
lease, she would stay on the land, confirming any possession was unrelated to a lease.
Furthermore, although joint possession is possible, no such arrangement exists here. Sharp
v. Stacy, 535 S.W.2d 345, 349 (Tex. 1976) (“[J]oint physical possession of the land by the
transferor and transferee does not preclude relief from the statute of frauds where the transferee's
possession clearly evidenced a surrender of ownership and control by the transferor.”). The
undisputed Wilson County property records show the Contested Land is owned by the Debtor’s
mother. Trustee’s Ex. 4. The Debtor and her mother share possession of the Manufactured Home
which rests on the Contested Land, which could mean they also share the Contested Land. But
they do not share the same rights in the Contested Land. Each’s interest does not carry the same
bundle of sticks. For example, the Debtor cannot exclude her mother from the Contested Land.
The Deed does not allow it, and no evidence suggests any alleged lease’s terms allow it either. But
the Debtor’s mother has every right to exclude the Debtor. Nothing suggests the mother has
surrendered her rights in the Contested Land to the Debtor. Rather, the Debtor has consistently
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said the Contested Land is her mother’s land. The Debtor’s legal interest is only in the land after
her mother dies. It is not a present possessory interest. Thus, the Debtor and her mother are not in
joint possession of the Contested Land; her mother possesses the Contested Land and allows the
Debtor and her Manufactured Home to be there. Without evidence that the Debtor legally
possesses the Contested Land, whether under an alleged lease(s) or otherwise, the Debtor fails the
second element.
The Debtor’s improvements are not to the Contested Land, but to her Manufactured Home.
Texas law recognizes that a manufactured home is by default separate and apart from the land it
sits on. See TEX. TAX C ODE § 11.432 (saying the land a manufactured home sits on can only be
claimed exempt if the land and the manufactured home are owned by the same person and that
person occupies the manufactured home and the land as their principal residence); TEX. OCC .
C ODE. § 1201.2055 (providing an option for an owner to elect whether the manufactured home is
real or personal property); TEX. P ROP . C ODE § 2.001 (saying unless a person elects for their
manufactured home to be treated as real property and files the required documentation, it is
personal property); Id. § 63.003 (saying when a lien on a manufactured home changes from a
personal property lien to a real property lien). The general rule is that improvements to
manufactured homes do not improve the value of the underlying realty, unless the nature of those
improvements are such that it makes the manufactured home permanently attached to and part of
the realty. See Burrus v. Reyes, 516 S.W.3d 170, 177–78, 192 (Tex. App.—El Paso 2017) (finding
pouring a concrete slab on which to build additions to a manufactured home and installing fixtures
constituted improvements to the real property).
There is a lack of evidence that the Debtor’s improvements to her Manufactured Home
improved the Contested Land or were permanent. Adding a deck, which may include a ramp, and
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a skirt around the home is not enough to overcome the default rule that the structure is separate
and apart from the land. Holding otherwise would allow the exception to swallow the rule as it is
only natural for manufactured homes to have some kind of structure or addition to connect the
elevated manufactured home to the ground it sits on.
The types of improvements described by the Debtor are for the Manufactured Home and
not the Contested Land that it sits on. Indeed, the Wilson County property records do not show the
Manufactured Home as part of the Contested Land’s valuation. Trustee’s Ex. 4.4 And the Debtor’s
schedules show that she valued the Manufactured Home apart from the Contested Land. Because
the Manufactured Home is personal property separate from the Contested Land, improvements to
it do not improve the value of the underlying Contested Land.
Similarly, these improvements are not permanent, as required by the partial performance
exception, because the Manufactured Home itself is not permanent. The Wilson County property
records do not recognize the Debtor’s Manufactured Home as a permanent structure, otherwise it
would be valued along with the land just like the older mobile home is. Trustee’s Ex. 4. Thus, the
County thinks it can be moved. Despite the Debtor’s arguments, the Manufactured Home can, by
its nature, be moved. It is not affixed to the land, otherwise, she could not claim a homestead
interest in the Manufactured Home, instead it would be a part of the underlying realty. Most of the
Debtor’s testimony centered on the interior remodel to her Manufactured Home, which is very
different than the type of improvements undertaken by the Reyes family in Burrus v. Reyes who,
among other things, added rooms to the mobile home. Burrus, 516 S.W.3d at 178.
4 The CAD report includes a $63,270 valuation for improvements on the Property, including an older manufactured
home. Trustee’s Ex. 4, p. 1. But this is for the Debtor’s mother’s old manufactured home, not the Debtor’s
Manufactured Home, which she values at $102,500. See id.; ECF No. 1, Official Form 106A/B, p. 2.
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Moreover, the improvement cited was made before any alleged lease began. The Debtor
cannot rely on her remodel of her Manufactured Home that took place a year before her mother
moved in (and the alleged lease began) to meet the partial performance exception. Improvements
made before an alleged oral agreement do not support its existence. Thus, the improvement cited
cannot meet the third element.
The partial performance exception requires the Debtor’s actions be unequivocally
performed with relation to the terms of the alleged oral lease. See, e.g., Exxon Corp., 82 S.W.3d
at 439–40. The only reason for the Debtor’s actions is not for the performance of the alleged lease,
rather there are many reasons for her actions. See Duradril, L.L.C. v. Dynomax Drilling Tools,
Inc., 516 S.W.3d 147, 162–63 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (finding sufficient
evidence to conclude “performance had no other design than to fulfill” the alleged oral agreement).
Her actions appear wholly without regard to an alleged lease of the Contested Land. There is no
evidence that, under an alleged lease, the Debtor cares for her mother, allows her mother to live in
her Manufactured Home, legally possesses the Contested Land, or improved her Manufactured
Home. Thus, these acts do not corroborate the Debtor’s assertion that a lease was made.
2. 	E VIDENCE OF A L EASE
Given the facts outlined above, the Court doubts a true lease exists between the Debtor and
her mother. Not only did she not list such an agreement on her original schedules, she affirmatively
stated no such agreement existed. The Debtor presented no terms of an alleged lease. She said it
began when her mother moved in, but did not offer when it would end. She did not say whether an
alleged lease required her to provide care to her mother or allow her mother to reside in her
Manufactured Home. She also did not say an alleged lease required her mother to allow the
Manufactured Home to sit on the Contested Land. Without terms, the Court cannot say an alleged
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lease exists. Given that the purpose of the partial performance exception is to avoid fraud, the
Court cannot employ this exception because there is no corroborating evidence that a lease exists.
See Boyert, 834 S.W.2d at 63 (finding a completed sale insufficient parol evidence because it did
not corroborate a broker’s argument he was entitled to a commission from the sale); Hooks,
229 S.W. at 1116 (“[T]o warrant equity's ‘breaking through the statute’ to enforce such a parol
contract, the case must be such that the nonenforcement of the contract—or the enforcement of the
statute—would, itself, plainly amount to a fraud.”).
The Court finds the Debtor allows her mother to live in her Manufactured Home. And the
mother allows the Debtor to have her Manufactured Home on the Contested Land. Such an
arrangement is more akin to a license than a lease. These are separate agreements, not related to
each other. These arrangements do not grant the Debtor any uninterruptible, present possessory
interest in the Contested Land. The Debtor credibly testified that since her childhood she has lived
on Contested Land. But just because she has lived there does not mean that she has a present
possessory interest in the Contested Land. That the Debtor’s mother allows the Debtor and her
Manufactured Home to be on the Contested Land does not mean the Debtor has a lease.
At most, the Debtor has a tenancy subject to the will and whim of her mother, which cannot
amount to a present possessory interest sufficient to allow the Debtor to claim a homestead interest.
See Brunson, 489 B.R. at 166–67 (“The consistent rationale of these cases is that [because] the
tenant’s homestead exemption ‘will depend upon the will and whim’ of the current owner, it is no
protection against alienation of a remainder interest the tenant may hold.” (quoting Perry, 345 F.3d
at 315)). The Debtor’s failure to claim an exemption in a lease of the Contested Land also suggests
no lease exists.
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Finding no valid lease exists, the Debtor does not have a present possessory interest in the
Contested Land which she can impress with a homestead exemption claim.
c. 	T HE MOTHER ’S I NTERVENING PREEXISTING H OMESTEAD I NTEREST
Even if a lease existed, the Debtor cannot exempt her remainder interest unless (1) she has
a present possessory interest that bridges the gap to her future interest; and (2) there is no
preexisting homestead interest that could sever that bridge. See, 2015 Bankr. LEXIS 2323, at *18–
19; Brunson, 498 B.R. at 163–64; In re Aguirre, Case No. 12-51304 (Bankr. W.D. Tex. July 17,
2012); Eskew, 233 B.R. at 712. Two cases say a lease could accomplish this: See and Eskew. But
the critical fact in both cases was the lack of an intervening property interest that could cause a
gap between the leasehold interest and the future interest. See, 2015 Bankr. LEXIS 2323, at *19
(not subject to a life estate); Eskew, 233 B.R. at 712 (oral lease was for the full term of the life
estate to the exclusion of the life estate holders).
This makes sense as Laster conditioned the possibility of a present possessory interest
bridging the gap to a future interest on the lack of an intervening preexisting homestead interest.
Laster, 826 S.W.2d at 130 n.2 (saying bridging is possible only if the property is “not subject to
the preexisting homestead interest of another”). Because the Debtor’s mother has a life estate, lives
on the Contested Land, and claims the Contested Land as her homestead, she holds a preexisting
homestead interest. And because the Debtor’s mother has ceded no part of her interest in the
Contested Land to the Debtor and because no persuasive evidence shows the Debtor holds
anything more than a tenancy-at-will, the Debtor’s mother holds an intervening preexisting
homestead interest precluding the Debtor’s homestead exemption claim. Without a present
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homestead interest in the Contested Land,5 the Debtor cannot bridge the gap to claim a homestead
exemption in her remainder interest in the Contested Land.
d. 	DEBTOR’S ALTERNATIVE ARGUMENT
The Debtor argues that if her remainder interest is not exempt property and is sold by the
Trustee as an asset of her bankruptcy estate, she will be forced to move her Manufactured Home,
which will compromise her homestead interest in the Manufactured Home because it is no longer
mobile after being on the Contested Land for 26 years. First, this argument misses the question
before the Court. The Debtor is trying to claim an exemption in a future interest in real property,
and the only way to do that is to show a present possessory interest in the real property. See Heggen
v. Pemelton, 836 S.W.2d 145, 149 (Tex. 1992) (“In [Laster] . . . we held that a homestead right
cannot arise absent a present possessory interest in the house.”) (Cornyn, J. concurring). Thus, the
question is whether the Debtor holds a present possessory interest in the Contested Land sufficient
to bridge the gap to her remainder interest such that the remainder interest could be claimed as
exempt property. That the home may be immobile does not affect that question.
Second, the argument is without supporting evidence. Texas law treats manufactured
homes as mobile by default. Evidence before the Court suggests no reason to deviate from that
default. Nevertheless, the Court will briefly layout and address the substance of the Debtor’s
argument below.
The Debtor says splitting the double-wide along the marriage line “would destroy the
flooring, tiles, kitchen island and other parts [remodeled bathrooms]” and that transporting it
“would likely lead to structural damages and make the home uninhabitable, thus leading to
5 The Court notes that the Debtor did not claim any lease was exempt on her schedules and has not amended her
Schedule C to claim a lease as exempt either. ECF No. 1, Official Form 106C, pp. 1–3. Thus, even if a lease did exist,
it has not been claimed as exempt and therefore cannot bridge the gap to exempt the Debtor’s remainder interest in
the Contested Land.
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complete loss.” ECF No. 27 ¶ 17. The Debtor’s opinion is not an expert opinion and was not
offered as such. While the Court believes that the Manufactured Home will incur damages if
moved, the Court also believes all such manufactured homes will incur damages and that fact can
never be enough by itself to reclassify a manufactured home as a permanent structure on real
property. The Debtor testified that skirting, a porch, and a handicap ramp are attached to the
Manufactured Home but not the movable chassis on which it sits. The Debtor did not articulate
what materials were used to construct these structures, or how they attach to the Manufactured
Home.
Though these additions may be affixed to the Manufactured Home, the Debtor did not say
they are, and the evidence before the Court does not suggest they are. There was no testimony on
whether the skirting could damage the Manufactured Home or be damaged by the Manufactured
Home if moved. Similarly, there was no testimony on whether the porch or ramp could be damaged
or cause damage if moved. Additions of this kind are not permanently attached to a manufactured
home or the real property it sits on. They can be removed and reattached to a different
manufactured home or different piece of real property with limited damage. This limited damage
cannot by itself be enough to create evidence of permanence. Based on the evidence before the
Court, the skirting, decking, and ramp are not permanently attached to the Manufactured Home or
the Contested Land and are, therefore, mobile.
No evidence shows the Manufactured Home would be damaged if forced to move. Rather,
the Debtor’s counsel asserted that it is common knowledge that a manufactured home is no longer
mobile after resting on land for more than twenty years. This is not evidence. The Court considers
this assertion argument, unsupported by evidence, and notes that other evidence in the record
suggests the opposite is true.
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As discussed earlier, supra pp. 10–11, Texas law recognizes that manufactured homes are
mobile and the legal records admitted into evidence suggest that this Manufactured Home is
mobile. The Court believes that the Manufactured Home and any after-market attachments are
mobile. The Court does not have enough evidence that moving the Manufactured Home would
cause any significant damage; and has no evidence of how much damage could be caused. That
the Manufactured Home could be damaged when moved could be true of any non-permanent
structure and does not change the nature of the Manufactured Home being separate from the
Contested Land it sits on. Finally, that the Manufactured Home has been so modified that it could
cause damage is not a consideration for whether the Debtor’s remainder interest in the Contested
Land, which is separate from the Manufactured Home, is exempt. Instead, the question is whether
the Debtor has a present possessory interest in the Contested Land. The Debtor does not.
e. 	PLANNING FOR A B ANKRUPTCY CASE FILING
While the Court does not know how this case presented to counsel or what kind of timing
issues might have attached to its filing, the facts of the case suggest appropriate pre-bankruptcy
planning could have potentially avoided many of the issues with which the Debtor now has to
contend. If, pre-bankruptcy, the Debtor knew she only had a remainder interest in the Contested
Land and knew that Texas homestead law required that she have a present possessory interest in
the Contested Land to bridge the gap to her remainder interest, the Debtor might have consulted
with her mother and pursued other options before filing for bankruptcy. For instance, the Debtor
could have asked her mother to also give the Debtor a life estate in the Contested Land or simply
asked the Debtor’s mother to convey her mother’s life estate in the Contested Land to the Debtor
in exchange for an indefinite lease back or other consideration (like regular care for the Debtor’s
mother). Armed with appropriate knowledge of the law, the Debtor could have taken the actions
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to obtain a present possessory interest or to prove her Manufactured Home was permanent and part
of the real property, rather than mobile, separate, personal property.
V. 	CONCLUSION
The Debtor’s lack of a written lease and failure to show the elements necessary to satisfy
the partial performance exception to the Statute of Frauds prevent the Debtor from establishing a
present possessory interest in which she might claim a homestead interest in the Contested Land.
Even if she had met the partial performance exception, she has not presented corroborating
evidence that a lease exists, nor established its essential terms. Without a lease, the Debtor lacks a
present possessory interest in the Contested Land. Without a present possessory interest to which
a homestead exemption could attach, she cannot bridge the gap and claim a homestead exemption
in her remainder interest. Even if the Debtor had presented sufficient evidence to establish the
alleged lease constituted a present possessory interest, the Debtor’s mother’s interest in the
Contested Land is an intervening, preexisting homestead interest that precludes the Debtor from
claiming a similar homestead exemption in her alleged lease interest. It is, therefore,
O RDERED that the Trustee’s Objection to Exemption (ECF No. 20) is S USTAINED.
# # #
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