Field v. Ely

UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
In re:
Allen W. Ely,
Debtor.
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Case No. 24-31477
Chapter 7
Judge Crist
Eileen K. Field, Trustee,
Plaintiff
v.
Allen W. Ely,
Defendant.
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Adv. No. 25-3007
INTERIM MEMORANDUM OPINION AND ORDER ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT (DOCS. 28 AND 29)
I. 	Introduction
This matter is before the Court on cross-motions for summary judgment, ultimately
regarding a claim for turnover under 11 U.S.C. § 542 asserted by the Chapter 7 Trustee, Eileen K.
Field (the “Trustee”) in the Amended Adversary Complaint of Trustee for Turnover of Property of
the Bankruptcy Estate or Value Thereof. (Doc. 17.) But the claim asserted has morphed over time,
This document has been electronically entered in the records of the United
States Bankruptcy Court for the Southern District of Ohio.
IT IS SO ORDERED.
Dated: October 16, 2026
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beginning as a request to sell the Debtor, Allen W. Ely’s (the “Debtor” and “Mr. Ely”), alleged
one-half interest in Indiana real property pursuant to 11 U.S.C. § 363(h), later transforming into
the current request for turnover of Mr. Ely’s contingent survivorship interest in the Indiana real
property, or the value thereof, which is stipulated to be owned with his Spouse, Marie E. Ely (“Ms.
Ely”), as tenants by the entirety. As a result, this adversary proceeding is currently in a strange
procedural posture in which the main legal issue being argued by the parties is effectively an
objection to exemption that has not yet been claimed; specifically, whether Mr. Ely is entitled to a
non-Ohio exemption in the subject Indiana real property. Therefore, within this Interim
Memorandum Opinion and Order, the Court will address as much as it can, based on the parties’
submissions, but will defer a final decision on the cross-motions for summary judgment until after
the Debtor claims the debated additional exemption in his interest in the Indiana real property and
the Trustee has an opportunity to assert her objection. In other words, notwithstanding that the
parties have briefed Indiana tenancy by entirety exemption issues in their cross-motions, because
Mr. Ely has, so far, only claimed an Ohio “wild card” exemption of $1,475.00 in the subject
Indiana real property (to which the Trustee did not object), it would be imprudent for this Court to
issue a final decision on the applicability of any Indiana tenancy by the entirety exemption before
it has actually been claimed by Mr. Ely. Such a ruling could constitute an improper advisory
opinion, and could later be proven incorrect.
This adversary proceeding presents a complex legal issue, which is whether Mr. Ely, who
is domiciled in Ohio, can exempt his individual interest in Indiana real property that is not his
residence, but which he owns with Ms. Ely, as tenants by the entirety. Congress has made it clear
that ever since title 11 of the United States Code (the “Bankruptcy Code”) was enacted in 1978,
entireties property falls within the exceedingly broad umbrella of property of the estate pursuant
to § 541(a)(1).1 But as of now, despite the fact that this adversary proceeding has been pending
since March 4, 2025, Mr. Ely has not yet claimed any entireties exemption on his Schedule C (Est.
Doc. 12 at 18-19), as required by § 522(l) and Federal Rule of Bankruptcy Procedure (“Bankruptcy
Rule”) 4003(a). In his reply brief, Mr. Ely asserts that his interest is exempt under § 522(b)(3)(B)
1 Hereinafter, unless otherwise stated, all sections referred to are sections of the Bankruptcy Code.
2 Herein, all filings on the docket of Mr. Ely’s chapter 7 case, No. 24-31477, will be referred to as Estate Documents
“(Est. Doc. [__]).”
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and Indiana common law, but he also asserts that he retains the right “to amend his schedules to
reflect the legal determinations reached in this proceeding . . . .” Reply at 3, ¶ 10. This approach,
however, puts the cart before the horse. Mr. Ely needs to first claim his exemption. It is unclear
why Mr. Ely has not yet claimed a tenancy by the entirety exemption, but what is clear is that he
must do so by amending his Schedule C pursuant to Bankruptcy Rule 1009(a)(1), lest his interest
in the Indiana real property is and will remain property of his bankruptcy estate that is available to
creditors, except to the extent of the Ohio “wild-card” exemption already claimed, to which the
Trustee did not object. We cannot skip this step, lest § 522(l), as well as Bankruptcy Rules 4003(a),
1007, and 1009, and Local Bankruptcy Rule (“LBR”) 1009-1(c), regarding claiming and amending
exemptions, would be rendered optional and would create uncertainty in the administration of
bankruptcy cases.
Accordingly, pursuant to Federal Rule of Civil Procedure (“Civil Rule”) 56(e)(4), made
applicable to this adversary proceeding by Bankruptcy Rule 7056, the Court hereby pauses the
final determination of the cross-motions for summary judgment and sets a deadline of fourteen
(14) days from the entry of this Interim Memorandum Opinion and Order for Mr. Ely to amend
and serve his amended Schedule C in his chapter 7 case to assert any entirety exemption in the
Indiana Property (as defined below), in accordance with Bankruptcy Rule 1009(a)(1) and LBR
1009-1(c). The Trustee and other parties in interest in Mr. Ely’s chapter 7 case will then have
thirty (30) days after the timely filing of any amended Schedule C to file and serve an objection
(the “Objection to Exemption”), in accordance with Bankruptcy Rule 4003(b)(1). And Mr. Ely
will then have seven (7) days after service of the Objection to Exemption to file and serve a reply.
Counsel should then file a status report in this adversary proceeding, once those filings are
completed or the deadline for those filings has expired, following which the Court will take the
remaining issues in this adversary proceeding under advisement and determine how to proceed.
Presuming that the entireties exemption is properly claimed consistent with the cross-motions for
summary judgment, the Court will then issue a final decision which may build upon and
incorporate this Interim Memorandum Opinion and Order; however, this Interim Memorandum
Opinion and Order remains fully subject to revision until this Court issues its final decision.
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II. 	Jurisdiction
This Court has jurisdiction over the Trustee’s Amended Complaint in this adversary
proceeding pursuant to 28 U.S.C. § 1334(b) and Amended General Order 05-02 (Amended
Standing Order of Reference) entered by the United States District Court for the Southern District
of Ohio, pursuant to 28 U.S.C. § 157(a), on September 16, 2016. This is a core proceeding pursuant
to 28 U.S.C. § 157(b)(2)(B) and (E). “A dispute over claimed exemptions is a core proceeding
pursuant to 28 U.S.C. § 157(b)(2)(B).” In re Sforzo, 332 B.R. 294, 295 (Bankr. N.D. Ohio 2005).
And “[a] dispute over whether property is exempt from the bankruptcy estate ‘stems from the
bankruptcy itself.’ ” In re Andrews, 605 B.R. 491, 492 (Bankr. S.D. Ohio 2019) (quoting In re
Edelson, 533 B.R. 651, 653 (Bankr. N.D. Ill. 2015) (quoting Stern v. Marshall, 564 U.S. 462,
499 . . . (2011)), aff’d sub nom. Loventhal v. Edelson, 579 B.R. 456 (N.D. Ill. 2016), aff’d, 844
F.3d 662 (7th Cir. 2016)); see also In re West, 507 B.R. 252, 254-55 (Bankr. N.D. Ill. 2014)
(holding the court had “constitutional authority to determine the exemption because, even though
the exemption may derive from state law, ‘[t]he right to exempt property from the bankruptcy
estate is established by an express provision of the Bankruptcy Code (section 522) and is central
to the public bankruptcy scheme.’ ” (citing In re Carlew, 469 B.R. 666, 673 (Bankr. S.D. Tex.
2012), aff'd sub nom. W. v. Carlew, No. H-12-0913, 2012 U.S. Dist. LEXIS 101770, 2012 WL
3002197 (S.D. Tex. July 23, 2012))). This means this Court has both statutory and constitutional
authority to enter a final judgment. In re Hernandez, No. 26-30232, 2026 Bankr. LEXIS 2466, at
*6 (Bankr. S.D. Ohio Sept. 29, 2026) (citing In re Andrews, 605 B.R. 491, 492 (Bankr. S.D. Ohio
2019 and In re Edelson, 533 B.R. 651, 653 (Bankr. N.D. Ill. 2015)). However, for the reasons
stated above, the Court is not yet entering a final judgment.
III. 	Background
A. 	Mr. Ely’s Chapter 7 Case
On August 5, 2024, Mr. Ely filed a Voluntary Petition (Doc. 1) (the “Petition”) for relief
under chapter 7 of Title 11 of the United States Code (the “Bankruptcy Code”) in Case No.
24-31477. Joint Stip. of Undisputed Facts and Outline of Legal Issues (Adv. Doc. 273) (the “Joint
3 Herein, all filings on the docket of this adversary proceeding, No. 25-3007, will be referred to as Adversary
Document “(Adv. Doc. [__]).”
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Stipulation”) at 2, ¶ 2. His spouse, Ms. Ely, did not join Mr. Ely in filing for bankruptcy. See
Petition at 1. On August 6, 2024. Ms. Field was appointed as the Chapter 7 Trustee. See Notice of
Chp. 7 Bankr. Case (Est. Doc. 7).
B. 	The Elys’ Ohio Residence and Indiana Property
The majority of the factual background not gleaned from the Court’s docket has been
stipulated to by the parties. See Joint Stip. (Adv. Doc. 27). Mr. Ely has, at all relevant times, been
an Ohio resident, not a resident of Indiana. Joint Stip. at 2, ¶ 8. He and Ms. Ely currently reside at
2341 Spring Mill Road, Kettering, Ohio 454404 (the “Residence”). Joint Stip. at 2, ¶ 7. The only
joint debt of the Debtor and Ms. Ely (together, the “Elys”) is a loan owed to Huntington Bank that
is fully secured by a mortgage on their Residence in Ohio. Id. And the parties have stipulated that
“no proofs of claim have been filed by any creditor holding a joint claim against both the Debtor
and his non-filing spouse that encumbers the [Indiana Property].” Joint Stip. at 4, ¶ 18.
In addition to their Ohio residence, the Elys jointly own real estate located at 5337 North
Diamond Lake Road, Wawaka, Noble County, Indiana5 (the “Indiana Property”), which is the
focus of this adversary proceeding. Joint Stip. at 2, ¶ 4. The Warranty Deed (the “Deed”) by which
the Indiana Property was conveyed to Mr. and Ms. Ely, as “Husband and Wife,” was recorded on
June 1, 2020 with the Recorder for Noble County, Indiana, is attached to the Joint Stipulation as
Exhibit A, and is stipulated to be a “true and accurate copy” and “admissible as evidence in this
matter without further authentication.” Joint Stip. at 1-2, ¶ 4. The parties have stipulated that the
Deed evidences that the Elys own the Indiana Property “as tenants by the entireties (TBE) under
Indiana law.” Joint Stip. at 2, ¶ 5. Further, “[t]he Elys were legally married at the time they
acquired the [Indiana Property] and have remained continuously married to the present date.” Joint
Stip. at 2, ¶ 6.
Mr. Ely’s interest in the Indiana Property was scheduled as an asset with a value of
$129,900, but was “appraised with a value of approximately $188,000.00” on or about February
24, 2025. Sched. A/B (Est. Doc. 1 at 11); Joint Stip. at 3, ¶ 10. As provided for on Official Form
4 The Residence is listed in Schedule A/B (Est. Doc. 1 at 11, Part 1, item 1.1) as a single-family home in Dayton,
Ohio with a current value of $216,200 as owned by Debtor “and another[.]”
5 The Indiana Property was listed in Schedule A/B (Est. Doc. 1 at 12, Part 1, item 1.2), as being “subject to Mortgage
in favor of Huntington Bank with Debt of $93,500 owed by [n]on-filing spouse only[.]”
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106C, Mr. Ely checked the box in Part 1, item 1 of Schedule C (Doc. 1 at 18) to claim “state and
federal nonbankruptcy exemptions” and, in relevant part, Debtor claimed an exemption of $1,475
in the Indiana Property, pursuant Ohio Revised Code § 2329.66(A)(18). Sched. C (Est. Doc. 1 at
18, Part 1, item 2). The Indiana Property is encumbered by a mortgage (the “Mortgage”) granted
by Ms. Ely and Mr. Ely, “[a wife and husband]” as the “Borrower,” to The Huntington National
Bank, which was filed with the Recorder for the Noble County, Indiana on July 24, 2020. Joint
Stip. at 3, ¶ 11. The parties stipulated that a “true and accurate copy” of the Mortgage, recorded
with the Noble County, Recorder,” is attached to the Joint Stipulation as Exhibit B and is
“admissible as evidence in this matter without further authentication.” Joint Stip. at 1, 3, ¶ 11. As
of August 5, 2024 (the “Petition Date”), the Mortgage on the Indiana Property is stipulated to have
had an “approximate payoff balance” of $93,000.00. Joint Stip. at 3, ¶ 12.
In addition to the Mortgage encumbering the Indiana Property, Swift Financial filed a
Notice of Foreign Judgment on July 2, 2024 in Noble County, Indiana, to domesticate a judgment
obtained against Mr. Ely “in Montgomery County, Ohio, in the amount of $121,881.37 (the ‘Swift
Judgment’).” Joint Stip. at 3, ¶ 13. The parties stipulated that a “true and accurate copy of the
Notice of Filing of Foreign Judgment and/or associated recorded documents is attached [to the
Joint Stipulation]” as Exhibit C. Id. Further, the debt owing to Swift Financial is based on “a
commercial loan to [Mr. Ely’s] business, Battery Technology Inc.[,]” which he personally
guaranteed, but his wife, Ms. Ely, did not. Joint Stip. at 3, ¶¶ 14-15. The parties stipulated that
“true and accurate copies of Proof of Claim No. 2 [filed by Swift Financial in Mr. Ely’s chapter 7
case] and its attachments are attached [to the Joint Stipulation]” as Exhibit D. Joint Stip. at 3, ¶ 15.
Further, “[t]he Swift Judgment was entered solely against [Mr. Ely] and his company, Battery
Technology, Inc.” Joint Stip. at 4, ¶ 16. And Ms. Ely was “not a named defendant in the lawsuit
giving rise to the Swift Judgment, is not a judgment debtor under the Swift Judgment, and is not
personally obligated on the debt owed to Swift Financial.” Joint Stip. at 4, ¶ 17.6
6 The Trustee has alleged in her Amended Complaint (Adv. Doc. 17) that “[p]ursuant to negotiations with counsel for
Swift Financial, Swift Financial is prepared to voluntarily release its foreign judgment.” Am. Compl. (Adv. Doc. 17)
at 3, ¶ 9.
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C. 	The Original Complaint and Amended Complaint for Only Turnover of
Debtor’s Survivorship Interest in the Indiana Property
On March 4, 2025, the Trustee filed her original Adversary Complaint (Adv. Doc. 1) (the
“Complaint”) initiating this adversary proceeding, in which she asserted one cause of action to sell
the Indiana Property, including Ms. Ely’s interest as a non-debtor, pursuant to § 363(h). Thus, the
Trustee named Ms. Ely as a party Defendant. Compl. at 1, 2, ¶ 3. The Elys filed an Answer (Adv.
Doc. 8) on May 5, 2025, denying the Trustee was entitled to the relief she requested.
After the entry of certain pretrial orders by this Court (Adv. Docs. 9 and 12), in part based
on a Joint Preliminary Pretrial Statement (Doc. 11) filed by the parties, a Stipulation of Parties
Allowing Amendment of Plaintiff’s Complaint (Adv. Doc. 18) was filed on August 22, 2025, which
granted the Trustee leave to amend the relief she sought because “given the position of the Debtor
as to the [Indiana Property] as TBE property, the Trustee’s position in the case has evolved.” The
Trustee amended her Complaint the same day, filing the Amended Adversary Complaint of Trustee
for Turnover of Property of the Bankruptcy Estate or Value Thereof (Doc. 17) (the “Amended
Complaint”) on August 22, 2025. In the Amended Complaint, the Trustee now asserts one cause
of action seeking “an order compelling the transfer of the Debtor’s contingent survivorship interest
in the [Indiana Property] to the Trustee or the value thereof, if agreed upon, for the benefit of the
bankruptcy estate.” Id. at 3-4, ¶ I.
Through the Amended Complaint, as opposed to seeking to sell the Indiana Property, the
Trustee is seeking turnover pursuant to § 542, of the value of Debtor’s “contingent right of
survivorship” in the Indiana Property. Am. Compl. at 1-4, ¶¶ 1, 14-16. Similarly, Ms. Ely is no
longer identified as a party Defendant within “The Parties” section of the Amended Complaint.
Am. Compl. at 2, ¶¶ 2-3. The Trustee also asserts, within the same cause of action, that “as a
hypothetical judgment lien creditor, the Trustee may execute a judgment against the Debtor’s right
of survivorship.” Am. Compl. at 3, ¶ 17. But neither 11 U.S.C. §§ 544(a)(1) nor 550 are cited in
the Amended Complaint. The Amended Complaint only cites to 11 U.S.C. §§ 541 and 542, seeking
turnover as the ultimate relief, rather than a sale. In the Elys’ original Answer, and later in Mr.
Ely’s Answer to the Amended Complaint (Doc. 19), Mr. Ely asserts that his “entire interest in the
[Indiana] Property, including any contingent right of survivorship, is exempt from the bankruptcy
estate pursuant to [] § 522(b)(3)(B).” Am. Answer (Adv. Doc. 19 at 3-4) (Third Defense); see also
Answer (Adv. Doc. 8) at 2-3, ¶ 9.
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D. 	Agreed Notice of Dismissal, Order Setting Deadlines, and Cross Motions for
Summary Judgment
On September 19, 2025, Ms. Ely moved to be dismissed from this adversary proceeding
because the Amended Complaint “[did] not allege or assert any claims or causes of action against
[her].” Mot. of Def. Marie E. Ely to Dismiss (Doc. 20) at 3, ¶ 7. The parties then agreed to dismiss
Ms. Ely as a Defendant pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure
(the “Civil Rules”) through an Agreed Notice of Dismissal (Adv. Doc. 24) filed on October 7,
2025.7 Following a pretrial conference held on October 7, 2025 (Adv. Doc. 15), the Court entered
the Order Setting Deadline for Filing Cross Motions for Summary Judgment and a Joint
Stipulation of Facts (Doc. 17) (Doc. 25), which fixed December 5, 2025 as the “deadline for filing
cross motions for summary judgment or partial summary judgment.” Order (Adv. Doc. 25) at 2.
December 5, 2025 was also fixed as the deadline for the parties to file a Joint Stipulation of Facts.
Order (Adv. Doc. 25) at 3. Responses and replies to cross motions for summary judgment were
required to “be filed in accordance with Local Bankruptcy Rule 9013-1.” Order (Adv. Doc. 25) at
2. Further, as noted in that Order (Adv. Doc. 25), counsel had represented that “there are several
discrete legal issues that may require determination by the Court prior to any trial to value the
debtor’s interest in the subject property.” Order (Adv. Doc. 25) at 2.
On December 5, 2025, Mr. Ely and the Trustee filed the Joint Stipulations (Adv. Doc. 27)
referenced above, along with the Cross-Motions for Summary Judgment (Adv. Docs. 28 and 29).
Mr. Ely and the Trustee filed their respective Responses to each other’s Motions for Summary
Judgment (Adv. Docs. 33 and 34) on January 12, 2026. And the Debtor filed a Reply to the
Trustee’s Response (Adv. Doc. 35) on January 20, 2026, while the Trustee did not file a reply to
Mr. Ely’s Response (Adv. Doc. 34).
E. 	The Parties’ Assertions in the Cross Motions for Summary Judgment
1. 	Mr. Ely’s Motion for Summary Judgment (Doc. 28)
7 Civil Rule 41(a)(1)(A)(i), however, only permits a plaintiff to “dismiss an action without a court order by filing . . . a
notice of dismissal” and only “before the opposing party serves . . . an answer . . . .” Fed. R. Civ. P. 41(a)(1)(A)(i)
(emphasis added). Because both of the Elys had already answered, and because Ms. Ely was not named in the
Amended Complaint, a notice of dismissal, which only permits the dismissal of an action, may not have been the
appropriate procedure. However, the amendment of the original Complaint to, in part, remove Ms. Ely, was sufficient
to accomplish the goal.
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Mr. Ely asserts that: (1) “as a matter of Indiana law, the Trustee’s hypothetical lien cannot
attach to the TBE [Indiana Property;]” and (2) “in the alternative, [his] entire interest in the
[Indiana] Property, “which he holds as a tenant by the entiret[ies] with his non-filing spouse, is
exempt from the bankruptcy estate pursuant to 11 U.S.C. § 522(b)(3)(B) and the common law of
the State of Indiana.” Mot. for Summ. J. (Doc. 28) (“Def.’s Mot. for Summ. J.”) at 2, 4, ¶ 9. Mr.
Ely recognizes that “[t]he Trustee’s legal theory that she can seize [Mr. Ely’s] ‘contingent right’
is not novel.” Def.’s Mot. for Summ. J. at 12, ¶ 39. In fact, Mr. Ely represents that this approach
“mirrors a minority view, articulated in other jurisdictions, that a lien might attach to a debtor’s
contingent future interest (like survivorship) even if it cannot attach to the present possessory
interest.” Id. (citing In re Chinosorn, 243 B.R. 688, 695-96 (Bankr. N.D. Ill. 2000)). But Mr. Ely
argues this theory is unavailable in this instance “[b]ecause Indiana law forbids an individual
creditor from ‘attaching’ any part of the TBE property, [such that] this immunity applies to the
entire estate, including the survivorship component.” Id. at 13, ¶ 42 (emphasis in original). Thus,
as he further argues, “the Debtor’s exemption under § 522(b)(3)(B) removes his entire interest
from the estate.” Id. at 14, ¶ 42 (emphasis in original). But, again, Mr. Ely has not yet actually
claimed this exemption.
Mr. Ely also argues that “[t]urnover under [] § 542(a)” is not available because “the
[Indiana] Property is immediately exempted in its entirety under § 522(b)(3)(B) as to the Trustee,
who represents only individual creditors.” Def.’s Mot. for Summ. J. at 14, ¶ 44 (emphasis in
original). (But, again, exemption does not happen automatically.) In other words, “[i]n the absence
of joint creditors, the [Indiana Property, being] TBE property, while technically part of the estate,
is fully exempt from administration by the Trustee.” Id. at 14, ¶ 45 (citing In re Hunter, 970 F.2d
299, 307 (7th Cir. 1992)). Therefore, Mr. Ely concludes that “[t]he Trustee’s legal theory—that
she can sever and seize the ‘contingent right of survivorship’—is unsupported by and contrary to
Indiana’s indivisible concept of TBE property.” Id. at 15, ¶ 47.
2. 	Trustee’s Motion for Summary Judgment (Doc. 29)
The Trustee notes in her Plaintiff’s Motion for Summary Judgment (Doc. 29) that Mr. Ely,
so far, has only claimed the Ohio “wild-card” exemption, “up to the applicable statutory limit of
$1,475.00[,]” in the Indiana Property. Pl.’s Mot. for Summ. J. at 3. However, the Trustee
acknowledges that “the Indiana Property is held by the Debtor and his nonfiling spouse as tenants
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by the entirety.” Pl.’s Mot. for Summ. J. (Doc. 29) at 3. Further, the Trustee asserts that “[t]enancy
by the entireties is recognized in Indiana but is not recognized in Ohio.”8 Id. The Trustee also
explains that “the Trustee filed an Amended Complaint . . . for the purpose of recognizing that the
Indiana Property was held as Tenants by the Entirety (‘TBE’) and modifying Trustee’s request for
relief to recover the present value of the Debtor’s survivorship interest in the TBE Indiana
Property.” Id. Further, the Trustee summarizes her position as follows:
(i) 	[T]hat the Debtor possesses a survivorship interest in the TBE
Indiana Property;
(ii) 	[T]hat the Debtor’s survivorship interest in the TBE Indiana
Property is not exempt under applicable law;
(iii) 	[T]hat the present value of the Debtor’s survivorship interest in
the TBE Indiana Property is calculable; and
(iv) 	[T]hat the Trustee is entitled to the present value of the Debtor’s
survivorship interest.
Pl.’s Mot. for Summ. J. at 3-4, § III.
Given that the parties have stipulated that the Indiana Property is held by the Elys as tenants
by the entireties, the Trustee posits that the “the questions of law to be determined are as follows:”
 	Is the Debtor’s survivorship interest in the TBE Indiana Property
property of the Bankruptcy Estate under 11 U.S.C. 541?
 	Does [§] 522(b)[(3)] contain an implied residency requirement
for determining which exemption scheme applies?
 	Is the Indiana exemption statute, 34-55-10-2 at Sec. 2(c)(5)
and/or Indiana common law the “applicable nonbankruptcy law”
contemplated under [§] 522(b)[(3)](B)?
8 Within the Sixth Circuit, tenancy by the entireties is currently recognized in all states but Ohio – Michigan, Kentucky,
and Tennessee. See K.R.S. § 381.050; M.C.L.S. § 554.45; Tenn. Code Ann. § 36-3-505 (2001). Ohio only recognized
tenancy by the entireties for conveyances during the period from 1972 to April 4, 1985, when it was abolished and
replaced with survivorship tenancies under Ohio Rev. Code (“R.C.”) § 5302.20. Cent. Nat’l Bank v. Fitzwilliam, 465
N.E.2d 408, 410 (Ohio 1984) (noting that “prior to the passage of R.C. 5302.17, this state did not recognize a
common-law estate by the entireties.” (citing Sergeant v. Steinberger (1826), 2 Ohio 305)); Reif v. Reif, 621 N.E.2d
1279, 1282 (Ohio Ct. App. 1993); R.C. § 5302.21(A) (eff. Apr. 4, 1985) (providing that the statutory change did not
affect deeds executed and recorded prior to April 4, 1985).
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 	Is Indiana’s exemption under IN Code 34-55-10-2 (2024),
specifically Sec. 2(c)(5), available to the Debtor as a person who
is not a resident of, nor domiciled in, Indiana?
 	What is the Methodology for determining the value of the
Debtor’s survivorship interest?
The Trustee then proceeds to answer those questions of law, asserting as follows:
1) 	“[T]he 	Debtor’s 	survivorship 	interest 	in 	the 	TBE 	Indiana
Property is property of the [b]ankruptcy [e]state under 11 U.S.C.
[§] 541[;]”
2) 	“522(b)[(3)] does contain an implied residency requirement for
determining which exemption scheme applies[;]”
3) 	“[T]he Indiana exemption statute 34-55-10-2 and/or Indiana
common 	law 	is 	not 	the 	“applicable 	nonbankruptcy 	law”
contemplated under 522(b)[(3)](B)[;]”
4) 	“Indiana’s 	exemption 	under 	IN 	Code 	34-55-10-2 	(2024),
specifically Sec. 2(c)(5), is not available to the Debtor as a
person who is not a resident of, nor domiciled in, Indiana.”
5) 	“The Trustee may recover 50% of the present value of the
debtor’s survivorship interest.”
3. 	Trustee’s Response to Mr. Ely’s Motion for Summary Judgment
(Doc. 33)
In response to Mr. Ely’s Motion for Summary Judgment, the Trustee filed her Plaintiff’s
Response to Defendant’s Motion for Summary Judgment (the “Trustee’s Response”), in which she
again submits that Mr. Ely has yet to claim any Federal or Indiana state law exemption in the
Indiana Property on the basis that it is owned as entirety property. Tr.’s Resp. at 3. But the Trustee
also clarifies the ultimate issue for this Court, which is not whether she can exercise hypothetical
lien powers under § 544, but is whether Mr. Ely’s interest in the Indiana Property is exempt. Resp.
at 4. And on this point, the Trustee argues that Indiana common law on tenancy by entirety has
been superseded by Indiana Code § 34-55-10-2. Resp. at 11.
4. 	Mr. Ely’s Memorandum in Opposition to Plaintiff’s Motion for
Summary Judgment (Doc. 34)
In his Memorandum in Opposition to Plaintiff’s Motion for Summary Judgment [Doc. 29]
(Doc. 34) (“Defendant’s Response”) Mr. Ely fundamentally argues that his interest in the Indiana
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Property is “immune from the process of individual creditors under Indiana common law.” Def.’s
Resp. at 1.
5. 	Mr. Ely’s Reply to Plaintiff’s Response to Defendant’s Motion for
Summary Judgment
In his Reply to Plaintiff’s Response to Defendant’s Motion for Summary Judgment [Doc.
33] (Doc. 35) (“Defendant’s Reply”), Mr. Ely argues that the Trustee’s assertion that he has failed
to properly claim an exemption is incorrect. Def.’s Reply at 3, ¶ 7. He further asserts that “[t]o
suggest that the exemption has not been claimed ignores the substantive nature of the dispute
currently before this Court.” Def.’s Reply at 3, ¶ 8. Moreover, Mr. Ely argues that he can amend
his Schedule C pursuant to Bankruptcy Rule 1009(a) “ ‘at any time before the case is closed.’ ”
Id. at 3, ¶ 9.
IV. 	Summary Judgment Standard
A court “shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a) (made applicable to this adversary proceeding by Federal Rules of Bankruptcy
Procedure 7056 and 9014(c)). “A ‘genuine’ dispute exists only where ‘evidence is such that a
reasonable [finder of fact] could return a [judgment] for the nonmoving party.’” Papa v. Bolera
(In re Bolera), 564 B.R. 569, 577 (Bankr. S.D. Ohio 2016) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986); Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 270 (6th
Cir. 2009)). A fact is material if it might affect the outcome of the suit under substantive law.
Niecko v. Emro Mktg. Co., 973 F.2d 1296, 1304 (6th Cir. 1992) (citing Anderson, 477 U.S. at 248).
“To prevail, the moving party, if bearing the burden of persuasion at trial, must establish
all elements of its claim.” Bolera, 564 B.R. at 577 (citing Celotex Corp. v. Catrett, 477 U.S. 317,
331 (1986)). “[T]he nonmoving party must come forward with ‘specific facts showing that there
is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (citation omitted). When reviewing a motion for summary judgment, the Court views
all evidence and draws all inferences in the light most favorable to the nonmoving party. Id.
In this adversary, the parties have prepared the Joint Stipulation, which lays out the material
facts, and both parties assert that the material facts are undisputed, such that there remain only
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legal disputes that this Court can decide on summary judgment.9 See Def.’s Mot. for Summ. J. at
7, ¶ 26; Pl.’s Mot. for Summ. J. at 2-3, §§ I-II. However, for the reasons set forth below, at this
time the Court concludes that it cannot proceed to issue a final decision on the parties’
cross-motions for summary judgment; rather, under Civil Rule 56(e)(4), made applicable to this
adversary proceeding by Bankruptcy Rule 7056, Debtor, Mr. Ely, needs to first properly claim any
exemption that he will rely upon to exempt his interest in the Indiana Property, for which the Court
is hereby providing a deadline, such that the Court will have all relevant facts before it when it
issues a final decision.
V. 	Analysis
A. 	Regarding Legal Questions Two, Three, and Four Posed by the Trustee, Mr.
Ely Has the Better Arguments.
Tentatively, if the basis of the as of yet unclaimed entirety exemption is as set forth in Mr.
Ely’s papers, Mr. Ely appears to have the better arguments. Yes, on the first legal question, it is
correct that Mr. Ely’s interest in the Indiana Property is property of the bankruptcy estate under
§ 541(a)(1). However, with respect to the second question posed, § 522(b)(3) itself, as cited by the
Trustee, does not contain any substantive language, stating only “Property listed in this paragraph
is—” such that it is meaningless without reference to subparagraphs (A), (B), or (C) of § 522(b)(3);
clearly Mr. Ely is relying upon (b)(3)(B), which, by itself, does not state any residency
requirement; and it appears the Trustee, by citing only to “(b)(3)” may be attempting to blur the
distinction between (b)(3)(A) and (b)(3)(B) and import the residency language of (b)(3)(A) into
(b)(3)(B). But there does not appear to be any support for this position10 and that is not how the
9 Mr. Ely asserts in his Response (Doc. 34 at 3, ¶ II.5) that the Trustee did not follow this Court’s Interim Policies and
Procedures or the Scheduling Order reciting the Interim Policies and Procedures, which requires a Statement of
Material Facts. Interim Policies and Procedures at 11-12 (effective Apr. 16, 2026) (https://www.ohsb.
uscourts.gov/content/judge-crist-interim-policies-and -procedures). Mr. Ely, however, did comply with this
requirement, as shown in Part 2 of his Memorandum in Support. See Def.’s Mot. for Summ. J. at 4-6, ¶¶ 4-23 (Part
2.A-B). Neither party disputes the stipulated material facts set forth in the Joint Stipulation and are both asserting the
Court now has only legal issues before it for determination.
10 The authority cited by the Trustee in her answer to the third question of law she poses does not pertain to the entirety
exemption in (b)(3)(B) of § 522. See 6 St. John’s Bankr. Research Libr. No. 22 (2014), https://www.stjohns.edu/
law/academics/centers/bankruptcy-research-library-2014 (analyzing “whether there is an ‘implied residency
requirement’ in section 522(b) that forbids a debtor who files for bankruptcy shortly after changing his or her state of
residence, from invoking the state exemption laws of his or her former state” but clearly discussing the 180-day
requirement contained in (b)(3)(A), not (b)(3)(B)); In re George, 440 B.R. 164 (Bankr. E.D. Wis. 2010) (discussing
(b)(3)(A) and (b)(3)(C) of § 522, not (b)(3)(B)); In re Willis, 495 B.R. 856 (Bankr. W.D. Wis. 2013) (also discussing
(b)(3)(A) of § 522, not (b)(3)(B)).
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statute is written. Next, on the third legal question, case law seems to conclusively establish that
the “law of the situs,” where the real property is located, is the “applicable nonbankruptcy law”
referenced in § 522(b)(3)(B), not the law of the debtor’s domicile. And, as to the fourth question,
while correct that Mr. Ely cannot claim the Indiana statutory exemptions because he is not
domiciled in Indiana,11 that does not foreclose the possibility that Mr. Ely can still assert a tenancy
by entirety exemption under the common law of Indiana; however, the Court is not deciding that
issue at this time, prior to Mr. Ely actually claiming an entirety exemption. But the Trustee does
have a very salient point, which is that, as of yet, “[t]he Debtors has solely claimed Ohio
exemptions pursuant to Ohio Rev. Code Ann. §[]2329.66; the Debtor has claimed no exemptions
under Indiana statutory or common law[.]” Pl.’s Mot. for Summ J. at 11 (emphasis removed).
B. 	Mr. Ely’s Survivorship Interest in the Indiana Property is Property of His
Bankruptcy Estate Under 11 U.S.C. § 541.
In her Amended Complaint, the Trustee asserted that “[t]he Debtor’s right of survivorship
is property of the bankruptcy estate, pursuant to 11 U.S.C. [§] 541.” Am. Compl. at 3, ¶ 15. In the
parties’ Joint Stipulation, the first part of the first agreed disputed issue of law is whether Mr. Ely’s
survivorship interest in the Indiana Property is property of his bankruptcy estate under § 541. Joint
Stip. at 4, ¶ a. And in the Trustee’s Motion for Summary Judgment, she again asserts that she
specifically amended the original Complaint to “modify[] Trustee’s request for relief to recover
the present value of the Debtor’s survivorship interest in the TBE Indiana Property.” Pl.’s Mot. for
Summ. J. at 3, § III. Thus, the first question is whether Mr. Ely has a survivorship interest in the
Indiana Property and if that interest is property of his bankruptcy estate under § 541.
Property of the estate is broadly defined to include “all legal and equitable interests of the
debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). See U.S. v. Whiting
Pools, Inc., 462 U.S. 198, 204-05 (1983). Property of the estate is expansively defined with “the
main purpose to ‘bring in anything of value that the debtor have into the [bankruptcy] estate.” In
re Forbes (Lyon v. Eiseman), 372 B.R. 321, 330 (B.A.P. 6th Cir. 2007) (quoting Booth v. Vaughn
(In re Booth), 260 B.R. 281, 284-85 (B.A.P. 6th Cir. 2001) (quoting H.R. Rep. No. 95-59 at 176
(1977), reprinted in 1978 U.S.C.C.A.N. 5787, 5963, 6136)). The Seventh Circuit Court of Appeals
11 The Trustee cites a 2024 version of Indiana Code § 34-55-10-2 in her Motion for Summary Judgment; however,
that statute appears to have last been amended in 2012.
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has previously opined on the effect that the shift from the Bankruptcy Act of 1898 to the
Bankruptcy Code of 1978 had on whether entirety property is property of a chapter 7 debtor’s
bankruptcy estate:
The Bankruptcy Code of 1978 (the Code) changed the legal
landscape. 	Most 	significantly 	for 	the 	present 	case, 	the 	Code
expanded the definition of property included in the debtor’s estate.
Under section 541(a)(1), the estate now includes “all legal or
equitable interests of the debtor in property as of the commencement
of the case.” 11 U.S.C. § 541(a)(1). This provision eliminated the
requirement that the property be transferable or subject to process in
order to enter the estate:
Under 	the 	Bankruptcy 	Act 	it 	was 	additionally
necessary under Section 70a(5) to determine whether
under local law the debtor’s interest in a tenancy by
the entirety, joint tenancy, or the like could by any
means have been transferred or levied upon or
se[ver]ed at the time the petition was filed. If the
debtor’s interest met any of these requirements, and
was not exempt property, it would pass to the trustee
as an asset of the estate. These requirements have
been omitted under the Code.
4 Collier on Bankruptcy ¶ 541.07[8][a] (1992). As will be discussed
below, this change had the effect of allowing entirety property to
enter the bankruptcy estate.
In re Hunter, 970 F.2d 299, 302-03 (7th Cir. 1992). Thus, there is no doubt that under § 541(a)(1),
at least Mr. Ely’s individual interest in the Indiana Property became property of the bankruptcy
estate upon filing his chapter 7 petition. Id. at 305 & nn. 7-8 (concluding that “[i]n enacting section
541, Congress intended to include within the bankruptcy estate a debtor’s interest in entirety
property” and citing the legislative history12 and other court decisions, including Liberty State
12 “The House Reports note that the Code was intended to include property held by the debtor as a tenant by the
entirety . . .”
* * *
The bill also changes the rules with respect to marital interests in property. . . .
With respect to other co-ownership interests, such as tenancies by the entirety,
joint tenancies, and tenancies in common, the bill does not invalidate the rights,
but provides a method by which the estate may realize on the value of the debtor’s
interest in the property while protecting the other rights. The trustee is permitted
to realize on the value of the property by being permitted to sell it without
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Bank & Trust v. Grosslight (In re Grosslight), 757 F.2d 773, 775 (6th Cir. 1985) (“It is now
established that [section 541(a)] brings entireties property into the bankruptcy estate.”)). The
Seventh Circuit also held that a 1980 amendment to Indiana Code § 34-2-28-1 “provide[d] an
individual spouse with the ability to claim an exemption from execution in entirety property[,]”
and by doing so, “Indiana recognized the validity of an individual interest in entirety property.” Id.
at 305. Therefore, “entirety property is brought into the bankruptcy estate by operation of section
541.” Id.
Here, the parties have stipulated that the Elys “own the [Indiana Property] as tenants by the
entireties (TBE) under Indiana law.” Joint Stip. at 2, ¶ 5. Whether a tenancy by the entirety “has
been created is defined by state law.” In re Giffune, 343 B.R. 883, 889 (Bankr. N.D. Ill. 2006)
(citing Butner v. United States, 440 U.S. 48, 54 (1979)). Thus, Indiana law governs the issue of
whether Mr. Ely owns the Indiana Property as a tenant by the entirety with Ms. Ely. Neither party
disputes this legal conclusion, and it appears that under the long-established common law of
Indiana, “a conveyance to a man and woman, who are then husband and wife, creates an estate by
entirety.” Chandler v. Cheney, 37 Ind. 391, 396 (1871).
Notably, Mr. Ely has not argued that there is any provision of § 541 of the Bankruptcy
Code, such as subsections (b) or (c)(2), that would exclude his survivorship interest in the Indiana
Property from the bankruptcy estate. In fact, he concedes that at least his survivorship interest in
the Indiana Property, which is what the Trustee has placed at issue, is property of the estate
pursuant to § 541(a), subject to any successful claim of exemption. See Def.’s Mot. for Summ. J.
at 10, Part 3.C, ¶ 33 (stating “[t]he Trustee’s case begins, correctly, with the premise that 11 U.S.C.
§ 541(a)(1) is broad enough to bring the Debtor’s TBE interest into the bankruptcy estate.” (citing
In re Jaffe, 932 F.3d 602, 607 (7th Cir. 2019) (citing In re Hunter, 970 F.2d 299, 303 (7th Cir.
1992))). In his Reply, Mr. Ely implicitly further concedes that this is an exemption issue under
§ 522 (not an exclusion issue under § 541), wherein he asserts that “[p]ursuant to 11 U.S.C.
§ 522(b)(3)(B), a debtor may exempt any interest in TBE property ‘to the extent that such interest
obtaining the consent or a waiver of rights by the spouse of the debtor or the co-
owner, as may be required for a complete sale under applicable State law.
H.R. Rep. No. 595, 95th Cong., 1st Sess., Appendix I at 177 (1977), reprinted in 1978 U.S.C.C.A.N.
5963, 6137 (footnotes omitted).
Hunter, 970 F.2d at 305 n.7.
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[as a tenant by the entirety] . . . is exempt from process under applicable nonbankruptcy law.’ ”
Reply at 4, ¶ 12. This conclusion is confirmed by another opinion of the Seventh Circuit Court of
Appeals wherein that Court concluded “ ‘[u]nder current Indiana law, a debtor in bankruptcy has
a sufficient individual interest in entirety property to bring that property into the bankruptcy
estate.’ ” Carrington v. Davis (In re Carrington), No. 24-1400, 2024 WL 4635240, at *2, 2024
U.S. App. LEXIS 27814 (7th Cir. Oct. 31, 2024) (quoting Matter of Paeplow, 972 F.2d 730, 736-37
(7th Cir. 1992)).
Neither party has mentioned the Seventh Circuit Court of Appeals’ decision in Paeplow,
which was issued the same year as Hunter and analyzes whether a debtor’s interest in Indiana real
property owned in the capacity of tenants by entirety was property of the bankruptcy estate. 972
F.2d at 735-37. Therein, the Court concluded that “the South Bend property both entered Paeplow’s
bankruptcy estate and received an exemption under Indiana law.” Id. at 736. This is so because
“[u]nder current Indiana law, a debtor in bankruptcy has a sufficient individual interest in entirety
property to bring that property into the bankruptcy estate.” Id. at 736-37. Moreover, “the legislative
history behind § 541 makes clear that Congress intended a debtor’s interest in entirety property, at
least initially, to enter the bankruptcy estate.” Id. at 737 (citing Hunter, 970 F.2d at 305-06;
Schlossberg, 777 F.2d at 925; Napotnik, 679 F.2d at 318) (noting further that “[C]ongress intended
entirety property to enter the bankruptcy estate and to pass out of the estate if subject to an
exemption, and if claimed by the debtor on his or her bankruptcy schedules.” (citing Hunter, 122
B.R. at 355)).
Based on the case law cited above, were Mr. Ely a domiciliary of Indiana who could take
the Indiana statutory exemption provided for entireties property provided for in Indiana Code § 34-
55-10-2(c)(5) (and had claimed it), that would seemingly be the end of the matter. But he is not,
so we move on.
C. 	Exemption of Mr. Ely’s Interest in the Indiana Property From the Bankruptcy
Estate Under 11 U.S.C. § 522(b)(3)(B) Cannot be Determined Unless and Until
He Claims the Exemption.
As this Court recently wrote in another case, “an individual debtor is afforded the
opportunity to ‘exempt from property of the estate’ certain property listed in § 522(b) through
claiming exemptions in accordance with Federal Rule of Bankruptcy Procedure (“Bankruptcy
Rule”) 4003(a).” In re Hernandez, No. 26-30232, 2026 Bankr. LEXIS 2466, at *7 (Bankr. S.D.
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Ohio Sept. 29, 2026). Mr. Ely, as the Debtor, claimed certain Ohio exemptions on his Schedule C
(Doc. 1 at 18-19), as he was entitled to do under § 522(b)(3)(A) because he had lived in Ohio for
the last two years, or at least the better part of the two years prior to the petition date. As an “opt-
out” state, Ohio applies its own state law exemptions for Debtors domiciled in Ohio rather than
the federal exemptions codified in § 522(b)(2) and (d). See Ohio Rev. Code (“R.C.”) 2329.662
(providing that under § 522(b)(1), Ohio “ ‘specifically does not authorize debtors who are
domiciled in this state to exempt the property specified in the ‘Bankruptcy Reform Act of
1978,’ . . . 11 U.S.C. 522(d).’ ” (quoted in Hernandez, 2026 Bankr. LEXIS 2466, at *7)). However,
as of now, Mr. Ely has only claimed an exemption of $1,475.00 in the Indiana Property pursuant
to R.C. § 2329.66(A)(18), which is sometimes referred to as the “wild card” exemption. Thus, the
exemption issue briefed by the parties in the cross Motions for Summary Judgment is not based
on an exemption yet claimed; however, pursuant to Bankruptcy Rule 1009(a)(1), “[a] debtor may
amend a . . . schedule . . . at any time before the case is closed.”
In addition to the Ohio exemptions, under § 522(b)(3)(B) of the Bankruptcy Code “a debtor
electing state exemptions may [also] exempt:”
any interest in property in which the debtor 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 nonbankruptcy
law.
13 Collier on Bankruptcy, Exemptions: Survey of States Recognizing Tenancy by the Entireties
Exemption, Scope (16th ed. 2026) (quoting 11 U.S.C. § 522(b)(3)(B) (emphasis added)); see also
4 Collier on Bankruptcy, Practice Guide ¶ 74.13, Exemption of Property Held by Tenants by the
Entirety. Section 522(b)(3)(B) applies to all individual debtors, even those who are domiciled and
file bankruptcy in states, like Ohio, that opt out of the federal exemptions pursuant to
§ 522(b)(3)(A). In re Wheatley, 631 B.R. 326, 328 n.1 (Bankr. N.D. Ill. 2021). “Ohio residents
may also claim the exemptions under federal law that are set forth in § 522(b)(3)(B) and (C).” In
re Villavicencio, 635 B.R. 486, 492 n.9 (Bankr. S.D. Ohio 2022) (citing In re Bauman, No. 11 B
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32418, 2014 WL 816407, at *12 n.12 (Bankr. N.D. Ill. Mar. 4, 2014) (quote omitted)).13 Collier
further explains that:
A debtor’s entitlement to a claim of exemption under section
522(b)(3)(B) is determined by the law of the state where the
entireties property is located and not by the exemption law of the
domiciliary state under section 522(b)(3)(A).
13 Collier on Bankruptcy, Exemptions: Survey of States Recognizing Tenancy by the Entireties
Exemption, Scope (citing Collier on Bankruptcy ¶ 522.10[3]). Further, in a state in which “the
filing of a bankruptcy petition by one spouse does not sever a tenancy by the entirety” it is “only
the debtor’s survivorship interest in the entireties property [that] becomes property of the estate
pursuant to section 541(a), and this interest may then be exempted under section 522(b)(3)(B).”
4 Collier on Bankruptcy, Practice Guide ¶ 74.13 (citations omitted). This conclusion is supported
by an Indiana Northern Bankruptcy Court opinion cited by Mr. Ely. Rodriguez v. Countrywide
Home Loans, Inc. (In re Rodriguez), 402 B.R. 299, 310 (Bankr. N.D. Ind. 2009) (concluding that
“application of Indiana law results in the interest of the debtor in the subject real property entering
the debtor’s bankruptcy estate, and application of I.C. 34-55-10-2(c)(5) allows for the exemption
of that interest from the estate.”). In other words, it is only Mr. Ely’s “individual interest as a tenant
by the entireties” in the Indiana Property that entered the bankruptcy estate, “not the ‘unitary’
interests” of Mr. Ely and Ms. Ely. Id. And finally, if an entireties exemption applies on the petition
date, it will continue to apply because the “exemption is determined as of [the] petition date.” In
re Hamacher, 535 B.R. 180, 182 (Bankr. E.D. Mich. 2015)).
To the extent an exemption is properly claimed under § 522(b)(3)(B), we would then look
to Indiana law as the “applicable nonbankruptcy law” to determine whether Mr. Ely’s right of
survivorship interest in the Indiana Property is actually exempt. Unlike a debtor’s exemptions
claimed under § 522(b)(3)(A), exemptions under § 522(b)(3)(B) are not based on a debtor’s
prepetition domicile. Although the Debtor properly claimed Ohio exemptions based on his
13 Section 522(b)(3)(C) also applies to debtors from opt-out states, allowing such debtors to exempt certain federally
recognized retirement accounts. Wheatley, 631 B.R. at 328 n. 1. In addition, the Court notes that 11 U.S.C.
§ 522(b)(3)(B) was formerly § 522(b)(2)(B). This change occurred as part of the Bankruptcy Abuse Prevention and
Consumer Protection Act of 2005, 109 P.L. 8, § 224, 119 Stat. 23, 62-63 (2005). See In re James, 498 B.R. 813, 821
n.3 (Bankr. E.D. Tenn. 2013).
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domicile as defined by § 522(b)(3)(A),14 § 522(b)(3)(B) is applied based on the situs of the
property at issue. As one court has explained: “Unlike the 730 and 180 day requirements found in
§ 522(b)(3)(A), there is no mechanical formula for determining the applicable nonbankruptcy law
under § 522(b)(3)(B).” In re Garrett, 435 B.R. 434, 455 (Bankr. S.D. Tex. 2010). Therefore, the
situs of the asset is the applicable test for which nonbankruptcy law applies. Id. (citing In re
Cochrane, 178 B.R. 1011, 1020 (Bankr. D. Minn. 1995)). The property is stipulated to be in
Indiana, and Indiana law therefore applies. When attempting to sort out whether a tenancy by the
entirety property is reachable by the Trustee, presuming that Mr. Ely ultimately properly claims an
exemption, the Court will need to examine Indiana law. But for now, Mr. Ely’s interest is not
exempt, because Mr. Ely has not claimed it as exempt under § 522(l). See, e.g., In re Smith, 640
F.2d 888, 891-92 (7th Cir. 1981) (“If a debtor does not claim property as exempt, as provided for
in section 522(l), it is not exempt”).
D. 	Preliminary Analysis of Remaining Issues Under Indiana Law
Notwithstanding that Mr. Ely has not claimed an exemption under § 522(b)(3)(B), the
Court will at least preview, subject to revision in its final decision after any exemption is claimed,
certain aspects of Indiana law.
To begin with, Indiana has a residential requirement for a debtor to be eligible to apply its
state statutory exemptions15, but Mr. Ely is stipulated to not have been a resident of Indiana, and
to not be domiciled in Indiana, “at all relevant times.” Joint Stip. at 2, ¶ 8. Thus, Indiana’s
exemption statutes make clear that Mr. Ely, a who is not a domiciliary of Indiana, cannot claim the
statutory exemption under Indiana law for TBE property, which states that:
14 Section 522(b)(3)(A) states that:
(3) Property listed in this paragraph is—
(A) subject to subsections (o) and (p), any property that is exempt under Federal law, other
than subsection (d) of this section, or State or local law that is applicable on the date of
the filing of the petition to the place in which the debtor’s domicile has been located for
the 730 days immediately preceding the date of the filing of the petition or if the debtor’s
domicile has not been located in a single State for such 730-day period, the place in which
the debtor’s domicile was located for 180 days immediately preceding the 730-day period
or for a longer portion of such 180-day period than in any other place[.]
11 U.S.C. § 522(b)(3)(A).
15 Ind. Code § 34-55-10-1.
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(c) The following property of a debtor domiciled in Indiana is exempt:
* 	* 	*
(5) Any interest that the debtor has in real estate held as a tenant by
the entireties. The exemption under this subdivision does not apply
to a debt for which the debtor and the debtor’s spouse are jointly
liable.
Ind. Code § 34-55-10-2(c)(5) (2012) (emphasis added). This section is consistent with the general
residency requirement for its state exemptions, also codified under Indiana law. Ind. Code § 34-
55-10-1 (1998) (“In accordance with Section 522(b) of the Bankruptcy Code of 1978 (11 U.S.C.S.
522(b)), in any bankruptcy proceeding, an individual debtor domiciled in Indiana is not entitled to
the federal exemptions as provided by Section 522(d) of the Bankruptcy Code of 1978 (11 U.S.C.S.
522(d)). See Mahl v. Aaron, 809 N.E.2d 953, 958 (Ind. Ct. App. 2004) (concluding that Indiana
Code § 34-55-10-2 “unambiguously limits exemptions to Indiana domiciliaries”).
As referenced above, Indiana common law has long recognized limitations on the transfer
of an execution upon tenancy by the entirety property. Chandler, 37 Ind. at 396. The Trustee argues
that the residential requirement in the Indiana TBE statutory exemption preempts any prior
common law exemption in Indiana. But the exemption from process under § 522(b)(3)(B) might
not simply be an application of state exemption law, it may create a separate and distinct exemption
from process that applies when the debt is only owed by one of the two spouses holding TBE
property. As the Seventh Circuit has explained:
The Bank’s suggested interpretation would not only require that we
ignore the wording and structure of the statute, but also that we
attribute to the Indiana legislature an acute unawareness of the other
operative 	sections 	of 	the 	Code. 	We 	cannot 	assume 	that 	the
legislators were not aware of the relationship between section
522(b)(2)(A)—permitting the use of state exemptions—and section
522(b)(2)(B)—which incorporates state common law immunity as
“applicable nonbankruptcy law.” As our colleagues on the Third
Circuit properly noted in Napotnik v. Equibank & Parkvale Savings
Association, 679 F.2d 316, 318–19 (3d Cir. 1982), “exempt from
process” should not be read to refer to state statutory exemptions,
because such exemptions are already accounted for in section
522(b)(2)(A). Rather, “exempt from process” as used in section
522(b)(2)(B) should be read to refer to the immunity from process
by individual creditors that state common law may grant to entirety
property. See also Ray v. Dawson, 14 B.R. 822 (E.D. Tenn. 1981).
In a state such as Indiana, whose common law grants entirety
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property immunity from creditors of one spouse alone, the effect of
section 522(b)(2)(B)—standing alone and without any reference to
state statutory exemptions—is partially to exempt entirety property:
the property is subject to sale and distribution to joint creditors, but
exempted from claims of individual creditors.
In re Hunter, 970 F.2d 299, 307 (7th Cir. 1992) (emphasis added and footnote omitted). A similar
analysis was made under Pennsylvania law. Napotnik v. Equibank & Parkvale Sav. Ass’n, 679 F.2d
316, 318-19 (3d Cir. 1982) (“The words ‘exempt from process’ should not be read to include only
the particular exemptions specifically allowed debtors by state law. Section 522(b)(2)(A) already
refers to such exemptions, and thus Section 522(b)(2)(B) would be a redundancy unless ‘exempt
from process’ meant ‘immune from process.’ ”). See also In re Rodriguez, 402 B.R. 299, 306
(Bankr. N.D. Ind. 2009) (“Under Indiana law, real property held as tenants by the entireties is not
subject to sale or execution or other legal process sought by any creditor to whom only one of the
two marital parties is liable[.]”); Davis v. Carrington, 2:23cv129-PPS, 2024 WL 639535, at *4
(N.D. Ind. 2024), aff’d sub nom. Carrington v. Davis (In re Carrington), No. 24-1400, 2024 WL
4635240, 2024 U.S. App. LEXIS 27814 (7th Cir. Oct. 31, 2024) (“It is well established that the
Entireties Exemption in Indiana prevents a judgment against one spouse from affixing as a lien to
property held as tenants by entirety.”) (citing In re Paeplow, 972 F.2d 730, 733 (7th Cir. 1992)
(creditors “cannot execute on entirety property without first obtaining a judgment against both
spouses”)); Enloe v. Franklin Bank & Trust Co., 445 N.E.2d 1005, 1009 (Ind. Ct. App. 1983)
(finding in Indiana “[a]n estate by the entireties is immune to seizure for the satisfaction of the
individual debt of either spouse.”)). See also Underwood v. Bunger, 70 N.E.3d 338, 340 (Ind. 2017)
(“Indiana has a longstanding legal presumption, recognized by statute and at common law, that
spouses owning real property hold their interests as tenants by the entirety.”).
But, as previewed at the outset of this Interim Memorandum Opinion and Order, the Court
cannot issue a ruling on any exemption under § 522(b)(3)(B), before Debtor, Mr. Ely, actually
claims any such exemption. To date, Mr. Ely has only claimed the Ohio “wild-card” exemption in
his interest in the Indiana Property pursuant to R.C. § 2329.66(A)(18) for the then-maximum
allowed amount of $1,475.00.16 (Est. Doc. 1 at 18.) Curiously, in the Debtor’s Answer (Doc. 8) to
the original Complaint (Doc. 1), filed on May 5, 2025, Mr. Ely asserted that he intended “to amend
16 The wildcard exemption amount increased to $1,675 effective April 1, 2025, but that increase only applies to cases
filed on or after that date.
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his Schedule C filed in the main bankruptcy case to claim the [Indiana] Property as exempt
pursuant to 11 U.S.C. § 522(b)(3)(B) and Indiana’s common law protection for property owned as
a tenant by the entirety . . . .” Answer (Doc. 8) at 2-3, ¶ 9. Yet the Debtor did not make this same
assertion in his Answer (Doc. 19) to the Amended Complaint (Doc. 17) and, for reasons unclear,
the Debtor has still not amended his Schedule C, a step which is necessary, lest the remainder of
his interest in the Indiana Property not exempted under the Ohio “wild-card” exemption asserted
(and not objected to) will remain property of the estate. Moyer v. Rosich (In re Rosich), 570 B.R.
278, 283 (Bankr. W.D. Mich. 2017) (”Here, there is no dispute that the Debtor listed her interest
in the Property on Schedule A, and claimed it as exempt pursuant to § 522(b)(3)(B) on Schedule
C.”).
Even though the Debtor likely can amend his schedules at any time before his case is closed
pursuant to Bankruptcy Rule 1009(a)(1), unless and until he does so he has not properly asserted
a tenancy by the entirety exemption in his interest in the Indiana Property and the time for
objections to that exemption have not started to run. See Foster v. Moore (In re Moore), 175 B.R.
13, 15 (Bankr. S.D. Ohio 1994) (Waldron, J.) (stating that § 522(l) “sets forth the procedure for
claiming exemptions” and that absent claiming an exemption on Schedule C “there is no basis for
a trustee to file an objection”); see also In re Guzior, 347 B.R. 237, 241 (Bankr. E.D. Mich. 2006)
(“A debtor exempts property from property of the estate by ‘fil[ing] a list of property that the debtor
claims as exempt under [§ 522(b)].’ ” (citing 11 U.S.C. § 522(l))). As Judge Waldron observed in
Moore, “[t]he Bankruptcy Code, Bankruptcy Rules, and Official Forms require that a debtor file a
list of property that he or she claims as exempt . . . .” 175 B.R. at 16 (citing § 522(l); Fed. R. Bankr.
P. 4003([a])). Therefore, before this Court can rule on the Trustee’s request for turnover, which
necessarily requires this Court to rule on a hypothetical, as of yet unclaimed, exemption in the
Indiana Property, Mr. Ely must amend his Schedule C pursuant to 11 U.S.C. § 522(l) so that the
Court has all the facts before it and is not rendering an advisory opinion based on a hypothetical
situation. See In re Cahill, 642 B.R. 813, 824 (Bankr. N.D. Ill. 2022) (stating “[a] court’s
conclusion that a party seeks an advisory opinion does not ‘change because the parties have moved
and briefed the issue before the Court.’ ” (quoting In re Cubic Energy, Inc., 587 B.R. 849, 857
(Bankr. D. Del. 2018) (footnote omitted))).
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VI. 	Conclusion
Unless and until Mr. Ely claims a further exemption of his interest in the Indiana Property,
in accordance with the applicable provisions of the Bankruptcy Code, Bankruptcy Rules, and
LBRs, Mr. Ely’s individual contingent survivorship interest in the Indiana Property remains
property of the estate, except to the extent previously exempted under his Ohio “wild-card”
exemption of $1,475.00 asserted under R.C. § 2329.66(A)(18). Whether the Trustee may be
entitled to turnover of the non-exempt value of his interest in the Indiana Property is an issue for
another day, which is presently not properly before the Court, but will be decided after Mr. Ely
claims any further exemption and the Trustee, as well as any other parties in interest, have an
opportunity to object under Bankruptcy Rule 4003(b)(1).
For all these reasons, the ultimate determination of the Cross-Motions for Summary
Judgment (Docs. 28 and 29) will be deferred, contingent on the Defendant amending his Schedule
C to supplement the record pursuant to Federal Rule of Civil Procedure 56(e) within fourteen (14)
days after the entry of this Order. The Trustee may object to any Amended Schedule C within
thirty (30) days of the filing. Fed. R. Bankr. P. 4003(c).17 If, however, the Debtor does not amend
his Schedule C within the time provided herein, the Court will proceed to rule on the cross-motions
based upon the present record.
Accordingly, based upon the foregoing, IT IS HEREBY ORDERED as follows:
1. 	Debtor, Mr. Ely, shall file and serve, in accordance with Bankruptcy Rule
1009(a)(1) and LBR 1009-1(c) in his chapter 7 case, No. 24-31477, an amendment
to his Schedule C (Est. Doc. 1 at 18-19) in his chapter 7 case to assert any further
exemption in the Indiana Property, within fourteen (14) days after the entry of
this Interim Opinion and Order;
2. 	In accordance with Bankruptcy Rule 4003(b)(1), the Trustee and any party in
interest shall file any objection to the Debtor’s amendment of Schedule C (the
“Objection to Exemption”) within thirty (30) days after the filing of the amended
Schedule C; and
17 Based upon the current posture of this litigation, the Court need not address the proper methodology to determine
the value of Mr. Ely’s contingent survivorship interest, at least as of now.
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3. 	Debtor, Mr. Ely, will have seven (7) days after the filing of any Objection to
Exemption to file a reply thereto.
IT IS HEREBY FURTHER ORDERED that upon the submission of all of the foregoing,
or expiration of the time to file the foregoing in paragraphs 1-3 immediately above, the Court will
proceed to rule upon the remainder of the cross-motions for summary judgment based on the record
then before the Court.
IT IS SO ORDERED.
Copies to:
Counsel for the Plaintiff
Counsel for the Defendant
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