Catherine C. Victor

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
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06/10/06
Catherine C. Victor
05-14370
Order Granting [25-1] Trustee's Objection To Third Amended Exemption by Clarke
Coll .
Received on: 2006-05-03 14:13:28.000
2006-05-03 00:00:00.000
2006-05-03 00:00:00.000
Patti Hennessy
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1The Chapter 7 Trustee also filed an objection to the Debtor’s first amendment to
Schedule A, B, and C. (See Docket # 18). 	The Debtor filed a response which asserted that the
objection was untimely, since the Debtor had received a discharge prior to the date the objection
was filed. (See Docket # 16 - Order Discharging Debtor and Docket # 19 - Response to Trustee’s
Objection to Claim of Exemption of Property). Pursuant to Rule 4003(b), Fed.R.Bankr.P., a
party in interest may file an objection to a debtor’s claimed exemptions “within 30 days after the
meeting of creditors held under § 341(a) is concluded or within 30 days after any amendment to
the list or supplemental schedules is filed, whichever is later.” Rule 4003(b), Fed.R.Bankr.P.
The Debtor filed her amended Schedule C on September 20, 2005, and the Chapter 7 Trustee
filed his objection on October 21, 2005. Although the Chapter 7 Trustee’s objection was filed
one day beyond the thirty-day period proscribed by Rule 4003(b), Fed.R.Bankr.P., Debtor
subsequently filed a third amendment to her Schedules A, B, and C on March 16, 2006, to which
the Chapter 7 Trustee filed a timely objection on April 4, 2006. 	Because the Court’s decision is
based on the Debtor’s latest amended schedules, the Court will not overrule the Chapter 7
Trustee’s objection on grounds that the objection was not timely filed.
1
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re: 	CATHERINE C. VICTOR, 	No. 7-05-14370 MR
Debtor.
ORDER ON TRUSTEE’S OBJECTION TO THIRD
AMENDMENT TO CHANGE CHAPTER 7 CLAIM OF EXEMPTIONS
THIS MATTER came before the Court on the Trustee’s Objection to Third Amendment
to Change Chapter 7 Claim of Exemptions (“Trustee’s Objection to Exemptions”).1 The
Chapter 7 Trustee asserts that there is $4,900.00 in non-exempt property in the Debtor’s
bankruptcy estate, and requests the Court to disallow Debtor’s claim of exemption in a 1993
Guthrie Trailer in its entirety, or to the extent the claimed exemption exceeds the exemption
amount available. The Debtor filed a response to the Trustee’s Objection to Exemptions,
asserting that the property at issue is the sole and separate property of her non-filing spouse, and
that under the federal exemptions available to her under the Bankruptcy Code, all of her interests
in property listed in Schedule C are properly claimed as exempt. The Court held a final hearing
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2On August 17, 2005, Debtor filed Amended Schedules A, B, I, J, and Statement of
Financial Affairs. On September 2, 2005, Debtor filed Amended Schedules A-D, F, G-J,
Amended Statement of Financial Affairs, and Amended Statement of Intention. On September
20, 2005, Debtor filed an Amended Schedule C. On March 16, 2006, Debtor filed a Third
Amended Schedules A, B, and C. A summary of the changes to Debtor’s schedules with regard
to her claimed exemptions and valuations is attached as Exhibit A.
2
on the Trustee’s Objection to Exemptions on April 12, 2006, and took the matter under
advisement. 	Based on the Debtor’s statements and schedules, as amended, and the exhibits
submitted by the Debtor in response to the Trustee’s Objection to Exemptions, the Court finds as
a matter of law that the Debtor’s bankruptcy estate contains non-exempt property that is subject
to liquidation by the Chapter 7 Trustee. 	Accordingly, the Court sustains the Chapter 7 Trustee’s
Objection to Exemptions.
FACTS
The Debtor filed a voluntary petition under Chapter 7 of the Bankruptcy Code on May 27,
2005. Debtor was married as of the date of the filing of the petition, but her spouse did not join
in the petition. Since the filing of her voluntary petition, Debtor has amended her statements and
schedules four times.2 The Debtor filed amendments to her Schedule B to add a 1993 Guthrie
Trailer, a 2003 Gooseneck Trailer, and a 2002 Gooseneck Trailer which she asserts are the sole
and separate property of her non-filing spouse. 	The amendments to her schedules also reflect
the following changes in value for these items: 1993 Guthrie initially valued at $12,000.00 is
valued on Debtor’s Third Amended Schedules at $8,000.00; 2003 Gooseneck Trailer initially
valued at $4,000.00 is valued on Debtor’s Third Amended Schedules at $2,750.00; and 2002
Gooseneck Trailer initially valued at $5,000.00 is valued on Debtor’s Third Amended Schedules
at $3,300.00. 	Debtor’s Third Amended Schedules also change her election of exemptions to the
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3
federal exemptions provided under 11 U.S.C. § 522(d), instead of the state exemptions she
initially elected when filing her petition. 	Debtor claims an exemption in the 1993 Guthrie
Trailer in the amount of $8,000.00 under 11 U.S.C. § 522(d)(1), and claims exemptions in the
2003 Gooseneck Trailer and the 2002 Gooseneck Trailer in the full amount of their reported
values under 11 U.S.C. § 522(d)(5). Debtor’s Third Amended Schedule C no longer claims an
exemption in certain real property located at 546 Moore’s Manor, but claims an exemption under
11 U.S.C. § 522(d)(5) in the amount of $2,500.00 in a 1971 Mobile Home located at 546
Moore’s Manor.
DISCUSSION
Exemptions under the Bankruptcy Code are governed by 11 U.S.C. § 522. 	Because New
Mexico has not opted out of the bankruptcy exemption scheme, individual debtors who file a
voluntary petition for bankruptcy within the District of New Mexico may elect either the
exemptions available to them under applicable non-bankruptcy state or federal law, or the
exemptions available under 11 U.S.C. § 522(d). See 11 U.S.C. § 522(b)(1) and (2); 4 Collier on
Bankruptcy ¶ 522.01, n.2 (Alan N. Resnick and Henry J. Sommer, eds. 15th ed. rev. 2005) (listing
those states that have opted out of the exemptions contained in § 522(d)) and ¶ 522.02[1]
discussing debtor’s choices of exemptions in states which have not “opted out”). 	In this case,
Debtor initially claimed exemptions using the New Mexico exemption statutes, but later
amended her Schedule C to claim exemptions under 11 U.S.C. § 522(d), which provides, in
relevant part:
(d) The following property may be exempted under subsection (b)(1) of this
section:
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3$975 under 11 U.S.C. § 522(d)(5), plus $9,250 of the unused portion of the exemption
provided under 11 U.S.C. § 522(d)(1) = $10,225.00.
4Computed as follows:
2002 Gooseneck Trailer: 	$2,750.00
2003 Gooseneck Trailer: 	$3,300.00
Cash on hand: 	$ 	25.00
4
(1) The debtor’s aggregate interest, not to exceed $18,450 in value, in real
property or personal property that the debtor or a dependent of the debtor
uses as a residence, in a cooperative that owns property that the debtor or a
dependent of the debtor uses as a residence, or in a burial plot for the
debtor or a dependent of the debtor.
. . . .
(5) The debtor’s aggregate interest, not to exceed in value $975 plus up to
$9,250 of any unused amount of the exemption provided under paragraph
(1) of this subsection.
11 U.S.C. § 522(d)(1) and (5).
Debtor’s Third Amended Schedule C claims an exemption in the 1993 Guthrie Trailer under 11
U.S.C. § 521(d)(1). 	Debtor’s Third Amended Schedule C lists the 1993 Guthrie Trailer under
the heading, “Machinery, Fixtures, Equipment and Supplies Used in Business.” 	As such, the
1993 Guthrie Trailer does not qualify as “real or personal property that the debtor or a dependent
of the debtor uses as a residence” and is, therefore, not properly claimed exempt under 11 U.S.C.
§ 522(d)(1). 	The 1971 Mobile Home is claimed exempt under the general exemption section,
11 U.S.C. § 522(d)(5). 	Even if the 1971 Mobile Home is claimed under 11 U.S.C. § 522(d)(1)
as personal property that the debtor or a dependent of the debtor uses as a residence, the total
amount of the exemptions claimed under § 522(d)(5), which must include the 1993 Guthrie
Trailer, exceed the maximum exemption amount of $10,225.003 available to the Debtor under 11
U.S.C. § 522(d)(1) and (5).4
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Checking Acct: 	$ 	100.00
Children’s books, cds etc.: 	$ 	150.00
Women’s Clothing: 	$ 	500.00
2 Ruger 45 Pistols: 	$ 	300.00
1993 Guthrie Trailer: 	$8,000.00
Total: 	$15,125.00
$15,125.00 - $10,225.00 = $4,900.00 excess of claimed exemption amount over
available exemption amount.
5That section provides:
(a) The commencement of a case under section 301, 302, or 303 of this title
creates an estate. Such estate is comprised of all of the following property, wherever located and
by whomever held:
. . . .
(2) All interests of the debtor and the debtor’s spouse in community
property as of the commencement of the case that is --
(A) under the sole, equal, or joint management and control of the debtor;
or
(B) liable for an allowable claim against the debtor, or for both an
allowable claim against the debtor and an allowable claim against
the debtor’s spouse, to the extent that such interest is so liable.
11 U.S.C. § 541(a)(2).
5
In response, Debtor asserts that the 1993 Guthrie Trailer, the 2003 Gooseneck Trailer,
and the 2002 Gooseneck Trailer are the sole and separate property of her non-filing spouse and as
such, never became property of the estate under 11 U.S.C. § 541. 	Alternatively, she asserts that
if the trailers are community property, her one-half interest is properly claimed as exempt.
Upon the filing of a bankruptcy, all community property, including a non-filing spouse’s interest
in community property, becomes property of the bankruptcy estate. See 11 U.S.C. § 541(a)(2).5
See also, Swink v. Sunwest Bank (In re Fingado), 113 B.R. 37, 39 (Bankr.D.N.M. 1990), aff’d
995 F.2d 175 (10th Cir. 1993) (“[A] petition by one spouse passes all community property into
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6
property of the state.”) (citations omitted). However, in determining the nature and scope of the
community property rights at issue, the Court must examine applicable state law. See Butner v.
United States, 440 U.S. 48, 54, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979) (“[C]ongress has generally
left the determination of property rights in the assets of a bankrupt’s estate to state law.”).
Under New Mexico law, there is a statutory presumption that all property acquired during
the marriage is community property. N.M.S.A. § 1978 § 40-3-12(A) (Repl. Pamp. 1999)
(“Property acquired during marriage by either husband or wife, or both, is presumed to be
community property.”). See also, N.M.S.A. 1978 § 40-3-8(B) (Repl. Pamp. 1999) (“Except as
provided in subsection C of this section, “community property” means property acquired by
either or both spouses during marriage which is not separate property.”); Stroshine v. Stroshine,
98 N.M. 742, 743, 652 P.2d 1193, 1194 (1982) (“[P]roperty acquired by either or both spouses
during their marriage is presumptively community property.”)(citations omitted); Fingado, 113
B.R. at 40 (“In New Mexico, there is a clearly stated presumption of community property.”).
The presumption of community property can be overcome by a preponderance of evidence.
Nichols v. Nichols, 98 N.M. 322, 327, 648 P.2d 780, 785 (1982) (citations omitted). The party
asserting the separate character of property has the burden of going forward with the evidence to
establish the separate ownership interest. Id.; See also Campbell v. Campbell, 62 N.M. 330, 341,
310 P.2d 266, 273 (1957) (“[T]he contestant asserting the separate character of the property has
not only the burden of going forward with his evidence, but of establishing separate ownership
by a preponderance of evidence.”) (citation omitted). 	In order to overcome the presumption of
community property and show the separate character of the ownership interest in the disputed
property, factual evidence must be produced to indicate that the property meets a criterion of
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7
separate property as defined in N.M.S.A. 1978 § 40-3-8 (1999 Repl. Pampl). C & L Lumber v.
Texas American Bank, 110 N.M. 291, 294, 795 P.2d 502, 505 (1990).
The five criteria for separate property contained in N.M.S.A. 1978 § 40-3-8 (1999 Rep.
Pamp.) are:
(1) property acquired by either spouse before marriage or after entry of a
decree of dissolution of marriage;
(2) property acquired after entry of a decree entered pursuant to Section
40-4-3 NMSA 1978 unless the decree provides otherwise;
(3) property designated as separate property by a judgment or decree of
any court having jurisdiction;
(4) property acquired by either spouse as a gift, bequest, devise or descent;
and
(5) property designated as separate by a written agreement between
the spouses, including a deed or other written agreement
concerning property held by the spouses as joint tenants or tenants
in common in which the property is designated as separate
property.
N.M.S.A. 1978 § 40-3-8 (1999 Repl.Pamp.).
The only evidence offered by Debtor in support of her position that the trailers are the sole and
separate property of her non-filing spouse are certificates of title for the 1994 Guthrie and the
2002 Gooseneck trailer, and a Certificate of Origin for the 2003 Gooseneck Trailer reflecting the
name of Justin Victor as the registered owner or transferee. 	No testimony was offered at the
final hearing on the Trustee’s Objection to Exemptions. 	This evidence fails to show that any of
the criteria for separate property have been met, and is, therefore, insufficient to overcome the
presumption that all property acquired during the marriage is community property. Cf. C & L
Lumber, 110 N.M. at 294 (finding that a recitation in a deed not signed by both spouses that the
property was sole and separate did not affect the presumption that such property acquired during
the marriage was community property). The Court finds, therefore, that the property at issue is
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8
community property under New Mexico law.
A determination that the property at issue is community property under state law does not
end the inquiry for purposes of determining whether the community property is property of the
Debtor’s bankruptcy estate. 	Community property passes into the Debtor’s bankruptcy estate
under 11 U.S.C. § 541(a)(2) provided that such property is either: 1) under the sole, equal, or
joint management and control of the debtor; or 2) liable for an allowable claim against the debtor,
or for both an allowable claim against the debtor and an allowable claim against the debtor’s
spouse, to the extent such interest is so liable. 11 U.S.C. § 541(a)(2)(A) and (B). The Debtor
contends that the trailers are all used by her non-filing spouse in his separate business, and, in
fact, the trailers are all titled in the name of her non-filing spouse. Under New Mexico law, this
is sufficient evidence that only the Debtor’s non-filing spouse has the power to manage and
control the property. N.M.S.A. 1978 § 40-3-14(B) (Repl. Pamp. 1999) (“Where only one spouse
is . . . named in a document evidencing ownership of community personal property . . . . only the
spouse so named may manage, control, dispose of or encumber the community personal property
described in such a document evidencing ownership . . .”). 	The trailers, thus, do not qualify as
community property under 11 U.S.C. § 541(a)(2)(A).
However, the trailers do pass into the Debtor’s bankruptcy estate as community property
under 11 U.S.C. § 541(a)(2)(B). Although counsel for the Debtor asserted at the final hearing
that the Debtor’s purpose for filing bankruptcy was to obtain relief from debts incurred by the
Debtor during a prior marriage, there is no evidence that the debts listed in the Debtor’s
statements and schedules are the Debtor’s separate debts. 	The Warranty Deed attached as an
exhibit to Debtor’s response to the Trustee’s Objection to Exemptions is dated September 20,
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9
2000 and identifies the Justin Victor and the Debtor as husband and wife. The unsecured
creditors identified on Debtor’s Schedule F reflect dates that such claims were incurred ranging
from December of 2003 to December 2004. 	It follows that the debts listed in Debtor’s
bankruptcy schedules were incurred during the marriage. Such debts are presumptively
community debts under New Mexico law. See Fingado, 113 B.R. at 42 (Noting that there is a
presumption under New Mexico law that all debts incurred during the marriage are community
debts). See also Fernandez v. Fernandez, 111 N.M. 442, 444, 806 P.2d 582, 584 (Ct. App. 1991)
(“[A]s a general rule, one spouse may incur a community debt even though the other spouse does
not participate in the transaction.”) (citing Execu-Systems, Inc. v. Corlis, 95 N.M. 145, 619 P.2d
821 (1980)). 	Under New Mexico law, community debts are to be satisfied first from
community property. N.M.S.A. 1978 § 42-3-11(A) (Repl. Pamp. 1999) (“[c]ommunity debts
shall be satisfied first from all community property.”). 	The trailers, which constitute community
property under New Mexico law, are liable for the community debts listed in the Debtor’s
schedules. The Court, therefore, concludes that the 1994 Guthrie Trailer, the 2003 Gooseneck
Trailer and the 2002 Gooseneck Trailer constitute community property properly included in the
Debtor’s bankruptcy estate under 11 U.S.C. § 541(a)(2)(B).
Having found that the property at issue is community property that is property of the
Debtor’s bankruptcy estate, the Court must determine the extent to which the property is exempt.
Debtor’s assertion that the value of her interest in the community property is fully exempt does
not lead to the conclusion that the property at issue is not subject to liquidation by the Chapter 7
trustee. 	The full value of the community property comes into the bankruptcy estate, and the
Debtor is permitted to claim an exemption, to the extent available, in her one-half interest in the
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6In In re Page, because there were no objections to the debtor’s claimed exemptions, the
debtor’s exemption was not limited to her one-half interest in the subject property, and the debtor
was allowed to exempt the full value of the community property. 171 B.R. at 352.
10
subject community property. See In re Passmore, 156 B.R. 595, 599 (Bankr.E.D.Wis. 1993)
(“[I]f the debtor has a community property interest in an asset, that entire asset is included in the
bankruptcy estate under 11 U.S.C. § 541(a)(2), not merely the debtor’s one-half interest, as is the
rule with assets held as joint tenants or tenants in common.”). 	As noted by the court in In re
Page, 171 B.R. 349, 352 (Bankr.W.D.Wis. 1994) 6, “sections 522(b) and (d) do not apply to the
debtor’s community property interest but only to her individual interest.” 	Thus the debtor may
exempt her one-half interest in the community property, while the whole of the property is
included in the bankruptcy estate. Id.
Nor can the Debtor’s non-filing spouse assert an exemption in community property that is
property of the bankruptcy estate. “[T]here is no provision for non-filing persons to claim their
own exemptions from the debtor’s estate. The statutory language is clear that the exemptions
must be claimed by or on behalf of the debtor.” 	In re Johnson, 184 B.R. 141, 145-146
(Bankr.D.Wyo. 1995). 	The Johnson court suggests that it may be possible under certain
circumstances for a debtor to claim a state law exemption on behalf of the non-filing spouse. Id.
But here, the Debtor has elected the federal bankruptcy exemption scheme, so the Court need not
consider for purposes of the bankruptcy proceeding whether it is possible for the Debtor to claim
a state law exemption in the property on behalf of her non-filing spouse.
Based on the foregoing, the Court concludes that the 1994 Guthrie Trailer, the 2003
Gooseneck Trailer, and the 2002 Gooseneck Trailer are property of the Debtor’s bankruptcy
estate in which Debtor is entitled to claim an exemption in her one-half interest. 	After all
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7$15,125.00 in total exemptions claimed under 11 U.S.C. § 522(d)(5), less $10,225.00
actually available to exempt under 11 U.S.C. § 522(d)(5).
11
available exemptions are applied under 11 U.S.C. § 522(d), there remains $4,900.00 in non-
exempt property of the bankruptcy estate that is subject to liquidation by the Chapter 7 Trustee. 7
WHEREFORE, IT IS HEREBY ORDERED that the Trustee’s Objection to Exemptions
is GRANTED. 	The Debtor is entitled to claim an exemption in her one-half interest in the 1993
Guthrie Trailer in the amount of $3,100.00, which is the remainder of the exemption amount
available under 11 U.S.C. § 522(d)(5). 	The Chapter 7 Trustee may liquidate the 1993 Guthrie
Trailer, subject to the Debtor’s claimed exemption.
___________________________________
MARK B. McFEELEY
United States Bankruptcy Judge
I certify that on the date shown on the attached document verification, a true and correct copy of
the foregoing was either electronically transmitted, faxed, delivered or mailed to the listed
counsel and/or parties.
Eric Dixon 	Clarke C. Coll
Attorney for Debtor 	Chapter 7 Trustee
309 S Ave. A 	PO Box 550
Portales, NM 88130 	Roswell, NM 88202
________________________________
Patti G. Hennessy
Law Clerk
(505) 348-2545
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12
EXHIBIT A
The changes in Debtor’s scheduled assets and claimed exemptions can be traced as follows:
Property 	Initial
Schedules
Amended
Schedules
8/17/05
Amended
Schedules
9/2/05
Amended
Schedule C
9/20/05
Amended
Schedules
3/16/05
546 Moore’s
Manor
community
property
value =
$30,000.00
(secured
claim of
$25,000.00)
Exemption =
$5,000.00
NMSA § 42-
10-9
community
property/joint
no change in
value
Sched C not
amended
community
no change in
value
exemption =
$5,000.00
NMSA § 42-
10-9
1971
Mobile
Home
Located at
546
Moore’s
Manor
value =
$32,500.00
Exemption
= $7,500.00
NMSA §
42-10-9
community
property/
joint tenant
value =
$30,000.00
(secured
claim of
$25,000.00)
Exemption -
none claimed
1971 Mobile
Home
community
property
value =
$2,500.00
exemption =
$2,500.00
NMSA § 42-
10-9
wife
value =
$150.00
Sched C not
amended
Community
value =
$2,500.00
exemption =
$2,500.00
NMSA § 42-
10-9
see above
(combined
w/ real
property)
community -
located on
546 Moore’s
Manor
value =
$2,500.00
Exemption =
$2,500.00
11 U.S.C. §
522(d)(5)
1994 Guthrie
Trailer
not listed 	wife
value =
$150.00
Sched C not
amended
husband
value =
$12,000.00
exemption =
$12,000.00
NMSA § 42-
10-1, 2
value =
$8,000.00
Exemption
= $8,000.00
NMSA §
42-10-1, 2
husband
value =
$8,000.00
Exemption =
$8,000.00
11 U.S.C. §
522(d)(1)
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13
2002
Gooseneck
Trailer
not listed 	wife
value =
$150.00
Sched C not
amended
husband
value =
$4,000.00
Exemption =
$4,000.00
NMSA § 42-
10-1, 2
value =
$2,750.00
Exemption
= $2,750.00
NMSA §
42-10-1, 2
husband
value =
$2,750.00
Exemption =
$2,750.00
11 U.S.C. §
522(d)(5)
2003
Gooseneck
trailer
not listed 	wife
value =
$150.00
Sched C not
amended
Husband
value =
$5,000.00
Exemption =
$5,000.00
NMSA § 42-
10-1, 2
value =
$3,300.00
Exemption
= $3,300.00
NMSA §
42-10-1, 2
husband
value =
$3,300.00
Exemption =
$3,300.00
11 U.S.C. §
522(d)(5)
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