474 B.R. 826
Bankr. E.D. Mich.2012Background
- Debtors filed a Chapter 7 petition on February 29, 2012; trustee objected to exemptions in a Mancelona, Michigan real property and a vehicle.
- The court overruled the vehicle objection; the real property objection remains for decision.
- The issue is whether the Mancelona property was used as a residence as of the petition date under 11 U.S.C. § 522(d)(1).
- At the § 341 meeting (April 11, 2012), Debtors testified their address was Garden City, Michigan, not the Mancelona property.
- Debtors described the Mancelona property as having a nonfunctional cabin and a pole barn with no evidence of residential use, and had not visited since October 2011.
- Debtors submitted an unsigned, unnotarized affidavit after the meeting, which the court disregarded as inconsistent with sworn testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Debtors used the Mancelona Property as a residence as of filing. | Trustee contends Debtors did not reside there as of February 29, 2012. | Holland contends they resided there, as later suggested in affidavits (not properly signed) and testimony. | Debtors did not use the property as a residence; exemptions denied. |
Key Cases Cited
- In re Wengerd, 453 B.R. 243 (6th Cir. BAP 2011) (exemptions determined as of filing date)
- In re Buick, 237 B.R. 607 (Bankr. W.D. Pa. 1999) (exemption entitlement determined as of petition filing date)
- Reid v. Sears, Roebuck and Co., 790 F.2d 453 (6th Cir. 1986) (avoid creating factual issues via later affidavits contradicting prior testimony)
- Laise v. City of Utica, 970 F. Supp. 605 (E.D. Mich. 1997) (same principle regarding post-testimony affidavits)