461 B.R. 161
Bankr. E.D.N.Y.2011Background
- Debtors filed for Chapter 7 on September 26, 2010; Sandra Stanley lists Jackson Heights address, Theodore lists Patchogue address, with Mt. Sinai address on SSN.
- Schedules list joint ownership of Jackson Heights and Mt. Sinai properties; Mt. Sinai is about 50 miles from Jackson Heights and has an outstanding mortgage.
- Jackson Heights property shows approximately $52,000 in equity; Sandra claims a $50,000 homestead exemption under CPLR 5206.
- Mt. Sinai property is subject to foreclosure and is not intended to be retained while debtors pursue sale; separation agreement requires maintaining separate residences for 6 months after April 8, 2010.
- Trustee objects to Sandra’s homestead exemption, arguing she did not reside at Jackson Heights on the petition date; Sandra asserts she moved in to claim the exemption and that Jackson Heights was her principal residence.
- 341 meeting scheduled for October 21, 2010, has been continued and not concluded as of the evidentiary hearing; evidence presented at March 29, 2011 hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Jackson Heights qualifies as Sandra's principal residence. | Stanley asserts she resided there on petition date and intended to make it permanent. | Trustee contends she did not reside there on petition date; Mt. Sinai residence is primary. | Sandra resided at Jackson Heights on petition date and intended permanent residence; exemption sustained. |
| Whether Sandra’s occupancy demonstrated regularity of use sufficient to establish occupancy at Jackson Heights as principal residence. | Sandra argues she lived there and moved in to claim exemption; children’s school and family ties support residence. | Trustee argues lack of exclusive residency undermines regular occupancy claim. | Record shows split occupancy; not shown by preponderance that Mt. Sinai was regularly occupied; insufficient to disqualify Jackson Heights as principal residence. |
Key Cases Cited
- In re Bace, 364 B.R. 166 (Bankr.S.D.N.Y. 2007) (principle that occupancy and intent determine principal residence for homestead exemption)
- In re Miller, 103 B.R. 65 (Bankr.N.D.N.Y. 1989) (one principal residence; occupation and intent test)
- In re Scott, 233 B.R. 32 (Bankr.N.D.N.Y. 1998) (regular occupancy and intent to reside permanently required)
- In re Moulterie, 398 B.R. 501 (Bankr.E.D.N.Y. 2008) (analysis of principal residence under state exemptions)