987 F.3d 912
10th Cir.2021Background
- Thomas and Carol Crow sold a Jackson, WY home in 2015; about $3.7 million of the proceeds was placed in a Fidelity investment account.
- The Fidelity account application included a handwritten notation and subsequent statements showing title: “Thomas L Crow and Carol A Crow – Tenants by the Entirety.”
- The Crows granted a durable power of attorney to their daughter; the Marvins (son‑in‑law and daughter) made substantial withdrawals and transfers from the account in 2015–2016.
- Radiance held a $2.8 million judgment against Thomas Crow; Thomas filed Chapter 7 and claimed the Fidelity account exempt under 11 U.S.C. § 522(b)(2)(B) as tenancy by the entirety.
- The bankruptcy court found the account was held as tenancy by the entirety and exempt; the Trustee’s turnover motion was deferred pending an adversary proceeding to determine the amount of joint debt. The BAP affirmed; Radiance appealed to the Tenth Circuit.
- The Tenth Circuit affirmed the exemption under Wyoming law and dismissed Radiance’s challenge to the turnover/transfer-order portion of the appeal for lack of standing.
Issues
| Issue | Radiance's Argument | Crow's Argument | Held |
|---|---|---|---|
| Jurisdiction: was BAP decision final and appealable? | BAP’s ruling was not final because exemption amount remained contingent on adversary proceeding; appeal interlocutory. | Brayshaw controls: grant/denial of claimed exemption is final and immediately appealable. | Court rejects Crow’s motion to dismiss; has jurisdiction to review the exemption ruling under Brayshaw. |
| Creation of tenancy by the entirety in the Fidelity account | Account type and documents are not the sort of "instrument" to create entirety; Wyoming disfavors presumed entirety. | The account application (handwritten note + account title) is a creating instrument showing intent to create survivorship/entirety. | Held: under Wyoming law the application is a creating instrument; intent to create a right of survivorship was shown; tenancy by the entirety exists. |
| Severance: did post‑creation conduct (POA withdrawals, transfers, stipulation) sever the entirety? | Withdrawals by Marvins and subsequent stipulation showed alienation/severance of the entirety estate. | Transfers were executed under valid POA on behalf of both spouses and ratified; post‑petition stipulation cannot retroactively defeat petition‑date exemption. | Held: tenancy was not severed; withdrawals were under POA/ratified and later stipulations do not alter petition‑date exemption. |
| Standing to appeal turnover/transfer-order requiring adversary proceeding | The turnover order was erroneous and reviewable on appeal. | Radiance lacks "person aggrieved" standing to challenge the procedural transfer order; it did not suffer direct pecuniary injury from that order. | Held: Radiance lacks standing to appeal the turnover/transfer procedural order; that portion of the appeal dismissed. |
Key Cases Cited
- Bullard v. Blue Hills Bank, 135 S. Ct. 1686 (U.S. 2015) (bankruptcy finality principles differ; aggregation of discrete controversies may be appealable)
- Howard Delivery Serv. v. Zurich Am. Ins. Co., 547 U.S. 651 (U.S. 2006) (orders that finally dispose of discrete disputes in bankruptcy may be immediately appealed)
- In re Brayshaw, 912 F.2d 1255 (10th Cir. 1990) (grant or denial of a claimed exemption is a final appealable order)
- Wambeke v. Hopkin, 372 P.2d 470 (Wyo. 1962) (two alternative tests for establishing a right of survivorship/tenancy by the entirety)
- Fleig v. Estate of Fleig, 413 P.3d 63 (Wyo. 2018) (bank account contract can unambiguously evidence intent to create right of survivorship)
- White v. Stump, 266 U.S. 310 (U.S. 1924) (exemption status is determined as of the bankruptcy petition date)