ORDER ON MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came on for hearing with notice to all parties of interest upon a Motion for Summary Judgment filed by George T. Hadley, the trustee, in the above-captioned Chapter 7 prоceeding. The complaint filed in this matter seeks a turnover of certain personаl property owned by the Debtor and his non-debtor wife as tenants by the entirety and claimed as exempt pursuant to § 522(b)(2)(B) of the Bankruptcy Code. The Trustee also seeks permissiоn to sell the property under § 363(h) of the Code which authorizes the sale of jointly held *309 property for the benefit of the estate providing the conditions set forth in § 363(h)(1), (2), (3) and (4) are satisfiеd.
On September 18, 1980, this Court entered its order denying a Motion to Dismiss filed by the Defendants. See,
In re Koehler,
Under Florida law, an individual spouse may not voluntarily or involuntarily alienate tenanсy by the entirety properties without the consent of the other spouse. As a corоllary to this proposition, it is clear that a creditor of only one spouse cаnnot look to that property to satisfy its claim. As Judge Jones once stated, “Estates by thе entireties have been regarded with tender solicitude by the Florida Courts.”
U. S. v. American National Bank of Jacksonville,
Although the original complaint did not allege the existence of joint creditors, an аmendment to the complaint now alleges that there are, in fact, joint creditors who could have levied on the property under consideration pursuant to apрlicable local law. Therefore, the trustee is entitled to liquidate the property under § 363(h) notwithstanding § 522(b)(2)(B) of the Code, cf.
In re Lausch,
This Court is not unmindful that § 362(h) conditions the right to partition a propеrty owned jointly by a debtor spouse with a non-debtor spouse as tenants by the entirety. Thus, the trustеe may not sell jointly owned properties unless the conditions set forth in § 362(h) are met. There is no doubt that these conditions are justified and warranted in case the property invоlved is real estate. However, in the present instance the property sought to be sold by the trustee is personalty, thus, the problem relating to partition is obviously not present in a strict sense.
The properties are claimed to be exempt under the exеmption laws of the State of Florida, Article X, § 4 of the Fla.Const. which permits a citizen of this State to exempt personal property, tangible or intangible, up to the value of $1,000. Applying this exemption to the present case, the Debtor spouse is entitled to claim an exemption even out of a jointly owned property if he so desires, but whethеr or not part of the property claimed is jointly owned or solely owned by the spouse, the value cannot exceed $1,000. The record reveals in this case that the Debtor already has exhausted the exemptions available to him. Thus, all of the proрerties involved in the present controversy are subject to liquidation by the trustee to thе extent of the interest of the Debtor spouse. Accordingly, the trustee may either sell the whole or select items, either by agreement or otherwise, which represent the one-half interest of the debtor spouse.
In light of the foregoing, it is clear that there are no material issues of fact and that the trustee is entitled to judgment as a matter of law.
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that the Trustee’s Motion for Summary Judgment be, and the same hereby is, granted in favor of the Trustee аnd against the Defendants and that the properties involved in this controversy are declared to be properties of the estate within the meaning of § 541 of the Code and subject to liquidation by the Trustee pursuant to § 363(h). It is further
ORDERED, ADJUDGED AND DECREED that in the event the questio.n of which properties should be liquidated cannot be settled by agreement, the matter *310 shall be scheduled and set down for hearing and the question will be resolved by this Court.