MEMORANDUM OF DECISION
Submitted for decision on a stipulated record is the trustee’s objection to the debtor’s exemption claim in certain real estate. I conclude that the objection must be sustained
Background
Betty L. Cole (“Cole” or “debtor”) voluntarily filed for Chapter 7 relief on March 23, 1995. She designated certain “raw land” in Hartland, Maine, as exempt under 14 M.R.S.A. § 4422(1). The Chapter 7 trustee timely objected, asserting that the exemption does not apply because Cole lives elsewhere. Although she concedes that she has never resided at the Hartland property, Cole asserts that she has long intended to do so.
Both before and after filing her bankruptcy petition, Cole resided in Vassalboro, Maine. She holds an undivided one-half interest in a mobile home and real estate there. Cole lives with the property’s co-owner, who refuses to forsake Vassalboro for Hartland. Although Cole claims that she and her disabled, minor daughter will settle in Hartland “as soon as circumstances permit,” those circumstances consist mainly, if not completely, of convincing her companion that he should move to Hartland with her.
In the summer of 1994, during a period when she and her Vassalboro mate’s relationship got a bit rocky, Cole installed a septic system at the Hartland property. Aside from that, the land remains wholly unimproved.
Discussion
1. Statutory Context.
Maine has “opted out” of the federal exemption scheme. 11 U.S.C. § 522(b)(1); 14 M.R.S.A. § 4426.
See In re Bates,
2. Burden of Proof.
Pursuant to Fed.R.Bankr.P. 4003(c), “the objecting party has the burden of proving that the exemptions are not properly claimed.”
See Bates,
Thus, Cole must adduce evidence that would support a finding that she “uses” the Hartland property “as a residence.” In the absence of such evidence, the trustee’s objection will be sustained.
Hodgson,
S. Evaluating Cole’s Claim.
“[I]n divining the exemption statute’s content, an overarching principle of statutory construction applies: ‘Exemption statutes are to be liberally construed in favor of the debtor.’”
In re Bates,
As to Maine’s residence exemption in particular, Judge Goodman has observed:
The concept of ‘residence’ is a flexible one, and must be construed in light of the policies underlying the exemption statute. In general, the purpose of exemption statutes is to secure for the debtor the means to support himself and his family. In particular, homestead statutes promote the stability and welfare of the state by encouraging property ownership, and they secure to the householder a home for himself and his family. While the homestead exemption should be liberally construed in order to afford all the relief the legislature intended, it must not be so broadly construed as to ignore the Maine legislature’s clearly expressed intention to favor homeowners over non-homeowners.
Grindal,
Under certain circumstances, a debtor may validly claim the residence exemption even if he or she does not physically occupy the property on the petition date: “Given the purposes of the homestead exemption, a finding that the debtors
actually
occupied the homestead on the filing date is neither necessary nor sufficient to qualify for the exemption. Occupancy may be constructive as well as actual.”
Grindal,
But decisions determining that a debtor’s “constructive occupancy” supports an exemption claim all involve situations where the debtor actually resided on the property at one time, and, although not resident there on the petition date, demonstrated an intention to return.
See, e.g., In re Dodge,
Even if I were to accept (for the moment) the proposition that a residence exemption can be established without prior occupancy, Cole has demonstrated nothing more than a vague intention to live on the Hartland property and has shown no present plans or tangible, contemporary preparations to move there. That is not enough.
See, e.g., In re Claflin,
Although I will construe the exemption statute liberally in order to ensure that its beneficial objectives are realized, I will not rewrite the statute. Residency of some character is a prerequisite to 14 M.R.S.A. § 4422(l)’s exemption entitlement.
See, e.g., Huffines,
Conclusion
For the reasons set forth above, the trustee’s objection to debtor’s claim of exemption is SUSTAINED.
Notes
. This memorandum sets forth findings and conclusions in accordance with Fed.R.Bankr.P. 7052 and 9014. Unless otherwise indicated, all references to statutory sections are to the Bankruptcy Reform Act of 1978 (“Code” or "Bankruptcy Code”), as amended, 11 U.S.C. § 101, et seq. References to “M.R.S.A." are to the Maine Revised Statutes Annotated (1980 & Supp.1994).
. Cases and other authorities interpreting the Code's § 522(d)(1) residence exemption appropriately assist in defining the limits of Maine’s residence exemption. The Maine statute mirrors the Code's in its reference to properly that the debtor “uses as a residence.” "Maine’s legislature enacted 14 M.R.S.A. § 4422 in 1981 as a component of its opt-out legislation,” adopting much of the federal exemption scheme.
In re Bates,
To be precise. Cole asserts that she has always intended the Hartland property to be her “homestead." Debtor's Response to Trustee's Objection. The term "homestead" does not necessarily equate with "residence” in all cases, but Congress intended the words to be interchangeable in the context of § 522(d)(1).
See In re Brent,
. Of course, where a state has opted-out of the federal exemption scheme, or the debtor otherwise elects the state's list of exemptions, that particular state’s exemption statute will ultimately control whether and to what extent constructive occupancy will suffice to support a claim of exemption.
See, e.g., In re Sikkink,
. In applying Ohio’s exemption statute, which closely resembles Maine's, the Cottingim court commented:
'Premises that have not been occupied as a home or dwelling place have not been impressed with the character of a homestead and cannot be claimed as such. To constitute a homestead under the statute, there must be a residence, actual or constructive.... [Wjhere premises have never been used or occupied as a homestead the right thereto cannot be acquired by a mere intention to use them as such at some indefinite future time.'