In Re Geis
- Reporters:
- ,
- Before:
- Drake
ORDER
W.H. DRAKE, Jr., Bankruptcy Judge.
This case is before the Court on the debtor’s motion to transfer the case to the Bankruptcy Court for the District of New Jersey, the state where the debtor now resides. The Trustee in this case opposes the motion on the grounds that property of the estate includes certain claims which the Trustee should pursue for the benefit of creditors and that the interest of justice and convenience of the parties require this Court to retain venue to determine the issues remaining unresolved — particularly
The claims which the Trustee desires to pursue for the benefit of creditors arise out of an automobile accident which the debtor was involved in about eight (8) months before this case was commenced. Property of the bankruptcy estate includes “all legal or equitable interests of the debt- or in property as of the commencement of the case.”
The debtor argues that, even if his claims arising out of the accident are property of the estate, payments for the claims would either be totally exempt or would not substantially exceed his exemption rights under
(11) The debtor’s right to receive or property that is traceable to:
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(D) A payment, not to exceed $7500.00 on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the debtor or an individual of whom the debt- or is dependent....
Únder these provisions, the debtor may not exempt the portion of his claim which represents his actual pecuniary loss (in the form of medical expenses).
See In re Haga,
48 B.R. 492, 494 (Bankr.E.D.Tenn.1985) (interpreting an identical Tennessee statutory exemption). Also, the portions of the debtor’s claim allocable to property damage are not exempt.
See In re Territo,
36 B.R. 667 (Bankr.E.D.N.Y.1984) (interpreting the federal exemption,
Some courts have noted that the exclusion of pain and suffering damages and compensation for actual pecuniary loss from the exemption for payments on account of personal bodily injury almost makes the exemption meaningless since typically an award for personal bodily injury is made up of just these types of damages. The court in
In re Territo,
36 B.R. 667 (Bankr.E.D.N.Y.1984), noted this problem and concluded that an exemption would be allowed under
Following this analysis, it appears that the payments the debtor will receive for his claims arising from his accident can be claimed as exempt up to $7,500.00, depending on whether his injuries are extensive enough to account for this amount after items of property damage and medical expenses are deducted. While the value of the claim is to be determined as of the date of the petition, the Court cannot agree with the debtor that the value has increased since the filing because of the pain and
The debtor also argues, based on the reasoning of
In re Musgrove,
7 B.R. 892 (Bankr.W.D.Va.1981), that the full amount of his claim should be exempt because assignment of personal injury claims is not permitted in Georgia. It appears clear, however, that assignability is no longer the question when deciding whether to allow an exemption. The Bankruptcy Court in
In re Tignor,
21 B.R. 219 (Bankr.E.D.Va.1982), relied upon the reasoning of
Mus-grove
to hold that claims for personal injuries were fully exempt under Virginia common law because such claims were not assignable. The Court of Appeals for the Fourth Circuit reversed this holding in
Tignor v. Parkinson,
729 F.2d 977, 981 (4th Cir.1984), which held that an exemption is not to be based on common law or on whether the cause of action for injuries could be reached by creditors in a state court. Since the exemption for the bodily injury claim could only be based on Virginia’s exemption statute, the court concluded: “The debtor was entitled to claim an exemption for such a claim, whether liquidated or unliquidated, only under the homestead exemption statute with other property claimed thereunder in the aggregate amount of $5,000.” 729 F.2d at 982. It thus appears clear that the maximum amount which the debtor in this case could claim as exempt under
There is currently no evidence before the Court to enable it to determine what portions of the debtor’s claim for his accident can be allocated toward the $7,500.00 exemption and what portions must be excluded as items of property damage or medical expenses. It cannot currently even be determined whether the debtor’s injuries are extensive enough to claim the full $7,500.00 exemption. There is also insufficient evidence to determine if debtor’s claims could be exempted under the provisions dealing with “disability benefits”
1
under
It is clear, however, that the evidence relating to the claims, as well as to how the claims should be allocated, is present in the state of Georgia, where the accident occurred, and that any suit based on the accident would probably be tried in Georgia.
Furthermore, the Trustee has raised further issues relating to whether the debtor is entitled to a discharge, and the Trustee has been granted an extension of time to object to discharge. The issues include whether the debtor’s Georgia business was substantially undervalued by the debtor, whether the estate has any claims against the debtor’s attorney arising from the dismissal of the debtor’s suit relating to the termination of employment in this district, and whether the amount owed to the debt- or by a Georgia resident is $103,782.00 or only $100.00. In addition, the Trustee has apparently already begun an investigation of these issues, and a new Trustee in a different district would have to duplicate some of these efforts and would have to gain access to evidence found in this district.
All these considerations lead the Court to conclude that it should retain venue at this time. The factors to be considered in deciding whether to transfer venue include: (1) the proximity of the creditors to the court; (2) the proximity of the bankrupt to the court; (3) the proximity of necessary witnesses to the court; (4) the location of the assets; and (5) the economic administration of the estate.
In re Commonwealth Oil Refining Co., Inc.,
596 F.2d 1239, 1247 (5th Cir.1979)
cert. denied,
444 U.S. 1045, 100 S.Ct. 732, 62 L.Ed.2d 731
Accordingly, it is ORDERED that the debtor’s motion to transfer venue be DENIED.