In Re Man
MEMORANDUM OPINION
This matter came before the Court on February 17, 2010 upon the Trustee’s Objection to Debtor’s Property Exemptions (the “Objection”), filed by Edwin H. Ferguson, Jr., the duly-appointed Chapter 7 trustee in this case (the “Trustee”), on November 13, 2009. At the hearing, Es-ten H. Goldsmith appeared on behalf of the above-referenced debtor (the “Debt- or”) and Mr. Ferguson appeared in his capacity as the Trustee. The Objection presents a matter of first impression: whether a condominium may be properly exempted as a health aid pursuant to N.C. GemStat. § lC-1602(a)(7). After consideration of the Objection, the evidence presented at the hearing, the arguments of the parties, and the relevant law, the Court will allow a portion of the Condominium to be exempted as a health aid and sustain the Objection in part.
I. JURISDICTION
The Court has jurisdiction over the subject matter of this proceeding pursuant to 28 U.S.C. §§ 151, 157 and 1334, and the General Order of Reference entered by the United States District Court for the Middle District of North Carolina on August 15, 1984. This is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2)(B), which this Court has the jurisdiction to hear and determine.
II. FACTS AND PROCEDURAL POSTURE
In the late 1990s, the Debtor began to suffer from apparent allergies. Several years later, she was diagnosed with a neu-ro-toxic illness with direction from her physician to live in a chemical free “safe environment.” In 2005, her illness was so severe that she could no longer work. In 2006, the Debtor was diagnosed with toxic encephalopathy. She tolerates no chemical cleaners, scented products, perfumes, or dyes and has to use a water purifier. The Debtor currently suffers from bipolar affective disorder, generalized anxiety, fi-bromyalgia, toxic encephalopathy, and multiple chemical sensitivity syndrome (environmental illness). She testified that she underwent a “bio-detoxification” program and “allergy desensitization” therapy with a physician named Dr. Allan D. Lieberman. After consulting with three doctors, the determined treatment was avoidance of environmental irritants such as mold, perfumes, petrochemicals, cleaning products, and pesticides. The Debtor has received Social Security disability since January of 2008. The recommended treatment of the Debtor’s condition is to create a chemical free environment.
The Debtor purchased a condominium located at 1919 Meadowlark Lane # 58, Charlotte, North Carolina (the “Condominium”) in August of 2008 for $29,000. She testified that when she purchased the Condominium, she intended to fix it into a “safe home” that would accommodate her illness. A doctor was not involved in the purchase or selection of the Condominium, nor did the Debtor receive a written prescription from a doctor. Rather, the
The Debtor testified that her selection of the Condominium was based on information that she received from Dr. Lieberman at an environmental health clinic, including a pamphlet on how to keep her home environmentally safe, and from a book that the Debtor purchased. The Debtor testified that the doctor prescribed a “mold-free home.” She testified that she called environmental consultants to advise her in the process of creating her safe home, such as what type of paint to use on inside surfaces.
The Debtor also testified that she made improvements to the Condominium to comply with what her doctors recommended. The Debtor bought a new heat pump that cost $2,700. She removed the rug from the floor to reduce dust. She replaced the flooring with ceramic tiling, using low-VOC grouting and tiling products. She replaced the kitchen counter and cabinets, which were moldy and had water damage, with a used stainless steel table. A sink was welded to the stainless steel table, which was welded to the plumbing. She replaced the moldy refrigerator. She purchased replacement windows to replace moldy, rotted windows. She purchased new grills for the heating vents because the old ones were rusty. She put wire shelving in the closets. The Debtor testified that all of the above improvements were made to accommodate her environmental illness.
The Debtor testified that she expended $14,441.57 for these modifications. However, her invoices, which were entered into evidence, itemized her modifications as follows:
$ 794.50 — plumbing repair
214.50 •— stainless steel table
820.00 — install sink in stainless steel table
1,411.58 • — ■ heat pump and air handler
400.00 — heat and air labor
307.95 — air duct cleaning
607.81 — ceramic tile
1,800.00 — ceramic tile installation
557.08 — low-VOC tiling materials
500.00 — carpet removal, cleaning
825.43 — paint and painting equipment
100.28 •— equipment rental
577.50 •— baseboard installation, painting, finishing, door installation
323.17 — wire shelving
1,677.00 — replacement windows
119.95 ■— radon detector
100.00 — shelving labor
285.00 — radon testing
412.82 — refrigerator
1,104.55 — miscellaneous expenses
$12,939.12
On August 31, 2009, the Debtor filed her Chapter 7 bankruptcy. On Schedule A, she listed the Condominium, which she valued at $36,100. Schedule A also states, “Debtor has severe environmental sensitivities and current residence has been specially prescribed by debtor’s physician.” Attached to Schedule A is a letter from Neal Speight, MD, which describes the Debtor’s medical condition and states that the Debtor “had to make a number of changes to be able to live” in the Condominium. The letter goes on to describe the changes that the Debtor made to the Condominium and states: “These upgrades were expensive, but medically necessary.”
Among her exemptions, the Debtor claimed, pursuant to N.C. Gen.Stat. § 1C-1602(a)(1), a $18,500 homestead exemption in the Condominium. Curiously, the Debt- or did not exempt any property as a professionally prescribed health aid. On No
On December 3, 2009, the Debtor filed a Brief in response to the Trustee’s Objection. The Brief asserted that the equity in the Condominium is exempt because “the Condominium itself is a ‘health aid.’ ” On December 4, 2009, the Debtor received her Chapter 7 discharge. At 10:32 a.m. on December 16, 2009, just minutes before the hearing on the Objection, the Debtor amended her exemptions by claiming that the $17,600 of equity in the Condominium is exempt as a health aid pursuant to N.C. Gen.Stat. § 1C-1602(a)(7). The Debtor continued to claim her homestead exemption of $18,500. At the December 16 hearing, the Debtor revealed that she had just amended her exemptions, and the Trustee requested an opportunity to review the amended exemptions. The Court understood that the Trustee objected to the amended exemptions, specifically the exemption of the Condominium as a health aid. The hearing on the Objection was continued to January 20, 2010. On that date, the hearing was continued to February 17, 2010, again at the parties’ request. At the final hearing on February 17, 2010, the matter was taken under advisement.
III. PROCEDURAL ISSUES
A. May the Debtor Amend Her Exemptions Post-Discharge?
The Trustee questions whether the Debtor should be allowed to amend her exemptions after her discharge has been entered. Rule 1009(a) provides that “[a] voluntary petition, list, schedule, or statement may be amended by the debtor as a matter of course at any time before the case is closed.” Fed. R. Bankr.P. 1009(a). “Amendment of schedules by a debtor is liberally allowed pursuant to F.R.B.P. 1009(a) as a matter of course at any time before the case is closed.”
In re Reardon,
Courts have allowed debtors to amend their petitions post-discharge under Rule 1009(a).
See, e.g., Ryen v. Olmstead (In re Olmstead),
Because the case is not closed, and the Trustee makes no allegation of prejudice or bad faith, the Debtor’s post-discharge amendment of her exemptions is allowed.
B. Did the Trustee Properly Object to the Amended Exemptions?
On November 13, 2009, the Trustee filed the Objection to the Debtor’s exemptions. On December 16, 2009, just before the hearing on the Objection, the Debtor filed amended exemptions that claimed the equity in the Condominium to be exempt as a health aid pursuant to N.C. Gen.Stat. § 1C-1602(a)(7). At the December 16, 2009 hearing, the Trustee was not aware that the Debtor had, minutes before, amended her exemptions, and he expressed surprise. The attorney for the Debtor acknowledged, “It’s my fault for filing at the last minute.” The Trustee expressed his opposition to the amended exemptions, but he never filed a written objection to the amended exemptions.
Rule 4003(b)(1) provides:
Except as provided in paragraphs (2) and (3), a party in interest may file an objection to the list of property claimed as exempt within 30 days after the meeting of creditors held under § 341(a) is concluded or within 30 days after any amendment to the list or supplemental schedules is filed, whichever is later.
Fed. R. Bankr.P. 4003(b)(1). In addition, Section 522(Z) states that “[ujnless a party in interest objects, the property claimed as exempt ... is exempt.” 11 U.S.C. § 522(i). Under Rules 9014 and 4003(b), an objection to an exemption should be filed with the court. Fed. R. Bank. P. 9014(a) (“[i]n a contested matter not otherwise governed by these rules, relief shall be requested by motion ... ”); Fed. R. Bank. P. 4003(b) (“a party in interest may file an objection”);
Bace v. Babitt,
No. 07-2421,
In re Meyer,
Because the amended schedules were filed so close in time to the hearing on the trustee’s objection to the debtor’s exemptions, the trustee did not have the opportunity to file an amended objection. However, the trustee did raise several arguments objecting to the debt- or’s amended claim of exemptions both orally at the hearing and in a supplemental response filed on June 18, 1997, after the hearing was concluded. The debtor, in his post-hearing memorandum, asked the court to deny the trustee’s “mythical” objection. Under well-settled principles, a debtor is liberally permitted to amend his or her claim of exemptions in order to take advantage of available exemptions. This is precisely what the debtor is seeking to do. The debtor is arguing, in substance, that while he should have the unfettered right to amend his claim of exemptions, the trustee should be penalized for not formally objecting to a claimed exemption which the trustee learned about no earlier than 24 hours before the scheduled hearing. The court notes that under Fed. R. Bankr.P. 4003(b), the filing of amended schedules triggers a new 30 day period in which the trustee may object to the debtor’s claim of exemptions. Since the trustee timely objected to the debtor’s original claim of exemption, and since the items claimed exempt remain the same, the court, in order to promote judicial economy, will treat the trustee’s original objection as also extending to the amended claim of exemptions.
C. May the Debtor Apply More Than One Exemption to the Condominium?
The Trustee questions whether the Debtor may apply more than one of
The Debtor is attempting to use two exemptions on a single asset. When the Debtor filed her bankruptcy, Section 1 C-1601(a)(1) provided a homestead exemption up to the amount of $18,500, which the Debtor claimed in the Condominium. Section lC-1601(a)(7) states the debtor may exempt “[professionally prescribed health aids for the debtor,” but the statute states no dollar limitation. The Debtor exempted the remaining equity in the Condominium as a health aid.
Nothing in the language of N.C. Gen. Stat. § 1 C-1601 prevents a debtor from using two different subsections to exempt different portions of the same property. Neither Section 1 C1601 (a)(1) nor 1C-1601(a)(2) provides that any excess value in property exempted under one subsection cannot also be claimed as exempt under another subsection. The plain meaning of Section 1C-1601 allows a debtor to utilize multiple subsections to exempt different portions of the same property.
Moreover, the North Carolina Court of Appeals has allowed debtors to apply multiple exemptions to a single asset. In
AVCO Financial Services v. Isbell,
IV. ANALYSIS
Pursuant to Section 522(b) of the Bankruptcy Code, debtors may choose between the exemptions provided by federal law and those provided by state law, unless a state chooses to opt out of the federal exemption scheme. 11 U.S.C. § 522(b)(1). North Carolina opted out. N.C. Gen.Stat. § 1C-1601(f) (“The exemptions provided in The Bankruptcy Code, 11 U.S.C. § 522(d), are not applicable to residents of this State.”);
In re Opperman,
Exempt property. — Each individual, resident of this State, who is a debtor is entitled to retain free of the enforcement of the claims of creditors: ... Professionally prescribed health aids for the debtor or a dependent of the debtor.
“Exemption statutes are to be interpreted liberally.”
In re Grubbs,
A claimed exemption is “presumptively valid.” 9
Collier on Bankruptcy,
¶ 4003.04 (15th ed.2009). As the objecting party, the Trustee has the burden of proving that the Debtors’ exemptions are not properly claimed.
See
Fed. R. Bankr.P. 4003(c);
In re Sims,
The matter before the Court is a question of first impression. There does not appear to be a direct controlling precedent from the North Carolina Supreme Court or the Fourth Circuit Court of Appeals construing or applying N.C. GemStat. § lC-1602(a)(7). Some guidance is provided by courts that have been called upon to construe state health aid exemption statutes involving a variety of debtor property.
See Reardon,
At the outset, it is important to understand that the decision of this ease necessarily involves value judgments that have already been made by the North Carolina legislature. As one court stated,
There are strong, competing social values at issue here: the honest debtor’s interest in a fresh start, which is facilitated by having transportation to obtain medical care, and the legitimate creditor’s interest in receiving some or all of the amounts owed by the debtor, through the sale of the estate’s nonexempt assets and a distribution of the proceeds to creditors. The responsibility for determining how to balance these interests lies in this case with the state legislature.
McCashen,
A. Is the Condominium a Health Aid?
To determine whether any given item is a health aid, it is first necessary to determine whether the debtor has a medical need and, if so, whether the item claimed as exempt is necessary or beneficial to the debtor in addressing that medical need. The Debtor has been diagnosed with toxic encephalopathy. The Court accepts the Debtor’s uncontradicted testimony that it is medically necessary for her to live in a chemical free environment.
The Court found no cases that have interpreted the term “health aid” in N.C.Gen.Stat. § 1C-1602(a)(7). Two definitions have emerged in the case law. The
Driscoll
court concluded that a “health aid” is something that is uniquely suited and principally used for the diagnosis, cure, mitigation, treatment or prevention of disease or for the purpose of affecting any structure or function of the body.
Driscoll,
A “professional” is “one that engages in a particular pursuit, study, or science for gain or livelihood ... one with sufficient authority or practical experience in an are of knowledge or endeavor to resemble a professional.”
Hellen,
C. Is the Entire Condominium Exempt?
In concluding that only the equipment installed in a van to allow the disabled debtor to use and operate it are exempt, the
Hellen
court explained, “[a]d-aptations or modifications made to property do not render that property exempt in its entirety. The addition of a ramp or elevator to a home, for example, does not make the entire home exempt.”
Hellen,
The Trustee presented sufficient evidence to shift the burden of production to the Debtor. The Court has examined the
V. CONCLUSION
For the foregoing reasons, the Court sustains, in part, the Trustee’s objection to the Debtor’s claim of exemption in the Condominium. The Debtor properly claimed a $18,500.00 homestead exemption in the Condominium. Although there is no dollar limitation expressed in N.C. Gen. Stat. § lC-1601(a)(7), the Court finds that only those modifications that were necessary to meet the Debtor’s medical needs are exempt as professionally prescribed health aids. Since the Court has determined that $11,000.00 of the modifications to the Condominium were made to minimize the adverse effects of the Debtor’s medical condition, an additional $11,000.00 of the value of the Condominium may be exempted. The two exemptions total $29,500.00, so the remaining $6,600.00 of value in the Condominium may not be exempted.
This opinion constitutes the Court’s findings of fact and conclusions of law. A separate order shall be entered pursuant to Fed. R. Bankr.P. 9021.
ORDER
Pursuant to the memorandum opinion entered contemporaneously herewith, it is ORDERED that the Chapter 7 Trustee’s objection is sustained in part and the above-referenced Debtor is entitled to claim $18,500.00 of her condominium as exempt under N.C. Gen.Stat. § 1C-1601(a)(1) and $11,000.00 of her condominium as exempt under N.C. Gen.Stat. § 1C-1601(a)(7).
Notes
. The Court extended the time for the Trustee to object to exemptions to January 2, 2010.
. "The Bankruptcy Court is a court of equity.”
See, e.g., N.L.R.B. v. Bildisco and Bildis-co,
. While the Trustee retains the burden of proof throughout (it does not shift), once the objecting party produces evidence to rebut the claimed exemption, the burden of production shifts to the debtor "to come forward with unequivocal evidence to demonstrate that the exemption is proper.”
In re Carter,