Fingado, In re, 91-2075
| Decision Date | 28 January 1992 |
| Docket Number | No. 91-2075,91-2075 |
| Citation | 955 F.2d 31 |
| Parties | In re Henry Sherman FINGADO, a/k/a H.S. Fingado, Debtor. Harley H. SWINK, Trustee, Plaintiff-Appellant, v. SUNWEST BANK as Trustee for the Estate of Gillespie; Dale B. Gerdeman; MPK Corporation; Euclid Alcon; Jacob Alcon; Valley National Bank; James M. Durrett, Adm. CTA for the Estate of Stella Dysart; Francis E. Doughty; Daniel H. Doughty; Michael Doughty; Dubois, Caffrey & Cooksey, P.A.; Loren E. Smith; Fairfield, Farrow, Hunt, Reecer, & Strotz, P.C.; Western Bank of Albuquerque; Jeffrey Neill Brown; Robert E. Brown; Stephen L. Rohde; Dan L. Nelson; H.E. Toles; and Bill Jones, Defendants, Valetta Ruth Fingado, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Leslie C. King, III, of Jurgens & King, Sante Fe (James R. Jurgens, with him on the brief), for plaintiff-appellant.
Robert Waldman, Albuquerque (J. Bart Wright, with him on the brief), for defendant-appellee.
Before HOLLOWAY and McWILLIAMS, Circuit Judges, and CAUTHRON, District Judge. *
The United States Court of Appeals for the Tenth Circuit, pursuant to the provisions of § 34-2-8 N.M.S.A.1978 (1991 Repl.) and N.M. S.C.R.A. 12-607, desires to submit to the Supreme Court of the State of New Mexico a request that the Court exercise its discretion to accept the following important certified question of New Mexico law which may be determinative of this cause now pending in this court, and as to which it appears that there is no controlling precedent in the Supreme Court of New Mexico:
Do the 1984 amendments to § 40-3-8 N.M.S.A.1978 (as enacted), apply retroactively so as to convert property acquired by husband and wife as joint tenants prior to the passage of the amendments, and thus originally held as separate property, into community property which would be included in the bankruptcy estate?
In 1964 Henry and Valetta Fingado purchased a piece of real property on Vermont Street in Albuquerque for rental purposes. In 1969 they purchased a house on Rio Grande Boulevard in Albuquerque to be their residence. In both cases the property was conveyed to "H.S. Fingado and Valetta Ruth Fingado, his wife as joint tenants." In 1987 an involuntary petition for Chapter 7 bankruptcy was filed against the Fingados. The petition was later dismissed as to Mrs. Fingado. In 1989 the Trustee sold the Vermont Street property but retained the proceeds pending adjudication of the rights of the parties. Two months later the Trustee petitioned to sell the Rio Grande property.
Mrs. Fingado entered an objection to the sale of the Rio Grande residence, claiming a half interest in the property. She further petitioned for half of the proceeds from the sale of the Vermont Street house. The Trustee countered that the properties were held as community property and as such they were property of the bankruptcy estate. 11 U.S.C. § 541 (1988). The United States Bankruptcy Court for the District of New Mexico held that under the law in force at the time of the filing of the petition in bankruptcy, Mrs. Fingado had failed to overcome the presumption that property held by spouses in joint tenancy is held as community property. 113 B.R. 37 (Bankr.D.N.M.1990). The court thus ruled in favor of the Trustee and authorized him to sell the Rio Grande Boulevard property free of any liens and interests of Mrs. Fingado other than a $20,000 homestead exemption, and that the proceeds of the earlier sale of the Vermont Street property were likewise free of any liens or interests of Mrs. Fingado. The district court reversed, holding that the properties were acquired as separate property and that they retained that character to the present day.
In this further appeal to the Tenth Circuit, the Trustee argues that in 1984 the New Mexico legislat...
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