In re Alexander

• Decision Date: 15 November 2001
• Docket Number: No. 01-6025MN.,01-6025MN.
• Citation: In re Alexander, 270 B.R. 281 (B.A.P. 8th Cir. 2001)
• Parties: In re Larry Kenneth ALEXANDER, Debtor. Larry Kenneth Alexander, Debtor—Appellant, v. Mary Jo A. Jensen-Carter, Trustee—Appellee.
• Court: U.S. Bankruptcy Appellate Panel, Eighth Circuit

270 B.R. 281 (2001)

In re Larry Kenneth ALEXANDER, DebtorLarry Kenneth Alexander, Debtor—Appellant, v.Mary Jo A. Jensen-Carter, Trustee—Appellee.

No. 01-6025MN.

United States Bankruptcy Appellate Panel of the Eighth Circuit.

Submitted October 2, 2001.

Filed November 15, 2001.

COPYRIGHT MATERIAL OMITTED

Karl A. Oliver, Roseville, MN, for appellant.

Mary Jo A. Jensen-Carter, St. Paul, MN, pro se.

Before KOGER, Chief Judge, WILLIAM A. HILL and SCHERMER, Bankruptcy Judges.

KOGER, Chief Judge.

Debtor Larry Kenneth Alexander appeals from an Order of the Bankruptcy Court¹ denying his request for relief under Fed.R.Civ.P. 60(b) and 11 U.S.C. § 105.For the reasons that follow, we affirm.

FACTUAL BACKGROUND

Three days prior to filing his pro seChapter 13 bankruptcy petition on June 18, 1998, Alexander moved out of his marital home at 875 Laurel Avenue, St. Paul, Minnesota.Because he was not physically residing at the 875 Laurel address at the time he filed his Chapter 13 petition, Alexander listed his address on his bankruptcy petition as 175 North Lexington Parkway, St. Paul, Minnesota, which was the address of the property where he was living while he and his wife were separated and when he filed his bankruptcy petition.Although he listed the 175 North Lexington property as his address, Alexander nevertheless claimed a homestead exemption for the 875 Laurel residence on his bankruptcy schedules.

After the Chapter 13Trustee objected to the homestead exemption because Alexander had referred to the wrong statute, Alexander amended his schedules, claiming the 875 Laurel Avenue residence exempt under Minnesota's correct homestead statute.The Chapter 13Trustee again objected, this time on the ground that Alexander was not physically residing at that property when he filed his petition and, therefore, it did not qualify as his homestead.

The Bankruptcy Court conducted an evidentiary hearing and entered an Order dated December 3, 1998, granting the Trustee's objection and ruling that 875 Laurel was not exempt in Alexander's case because he was not physically living in the residence on the day he filed his bankruptcy petition.At the same time, the Bankruptcy Court also converted Alexander's Chapter 13 case to Chapter 7.

Alexander timely appealed the Order granting the Trustee's objection to the homestead exemption.On August 4, 1999, the District Court for the District of Minnesota affirmed the Bankruptcy Court's decision and Alexander appealed that decision to the Eighth Circuit Court of Appeals.While the appeal was pending in the Eighth Circuit, the District Court stayed its Order on the condition that Alexander post a bond, which he failed to do.As a result, following a motion by one of the creditors involved in that litigation, the Eighth Circuit dismissed Alexander's appeal on November 17, 2000, suggesting in its opinion that the appeal itself had no merit.

Meanwhile, while the appeal was pending in the Eighth Circuit, Alexander's converted Chapter 7 case progressed in the Bankruptcy Court.Alexander again attempted to claim a homestead exemption for the 875 Laurel Avenue residence in his Chapter 7 case, arguing that he had moved back into that residence prior to the conversion and that, under the Eighth Circuit's decision in Armstrong v. Lindberg(In re Lindberg),735 F.2d 1087(8th Cir.1984), the date of conversion controlled which property he could claim exempt as his homestead.The Chapter 7Trustee objected on the grounds that Lindberg had been overruled by the enactment of the 1994 Bankruptcy Code, that the date of the original petition controlled which property Alexander could claim as his homestead, and, again, that Alexander was not residing at the 875 Laurel address when he filed his original petition.

On June 30, 1999, the Bankruptcy Court granted the Chapter 7Trustee's objection to the homestead exemption, seeIn re Alexander,236 B.R. 679(Bankr.D.Minn.1999), and Alexander appealed to the Bankruptcy Appellate Panel.On October 21, 1999, the BAP affirmed, ruling that Lindberg had been overruled by the enactment of the 1994 Code.SeeIn re Alexander,239 B.R. 911(8th Cir. BAP1999).Alexander took the case up again to the Eighth Circuit and, on January 8, 2001, the Eighth Circuit affirmed the Bankruptcy Court's decision, declaring Lindberg to be overruled by the new Code and, therefore, the date of the original petition controlled which property Alexander could claim as his homestead.SeeIn re Alexander,236 F.3d 431(8th Cir.2001).On February 13, 2001, the Eighth Circuit denied Alexander's motion to rehearthe caseen banc.

Meanwhile, while all this was going on in Alexander's case, Alexander's wife, Georgina Stephens, filed a separate Chapter 7 case on August 17, 1998, about a month after Alexander had filed his original petition.At that time, she was living at 875 Laurel Avenue with their minor son and Alexander was residing at the 175 North Lexington address.Ms. Stephens listed the 875 Laurel address as her address on her bankruptcy petition but she did not claim any ownership interest in the property nor did she claim any homestead exemption in her bankruptcy schedules.Rather, she listed a rent payment in the amount of $1,175 per month which she said was the result of an agreement between Alexander and her that she pay him rent while they were separated.She did not list an ownership interest in the residence because, although she and Alexander had lived there together for many years before the separation, he was the only one listed on the deed.Consequently, Ms. Stephens, who was represented by an attorney in her bankruptcy proceedings, did not believe she had any interest in the property.

However, apparently due to the difficulty he was having claiming a homestead exemption in the 875 Laurel property in his own bankruptcy proceedings, Alexander, pro se, filed an "Amended Schedule A & C to Correct Description of Realty Claimed Exempt" in his wife's case, crudely attempting to exempt the property on his own behalf as a "dependant" of Ms. Stephens.His is the only signature that appears on this document; Ms. Stephens did not sign the document purporting to amend her schedules, nor did her attorney.In addition, no one notified any of the creditors in Ms. Stephens' case of the "Amended Schedules" filed by Alexander in her case and so there were no objections made to Alexander's attempt to claim the homestead exemption in Ms. Stephens' case.Ms. Stephens received a discharge in her Chapter 7 case on November 18, 1998.

A few months thereafter, on June 7, 1999, Ms. Stephens filed a second bankruptcy petition, this time under Chapter 13.As she had done in her first case, Ms. Stephens, who was again represented by counsel, listed her address as 875 Laurel, but she again did not list any interest in the property, nor did she claim an exemption for it in her schedules.She again stated she was paying her husband rent in the amount of $1,175 per month and confirmed the rental arrangement in an e-mail to the Trustee herein dated August 9, 1999.

As he had attempted to do in Ms. Stephens' first case, on October 4, 1999, Alexander, pro se, filed another "Amended Schedule A & C to Correct Description of Realty Claimed Exempt" in Ms. Stephens' Chapter 13 case, again attempting to exempt the property on his own behalf as a "dependant" of his wife in her case.And again, no one notified the Chapter 13Trustee or the creditors and, as a result, there were no objections to Alexander's attempt to claim the homestead exemption in his wife's case.The Chapter 13Trustee in Ms. Stephens' case subsequently abandoned all property in her case, apparently unaware that Alexander was claiming an interest and exemption in the house on his wife's behalf in her case.Ultimately, Ms. Stephens voluntarily dismissed her Chapter 13 case in December 1999.

Subsequently, in February 2001, after the appeals were exhausted in Alexander's case and it had been finally determined that Alexander could not exempt the 875 Laurel property in his own bankruptcy case, the Trustee offered Alexander the opportunity to buy the property for the fair market value, advising Alexander and Stephens that if they did not purchase the property from the estate, they would need to vacate the premises so it could be sold for the benefit of the estate.Unable or unwilling to purchase the property from the Trustee and facing eviction, Alexander filed a pro se motion in the Bankruptcy Court seeking relief under Fed.R.Civ.P. 60(b) and 11 U.S.C. § 105.Among other things, Alexander asked the Bankruptcy Court to find that Ms. Stephens was entitled to claim an exemption in the 875 Laurel property as her homestead.The Bankruptcy Court denied the motion by Order dated April 17, 2001.This is the Order being appealed herein.

Meanwhile, shortly after the Bankruptcy Court denied the Rule 60(b) Motion, on April 30, 2001, Ms. Stephens, represented by counsel, commenced an action in the United States District Court for the District of Minnesota on her own behalf and the behalf of her minor son against the Trustee herein, claiming that she had exempted the 875 Laurel property as her homestead in her bankruptcy cases and that the Trustee's attempt to take possession of the property and liquidate it for the benefit of Alexander's bankruptcy estate violated the discharge injunction and automatic stay in her case, as well as her constitutional rights to her homestead under Minnesota law.In conjunction with this action in the District Court, Ms. Stephens filed a motion for temporary injunction seeking to enjoin the Trustee from evicting her and her son from the residence.That motion was heard by a magistrate judge on June 1, 2001, at which time the magistrate judge refused to grant the injunctive relief, indicating on the record that Ms. Stephens had not properly claimed the residence as her homestead in her bankruptcy cases and stating...