In re Hollar, Bankruptcy No. 2-86-05046

• Decision Date: 10 June 1987
• Docket Number: Bankruptcy No. 2-86-05046,SSAN(S): 302-36-3329.
• Citation: 79 BR 294
• Parties: In re Jacquelyn K. HOLLAR, Debtor.
• Court: U.S. Bankruptcy Court — Southern District of Ohio

79 B.R. 294 (1987)

In re Jacquelyn K. HOLLAR, Debtor.

Bankruptcy No. 2-86-05046, SSAN(S): 302-36-3329.

United States Bankruptcy Court, S.D. Ohio, E.D.

June 10, 1987.

Daniel F. Carmack, Columbus, Ohio, Trustee.

W. Ronald Beaver, Columbus, Ohio, for debtor.

ORDER SUSTAINING OBJECTION TO CLAIM OF EXEMPTION

BARBARA J. SELLERS, Bankruptcy Judge.

This matter is before the Court upon an objection to a homestead exemption asserted by debtor Jacquelyn K. Hollar. The objection, filed by Daniel F. Carmack, the duly-appointed trustee in this Chapter 7 bankruptcy case (the "Trustee"), was opposed by the debtor and was heard by the Court.

The Court finds the following facts. The debtor filed her voluntary petition under the provisions of Chapter 7 of the Bankruptcy Code on December 18, 1986. The petition and schedules showed her current address as 290 Emmit Avenue, Columbus, Ohio, and indicated ownership of that property as the debtor's only interest in real property. In the B-4 schedule the debtor asserted entitlement to an exemption in that property in the amount of $5,400 pursuant to the homestead and miscellaneous property exemptions set forth in Ohio Rev. Code § 2329.66(A)(1) & (17), available for residents of Ohio in bankruptcy proceedings by 11 U.S.C. § 522(b)(2).

On January 28, 1987, subsequent to his examination of the debtor at the meeting of creditors, the Trustee formally objected to the exemption asserted for the Emmit Avenue property on the basis that the debtor was not living in that property when her bankruptcy case was filed. The debtor opposed that objection by a pleading which, while curiously referring only to property located at 14819 Crownover Mill Road in New Holland, Ohio, asserted that the exemption available to her for homestead property was not necessarily limited to property in which she resided at the time her case was filed so long as the property claimed as exempt was a "residence", as that term is defined by Ohio law. On March 23, 1987 the debtor amended her B-1 schedule of assets to indicate ownership of the Crownover Mill Road property. Shortly thereafter the Trustee sought authorization from the Court to attempt to sell that property.

At the hearing before the Court the parties agreed that the Crownover Mill Road property was the only real estate owned by the debtor and was the only real property for which an exemption was intended to be asserted. It was also agreed that the Emmit Avenue property was a dwelling into which the debtor had moved shortly before filing her bankruptcy petition. The Trustee requested the Court to take judicial notice of the fact that the debtor's address, as shown on the petition, was not the Crownover Mill Road property for which the exemption was sought. Following that request, the parties agreed that the debtor was not actually living in the Crownover Mill Road property when the bankruptcy was filed and that the dispute as to the propriety of the asserted homestead exemption related only to the Crownover Mill Road property. Neither the Trustee, acting as his own attorney, nor the debtor's attorney called any witnesses at the hearing.

The issue before the Court is the...