Matter of Ament, Bankruptcy No. 85-386

• Decision Date: 27 August 1987
• Docket Number: Bankruptcy No. 85-386,Adv. No. 86-34.
• Citation: 77 BR 439
• Parties: In the Matter of Susan E. AMENT, Debtor. Stephen W. SPENCE, Trustee, Plaintiff, v. Susan E. AMENT, David H. Ament, Defendants.
• Court: U.S. Bankruptcy Court — District of Delaware

77 B.R. 439 (1987)

In the Matter of Susan E. AMENT, Debtor Stephen W. SPENCE, Trustee, Plaintiff, v. Susan E. AMENT, David H. Ament, Defendants.

Bankruptcy No. 85-386, Adv. No. 86-34.

United States Bankruptcy Court, D. Delaware.

August 27, 1987.

Stephen W. Spence, Wilmington, Del., Trustee.

Sheryl Rush-Milstead, Wilmington, Del., for defendant David H. Ament.

John M. Willard, Wilmington, Del., for debtor/defendant.

MEMORANDUM OPINION AND ORDER

HELEN S. BALICK, Bankruptcy Judge.

This matter is before the court on the trustee's complaint against Susan Ament to vacate property at 37 Dorsey Lane, Bear, Delaware. The trustee also asks that Susan's claimed exemptions be reduced by $3,600 to compensate the bankruptcy estate for rental for the time she remained in the property after filing her petition. Subsequent to the filing of the trustee's complaint, David Ament, Susan's former husband, filed a bankruptcy case and intervened in this adversary proceeding. Each of the Aments has claimed the equity in the property as part of their exemptions; specifically, Susan claimed $4,850 and David claimed $4,700. A hearing on this matter was held February 20, 1987 and counsel have submitted post-trial memoranda.

The property, held by the Aments as tenants in common by virtue of their divorce, sold for $66,000. At the time of trial, the trustee had in his possession $4,728.03. He had already advanced $1,250 to Susan on account of her claimed exemptions and had paid $100 to have the property cleaned and $100 for the trustee's bond premium. The proceeds from sale of the property were therefore $6,178.03. This amount is computed as follows:

                Amount in Trustee's Possession as of
                 Trial Date                                 $4,728.03
                Advancement to Susan Ament                   1,250.00
                Cleaning of Property                           100.00
                Bond Premium                                   100.00
                                                            _________
                Total Proceeds from Sale                    $6,178.03
                

Susan remained in the property after filing her petition on October 11, 1985 until it was sold on or about July 30, 1986. Her stay has raised two issues in this case. First, the trustee contends that Susan should pay $3,600 to the estate for rental of the property during the nine months she stayed there. This amount represents $400 per month which is approximately equivalent to the amount of interest accruing on two mortgages against the property. Second, Susan claims she is entitled to be reimbursed for the following expenses she incurred during her stay:

                Electric                      — $80 per month
                                                October 1985 until
                                                 February 1986
                Electric                      — $170 per month
                                                 February 1986 until
                                                   August 1986
                Telephone                     — $15 per month
                                                 October 1985 until August
                                                  1986
                Kerosene                       — $30 per week
                                                12 weeks
                Replace Heat Pump              — $900
                Clean Smoke Damage             — $90
                Repainting                     — $70
                

Looking first to Susan's expenses, the court finds that the electric, telephone and kerosene expenditures are ordinary living expenses and should not be charged against the estate. On the other hand, replacement of the heat pump, cleaning smoke damage and repainting improve the property and should be chargeable to the estate. Susan therefore is entitled to receive $1,060 from the estate as reimbursement for those expenditures.

With regard to the trustee's claim for rent, Susan had use of the property for nine months although no specific details of that use were agreed upon by the parties. It was not determined until the § 341 meeting that there was equity in the property. Susan was given one month to attempt a private sale. Thereafter, the trustee was to list the property for sale...