Matter of Cottingim, Bankruptcy No. 3-80-00320.
| Decision Date | 28 October 1980 |
| Docket Number | Bankruptcy No. 3-80-00320. |
| Citation | 7 BR 56 |
| Parties | In the Matter of Ray COTTINGIM and Kathy Cottingim, Debtors. |
| Court | U.S. Bankruptcy Court — Southern District of Ohio |
FACT DETERMINATION
Debtors, Ray Cottingim and Kathy Cottingim, husband and wife, filed a voluntary petition in bankruptcy on 14 February, 1980. The schedules list real estate (in addition to personalty valued at $5,250.00), as follows:
"Land # 1260, Bldg. # 1240 Co. No. # 68 Lot No. # 5, Note: House is burnt unhabitable" sic
Under the scheduled property claimed as exempt is listed, "House 2329.66 A-1 $1,000.00". Under the scheduled creditors holding security is listed, "Margarett Cottingim House (Burnt-unhabited)" sic.
In 25 April, 1980 Debtors filed an amendment to their schedules, setting forth a proper legal description to the real estate, being a town lot in the town of Crawfordsville, Preble County, Ohio, showing a valuation of $10,000.00.
On 28 April, 1980, Thomas R. Noland, Trustee in Bankruptcy, filed an objection to the claimed real estate exemption on the basis, "that Debtors testified at the first meeting that the real estate, at the date of filing was not their principal residence and therefore no entitlement to claim the O.R.C. 2329.66(A)(1) exemption exists against the realty . . ."
The evidence as submitted and the facts necessary for a judicial determination of the issue at best are only sketchy. There is no question that the house on the premises severely burned about two months before this case was instituted and that the Debtors had never resided there. There seems to have existed some vague purpose in trying to rebuild the house for occupancy at some future date, although there is no evidence that any serious attempt has ever been made to accomplish this purpose.
Within rule, the Trustee in Bankruptcy on 18 September, 1980, filed a Brief addressing the legal issues. However, no brief or citation of legal authorities was filed in behalf of Debtors, as requested.
In light of the principles and precedents cited by the Trustee, he would have been derelict in his fiduciary duties not to have objected to the claimed exemption.
OPINIONCiting the exact wording of Ohio Revised Code Section 2329.66(A)(1), the Trustee draws attention to the phrase that the exemption can only be claimed "in one parcel or item of real or personal property that the person or dependent of the person uses as a residence." emphasis added
The decision In re Paul Velez-Velez, 6 B.R. 373, Collier Bankruptcy Cases, No. 80-00032-BKC-TCB, Page 822 (S.D.Fla.1980) is cited, wherein the Court found (under the wording of the Bankruptcy Code) that a homestead could not be allowed in Puerto Rico real estate because the debtor resided in Florida and occupied Florida real estate. Also cited in behalf of the Trustee was In re Crum, 221 Fed. 729, 14 O.L.R. 121, for the principle that the date of filing the bankruptcy petition is the cleavage date. No other authorities were cited in behalf of the Trustee.
No elaborate citation of authorities is necessary to support the truism that any determination of exempt property is a question of State law, as Ohio opted out of the federal exemptions. We note, nevertheless, that the state statute in question (O.R.C. § 2329.66(A)(1)) tracks the wording of the federal statute (11 U.S.C. § 522(d)(1)) and that the main difference in the statutes is a reduction of the exemption from $7,500.00 in value to $5,000.00 in value.
The leading pronouncement by the Supreme Court of Ohio bearing on the issue sub judice may be found in Mutual Bldg. & Loan Company v. Efros (1949) 152 Ohio St. 369, 89 N.E.2d 648. The Ohio statute (§ 11663-1 G.C.) there at issue provided in pertinent part that the exemption applied to ". . . real property or any interest therein, upon which real property there has been located a dwelling or dwellings for not more than two families which has been used in whole or in part as a home or farm dwelling or...
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