KSB

Judge Karlin

BAP NO-11-023 In Re Willcut - Document Text

FILED

U.S. Bankruptcy Appellate Panel
of the Tenth Circuit
May 29, 2012
Blaine F. Bates

Clerk

PUBLISH

UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE TENTH CIRCUIT

IN RE RICKY ALAN WILLCUT,
formerly doing business as WillcutProperties, LLC, formerly doingbusiness as Horner Development, LLC,
formerly doing business as DebonaireFarms LLC, and TERRI ANNWILLCUT,

Debtors.

STEVEN W. SOULÉ, Trustee,
Appellant,

v.
RICKY ALAN WILLCUT, TERRIANN WILLCUT, ONB BANK ANDTRUST COMPANY, and UNITEDSTATES TRUSTEE,

Appellees.

BAP No. NO-11-023

Bankr. No. 10-12802
Chapter 7

OPINION

Appeal from the United States Bankruptcy Courtfor the Northern District of Oklahoma

Submitted on the briefs:*

Steven W. Soulé, pro se (Jean Carlos López of Hall, Estill, Hardwick, Gable,
Golden & Nelson, P.C., Tulsa, Oklahoma, with him on the brief).

Todd Maxwell Henshaw of James, Potts & Wulfers, Inc., Tulsa, Oklahoma, forAppellees Ricky Alan Willcut and Terri Ann Willcut.

* The parties did not request oral argument, and after examining the briefs
and appellate record, the Court has determined unanimously that oral argumentwould not materially assist in the determination of this appeal. See Fed. R.
Bankr. P. 8012. The case is therefore ordered submitted without oral argument.

Before NUGENT, KARLIN, and ROMERO, Bankruptcy Judges.

KARLIN, Bankruptcy Judge.

This appeal is from a bankruptcy court order overruling the Trustee’s
objection to the Debtors’ homestead exemption under 11 U.S.C. § 522(o)(4).
Under § 522, a debtor can exempt certain property and protect that property from
execution by a bankruptcy trustee. Section 522(o)(4) limits the homestead
exemption to the extent of any value attributable to fraudulent conversion of nonexempt
assets within ten years of filing bankruptcy. The statute reads:

[T]he value of an interest in . . . real or personal property that thedebtor . . . claims as a homestead . . . shall be reduced to the extent
that such value is attributable to any portion of any property that thedebtor disposed of in the 10-year period ending on the date of thefiling of the petition with the intent to hinder, delay, or defraud acreditor and that the debtor could not exempt, or that portion that thedebtor could not exempt, under subsection (b), if on such date thedebtor had held the property so disposed of.1

The central issue in this appeal is the definition of the phrase “value of an interest
in . . . real [] property.”

We affirm the order overruling the Trustee’s objection because we, like the
bankruptcy court, interpret the phrase “value of an interest in . . . real [] property”
as the measure of the increase in monetary value of the economic interest in real
property claimed as a homestead due to a fraudulent transfer of non-exempt funds
into the property, rather than a title interpretation of the word “interest.”

I. Background Facts and Procedural History
In August, 2010, Appellee/Debtors Ricky Alan Willcut and Terri Ann
Willcut (the “Debtors”) filed a Chapter 7 bankruptcy petition, claiming their

11 U.S.C. § 522(o)(4).

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home as exempt under Oklahoma’s homestead exemption. 2 They valued their

home at $600,000 in their schedules, and noted it was encumbered by a $415,000

secured claim. The Debtors’ petition also disclosed that they sold some items of

real and personal property at auction prior to bankruptcy.

The Trustee filed an objection to the Debtors’ claim of exemption, arguing

that it should be reduced pursuant to § 522(o)(4). The Trustee alleged the

Debtors had applied approximately $100,000 received as proceeds from the

auction of non-exempt property toward the purchase of the home, and that the

conversion of non-exempt assets to exempt assets was an attempt by Debtors to

defraud their creditors.

After an evidentiary hearing, the bankruptcy court overruled the Trustee’s

objection to exemption. The bankruptcy court found: (1) the home had a fair

3

market value of $425,000; (2) the scheduled valuation by Debtors of $600,000

for the property should be given no weight;4 and (3) there was “no realizable

2 Oklahoma is an opt-out state. Okla. Stat. tit. 31, § 1(B) (2005). The
Oklahoma homestead exemption is unlimited in value, and includes up to 160acres of land outside, or up to 1 acre inside, a city or town. Okla. Stat. tit. 31,
§ 1(A) (2005); Okla Stat. tit. 31 § 2 (1997). In contrast to this generoushomestead exemption, the federal homestead exemption is limited to $21,625 invalue in property used as a residence. 11 U.S.C. § 522(d)(1).

3 Regarding this value, the bankruptcy court stated: “The Court finds as a
matter of fact that the [home] has a fair market value of $425,000. The Court’s
conclusion as to value is based upon the October 15, 2010 appraisal report ofChris Bauer, a residential appraiser certified by the State of Oklahoma. The
report was admitted into evidence [as] Exhibit 3. This exhibit was a joint exhibitoffered by all parties at the evidentiary hearing and it was received withoutobjection.” Apr. 27, 2011, Transcript at 8, ll. 3-10, in Aplt. App’x at 497.

4 Regarding this value, the bankruptcy court stated: “The only other
evidence as to the value of the [home] was the statement by the Debtors in theirschedules that the value . . . was $600,000. In his testimony to the Court, Mr.
Willcut testified without contradiction or objection that this value was based uponthe replacement cost of the [home], as established by the homeowners’ insurance
company. The Court finds Mr. Willcut’s testimony to be credible in this regardand, therefore, gives the scheduled valuation of $600,000 no weight.” Id. at 8, ll.
11-20, in Aplt. App’x at 497.

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equity in the [home]” 5 in light of the $415,000 mortgage on the property. 6 The
bankruptcy court then concluded that “in order for a party to prevail on an
objection to exemption under Section 522(o)[,] the party must prove by a
preponderance of the evidence that the debtor has equity. . ., an economic interest
that, if liquidated, would result in the generation of funds in excess of the amount
of debt secured by liens upon the property.” 7 Because there was no equity in the
property, the bankruptcy court overruled the Trustee’s objection to exemption.
The bankruptcy court additionally found that because there was no realizable
equity in the property, the objection to exemption was effectively moot.8

II. Jurisdiction and Standard of Review
This Court has jurisdiction to hear timely filed appeals from “final
judgments, orders, and decrees” of bankruptcy courts within the Tenth Circuit,
unless one of the parties elects to have the district court hear the appeal. 9 The
Trustee timely appealed the final decision,10 and the bankruptcy court’s order
overruling the Trustee’s objection to exemption is an appealable final order.11
Neither party has elected to have the district court hear this appeal, and this
Court, therefore, has appellate jurisdiction.

bankruptcy court stated that even if it did disallow the exemption, there would be

5 Id. at 11, l. 10, in Aplt. App’x at 500.
6 Id. at 7, ll. 11-15, in Aplt. App’x at 496.
7 Id. at 14-15, ll. 25, 1-6, in Aplt. App’x at 503–04.
8 Id. at 15, ll. 8-22, in Aplt. App’x at 504. In support of this conclusion, the

no economic benefit to the estate, and that the property “is not worth enough tojustify any efforts made to sell it.” Id. at 15-16, ll. 23-25, 1-2, in Aplt. App’x at
504-05.

9 28 U.S.C. § 158(a)(1), (b)(1), and (c)(1); Fed. R. Bankr. P. 8002; 10th Cir.
BAP L.R. 8001-3.
10 Apr. 27, 2011, Order at Docket Entry 95, in Aplt. App’x at 508.
11 In re Carlson, 303 B.R. 478, 480 (10th Cir. BAP 2004).
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The BAP reviews the bankruptcy court’s legal conclusions de novo and its
findings of fact under the “clearly erroneous” standard of review.12

III.
Discussion
A.
Burden of proof.
The Trustee, as the party objecting to the Debtors’ homestead exemption,
bears the burden of proof on his objection.13

B.
The word “interest” in § 522(o)(4) refers to the Debtors’economic equity in the property, not title.
As noted, the main issue on appeal is the bankruptcy court’s interpretation
of § 522(o)(4), and, more particularly, the use of the word “interest” in that
section. Under § 522(o)(4), “the value of [the Debtors’] interest in” the property
“shall be reduced to the extent that such value is attributable to any portion of any
[non-exempt] property that the debtor disposed of in the 10-year period”
preceding the bankruptcy petition, when the debtor has “the intent to hinder,
delay, or defraud a creditor.” In overruling the Trustee’s objection to exemption,
the bankruptcy court focused on the “value of an interest in” language, and the
potential mootness that language caused. We do the same.

The Trustee argues that this section of the Bankruptcy Code requires that a
debtor’s homestead exemption be reduced by the amount applied to that
homestead that was derived from a fraudulent transfer of non-exempt property,
regardless whether the debtor can repay this amount to creditors by drawing upon
the value of the homestead. The Debtors argue that the phrase “value of an
interest in” refers only to the increase in the economic equity in the real property,
not the holding of title to the property, and that the bankruptcy court was limited

12
In re Robinson, 295 B.R. 147, 149 (10th Cir. BAP 2003).

13 In re Hall, 441 B.R. 680, 685 (10th Cir. BAP 2009) (“The Trustee, as the
party objecting to the exemption, bears the burden of proof to show theimpropriety of the exemption by a preponderance of the evidence.”).

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to reducing the value of any equitable increase of a debtor’s interest in their
homestead attributable to the wrongful investment of proceeds of non-exempt
property. The Trustee counters that the appropriate remedy, when there is no
equity in § 522(o)(4) property, is to give the Trustee an equitable lien on the
debtor’s homestead.

As always, the starting point in any case of statutory construction is to look
to the language of the statute itself. 14 When interpreting statutory language, the
court must look to the particular statutory language at issue, as well as the
language and design of the statute as a whole.” 15 The word “interest” is not
defined in the Bankruptcy Code. However, words in statutes should be given
their common, ordinary meaning. 16 According to Black’s Law Dictionary, an
interest is “[a] legal share in something; all or part of a legal or equitable claim to
or right in property.” 17 According to this definition of “interest,” the phrase could
refer to either legal title or an economic equity interest.

Because we find no help in the dictionary definition, we next look to the
language of § 522 as a whole, and other uses of the word “interest” within that
statute. As the Supreme Court has noted:

The definition of words in isolation, however, is not necessarily

controlling in statutory construction. A word in a statute may or may

not extend to the outer limits of its definitional possibilities.

Interpretation of a word or phrase depends upon reading the whole

statutory text, considering the purpose and context of the statute, and

14 In re Overland Park Fin. Corp., 236 F.3d 1246, 1251 (10th Cir. 2001) (“In
any case of statutory construction, the starting point of our analysis must beginwith the language of the statute itself.”).

15 Id. at 1252 (internal quotation marks omitted).

16 Id. (“The meaning of the words in the statute must be construed in their
ordinary, everyday sense.”) (internal quotation marks omitted).

17 Black’s Law Dictionary (9th ed. 2009).

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consulting any precedents or authorities that inform the analysis.18
The context of the disputed phrase is, thus, important.

Section 522(o) was added to the Bankruptcy Code under the Bankruptcy
Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). At the
same time that § 522(o) was added by BAPCPA, subsection (p) to § 522 was also
added. Section 522(p) is an additional limitation on homestead exemptions in
states, like Oklahoma, with unlimited homestead exemptions. Under
§ 522(p)—the neighboring provision to § 522(o)—a debtor is prohibited from
exempting “any amount of interest that was acquired by the debtor during the
1215-day period preceding the date of the filing of the petition that exceeds in the
aggregate [$146,450] in value.”

The word “interest” is used within both § 522(o) and §522(p). The words
used within a statute should be interpreted consistently, and it is presumed that
“identical words used in different parts of the same act [were] intended to have
the same meaning.” 19 The full reach of § 522(p) is best evaluated by quoting its
relevant provisions:

(1) a debtor may not exempt any amount of interest that was
acquired by the debtor during the 1215-day period preceding the dateof the filing of the petition that exceeds in the aggregate $146,450 in
value in–
...

(D) real or personal property that the debtor or dependent ofthe debtor claims as a homestead.
(2) . . .
(B) For purposes of paragraph (1), any amount of such interest
does not include any interest transferred from a debtor’s previousprincipal residence (which was acquired prior to the beginning of
18 Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006).

19 Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 292 (1993)
(internal quotations omitted); Lippoldt v. Cole, 468 F.3d 1204, 1213 (10th Cir.
2006) (holding there is a presumption that identical words used in different partof the same act are intended to have the same meaning).

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such 1215-day period) into the debtor’s current principal residence, if

the debtor’s previous and current residences are located in the same

State.20
In this neighboring provision, when the term “interest” is used, the statute appears
to refer to equity, not title. For example, in § 522(p)(2)(B),the Code limits the
reach of the § 522(p)(1) limitation on the homestead exemption, and refers to
“any amount of such interest” in the homestead. This reference would be
nonsensical if the word “title” were inserted rather than “equity.” In addition,
§ 522(p)(1) uses the phrases/words “any amount of interest,” “acquired” and “in
the aggregate,” which all lend themselves more readily to a monetary
interpretation of the word “interest.”

The addition of § 522(o) to the Bankruptcy Code was “intended to strike a
balance between the rights of debtors and creditors in states with unlimited
homestead exemptions . . . and to make clear that abusive pre-bankruptcy
planning will not be tolerated at the expense of creditors.” 21 However, even after
BAPCPA’s amendments, “[s]ection 522 continues to adopt the position favorably
viewed by the Code drafters that the mere conversion of nonexempt property into
exempt property, without fraudulent intent, does not deprive the debtor of
exemption rights in the converted property.” 22 Ultimately, it appears that the
purpose of adding § 522(o) and § 522(p) in 2005 was the attempt by Congress to
address the pre-BAPCPA “mansion loophole”23 and to limit the value of

20 11 U.S.C. § 522(p) (emphasis added).

21 In re Cipolla, No. 11-50391, 2012 WL 1003555, at *2 (5th Cir. Mar. 26,
2012) (internal quotation marks omitted).

22 4 Collier on Bankruptcy ¶ 522.08[5] (Alan N. Resnick & Henry J. Sommer
eds., 16th ed.).

23 See In re Greene, 583 F.3d 614, 624 (9th Cir. 2009) (“Section 522(p) was
intended to address the well-documented and often-expressed concern bymembers of Congress about the so-called ‘mansion loophole’ by which wealthyindividuals could shield millions of dollars from creditors by filing bankruptcy

(continued...)

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homestead exemptions when there is fraud. 24 This lends support to our
interpretation of § 522(o)—that the statute was enacted to prevent the fraudulent
attempt to build up equity in a homestead.

In support of his position, the Trustee cites to the House Report prepared
for BAPCPA, and specifically a portion of a sentence within that report, found in
the section titled “Highlights of Bankruptcy Reforms” and subtitled “Consumer
Credit Bankruptcy Protections.” One portion states: “To the extent a debtor’s
homestead exemption was obtained through the fraudulent conversion of
nonexempt assets (e.g., cash) during the ten-year period preceding the filing of
the bankruptcy case, S. 256 requires such exemption to be reduced by the amount
attributable to the debtor’s fraud.” 25 The Trustee argues this sentence lends
support to his title theory, based on the language that an exemption should be
reduced by the amount of the cash payment.

But it is difficult to reconcile this quoted portion, however, with the actual
text of the statute as enacted. The actual text of the statute provides that it is the
“value of an interest” that the debtor claims as a homestead that should be
reduced. 26 We are not swayed by the Trustee’s argument, and give effect to the
text of the statute, which must necessarily control over ambiguous legislative

23 (...continued)
after converting nonexempt assets into expensive and exempt homesteads in one
of the handful of states with unlimited homestead exemptions.” Id. at 619
(internal quotation marks omitted)).


24 Compare Parks v. Anderson, 406 B.R. 79, 91 n.44 (D. Kan. 2009), with
Venn v. Reinhard (In re Reinhard), 377 B.R. 315, 320 (Bankr. N.D. Fla. 2007)
(discussing legislative intent of BAPCPA additions and the different
interpretations given to the Congressional purpose in closing the “mansion
loophole”).


25 H.R. Rep. No. 109-31 pt. 1, at 16 (2005), reprinted in 2005 U.S.C.C.A.N.
88, 102.


26 11 U.S.C. § 522(o) (emphasis added).

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history.27

Focusing again on the language of § 522(o)(4), the most persuasive

interpretation of the statute is that the phrase “value of an interest in . . . real []

property” refers to increased economic equity in real property due to a fraudulent

transfer of non-exempt funds into the property, rather than a title interpretation of

the phrase. The subsection refers to “the value of an interest,” which implies a

monetary interest—equity, not title. The statute also refers to the value being

reduced to the extent “such value is attributable” to a non-exempt conversion.

Again, this implies an equity consideration. In addition, as a practical matter,

there is no way to reduce the value of a person’s legal title in a piece of property

when that property is fully encumbered.

A few appellate and bankruptcy courts have considered the definition of

“interest” in § 522. Some have adopted the title definition, in § 522(p) contexts.28

Some have adopted the equity definition when interpreting both § 522(o) and

§ 522(p). 29 Others have been able to render a decision without requiring a

27 St. Charles Inv. Co. v. Comm’r of Internal Revenue, 232 F.3d 773, 776
(10th Cir. 2000) (“[L]egislative history may not be used to create ambiguity in thestatutory language. . . We do not inquire what the legislature meant; we ask onlywhat the statute means.” (citation and internal quotation marks omitted)). In
addition, the court in Parks v. Anderson, 406 B.R. at 91 n.44, noted that portionsof the legislative history concerning the pertinent subsections could also supportthe contrary argument.

28 See, e.g., In re Greene, 583 F.3d at 624-25 (concluding that filing a
homestead claim for an underlying property interest does not fall within § 522(p)
because a homestead claim is not an ownership interest); In re Aroesty, 385 B.R.
1, 7 (1st Cir. BAP 2008) (holding that a debtor who previously held a beneficialinterest in real property held in trust acquired an “interest” under § 522(p) whenrecord title was received to the trust); In re Sainlar, 344 B.R. 669, 673 (Bankr.

M.D. Fla. 2006) (concluding that the term “interest” in § 522(p) means titleinterest because the phrase “interest that was acquired” implies actively acquiringtitle to property); In re Blair, 334 B.R. 374, 376-77 (Bankr. N.D. Tex. 2005)
(concluding that the plain meaning of “interest” in real property under § 522(p) isthe title to a home because “one does not actually ‘acquire’ equity in a home”).
29 See, e.g., In re Presto, 376 B.R. 554, 572 (Bankr. S.D. Tex. 2007) (“The
[objecting party] bears the burden of establishing a current market value in excess
(continued...)

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decision on this precise issue.30

We find persuasive the analysis in Parks v. Anderson,31 where the District

Court for the District of Kansas found the term “interest” to mean “equity” in

both subsections (o) and (p) of § 522. The Anderson case originated from a

trustee challenge to the debtor’s homestead exemption under both § 522(o) and

§ 522(p). In that case, the debtor’s homestead was valued between $411,800 and

$636,000, with a $172,380 mortgage. The bankruptcy court was asked to

interpret the word “interest” as used in § 522(p), and in doing so referenced

§ 522(o). 32 The bankruptcy court concluded that while the term “interest” may

mean equity in § 522(o), the word meant title or ownership in § 522(p).

The district court reversed the bankruptcy court’s interpretation of the term

29 (...continued)
of the $521,800.00 purchase price in order to show by what amount the
improvements made by the Debtor actually increased the value of the Royal Rose
Property.”); Venn, 377 B.R. at 320 (deciding that “interest” refers to equity and
not ownership under § 522(p)); In re Rasmussen, 349 B.R. 747, 756 (Bankr. M.D.
Fla. 2006) (interpreting “interest” to mean acquisition of equity under § 522(p)).


30 See, e.g., In re Fehmel, 372 F. App’x 507, 511-12 (5th Cir. 2010)
(concluding that under either definition of “interest,” the debtors failed to show
that exemption was properly claimed under § 522(p)); In re Rogers, 513 F.3d 212,
222-23 (5th Cir. 2008) (discussing the title versus equity debate on the definition
of interest and implying, but not deciding, that interest refers to equity in
§ 522(p)); In re Khan, 375 B.R. 5, 11-13 (1st Cir. BAP 2007) (implying that
“interest” means ownership under § 522(p), but not deciding issue because debtor
failed to present any evidence of his ownership interest); Turner v. Keck (In re
Keck), 363 B.R. 193, 212 (Bankr. D. Kan. 2007) (granting equitable lien on
homestead under § 522(o) in amount of non-exempt assets converted to cash and
used to increase value of homestead where homestead was valued at $90,000,
with no secured or tax claims against it).


31 406 B.R. 79 (D. Kan. 2009).

32 In re Anderson, 374 B.R. 848 (Bankr. D. Kan. 2007). Ironically, and
contrary to the facts of this appeal, the trustee in Anderson argued the term“interest” to be defined as “equity in the homestead,” whereas the debtorpreferred the term to mean “title or ownership.” The positions are switched inthis appeal, because the benefit to the parties if their current preferred definitionis adopted is switched.

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“interest” within § 522(p). 33 The court concluded that if Congress intended
§ 522(p) be restricted to title interest, then it would not have included the words
“any amount of” before the word interest, which implies a value determination.34
In addition, the court noted that the use of the phrase “interest acquired” in
§ 522(p) was not determinative of the interpretation, because a debtor could
acquire equity in property just like title may be acquired.35

The District Court also concluded that subsections (1) and (2) of § 522(p)
must be read consistently, and a title definition in § 522(p)(2) would render
incomprehensible that subsection’s provision for “any interest transferred” from
the debtor’s previous principal residence into a current residence if both
properties are located within the same state. 36 The court noted: “a person does
not transfer title from one residence to another, but instead, transfers equity.”37
Finally, the court assessed the interplay between § 522(o) and § 522(p):

. . . § 522(p) permits a debtor to transfer non-exempt assets into a

homestead during the 1,215-day period if . . . the transfer, in the

aggregate, is less than [$146,450]. Section 522(o) provides that a

transfer of any amount “shall be reduced to the extent that such value

is attributable to any portion of any property that the debtor disposed

of in the 10–year period ending on the date of the filing of the

petition with the intent to hinder, delay, or defraud a creditor. . . .”

To impose § 522(o) upon a debtor requires a showing of actual intent

of the debtor to hinder or defraud. Absent actual intent to hinder or

defraud, a debtor transferring non-exempt assets to an exempt asset

during the 1,215-day period is protected up to [$146,450].

Therefore, we find no conflict between § 522(o) and § 522(p) in

applying an “equity” definition to the term “interest.”38

The court concluded the word “interest” within § 522(p) “refers to equity

33 Anderson, 406 B.R. at 95.
34 Id. at 94.
35 Id.
36 Id.
37 Id.
38 Id. at 95 (footnotes omitted).
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acquired by a debtor.” Likewise, we conclude the similar use of the word
“interest” in § 522(o)(4) refers to a debtor’s economic equity in the real or
personal property used as a residence.

The Trustee also argues that the bankruptcy court impermissibly inserted an
element into § 522(o)(4) that is not actually contained in the statute by requiring
him to show realizable equity in the property for the section to apply. To the
contrary, the bankruptcy court did not require a new element. It simply
interpreted the statute’s language. The statute is clear that the Trustee must carry
his burden to show how the “value of [the] interest in” the property should “be
reduced,” and this was necessary to the ultimate resolution of the objection to
exemption. The phrase “the value of an interest in . . . real [] property . . . shall
be reduced” means that the equity in the real property obtained through fraudulent
transfer of non-exempt assets into exempt assets is to be reduced. If there is no
equity, there is no value subject to reduction.

C.
The bankruptcy court did not clearly err in its factual findingthat the property was appropriately valued at $425,000.
The Trustee next challenges the bankruptcy court’s factual finding that the
Debtors had no realizable interest in the property. The Trustee argues that the
Debtors are judicially estopped from asserting a valuation different than they
claimed in their sworn schedules.

First, however, the Trustee did not argue judicial estoppel before the
bankruptcy court. 39 “It is well settled that an appellate court will not entertain an

The Trustee, in his reply, argues that he did raise the judicial estoppel
argument in the bankruptcy court and cites three record instances in support.
Reply Brief at 12 n.1. Upon closer examination, however, these record cites arenot judicial estoppel arguments, but are simply instances where the Trusteereferred the court to the fact that the Debtors valued the property at $600,000 intheir schedules. See Aplt. App’x at 120 (transcript of evidentiary hearing whereDebtor Ricky Alan Willcut states that the property was scheduled at $600,000);
Aplt. App’x at 142 (transcript of evidentiary hearing where Debtor Ricky AlanWillcut states that the value of the property was listed as $600,000 because that

(continued...)

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issue that was not first presented to the trial court.” 40 Second, even if the Trustee
had so argued, the bankruptcy court made a credibility determination when it
found that the Debtors honestly, but erroneously, relied on their homeowners’
insurance replacement value of the property when completing their bankruptcy
schedules. Further, the only other evidence offered to the bankruptcy court was
the certified appraisal report valuing the property at $425,000, an appraisal the
parties jointly offered into evidence, and which was admitted without objection
by the Trustee. The Trustee elected not to offer expert testimony of a higher
value. As a result, no evidentiary basis exists to conclude that the bankruptcy
court was clearly erroneous in its factual findings.

IV. Conclusion
We conclude that the phrase “the value of an interest in . . . real [] property
. . . shall be reduced” in 11 U.S.C. § 522(o) means that the equity in a debtor’s
home that was obtained through fraudulent transfer of non-exempt assets into
exempt assets is to be reduced. If there is no equity, there is no value subject to
reduction. Accordingly, we affirm the bankruptcy court’s conclusions of law on
this basis. We additionally affirm the bankruptcy court’s factual finding that the
property had no realizable equity, based on the only evidence presented and on
the credibility determinations made therein. We affirm the decision of the
bankruptcy court overruling the Trustee’s objection to the Debtors’ homestead
exemption.

39 (...continued)
was the replacement value given by the insurance company and the Debtors didnot want to pay for an appraisal); and Aplt. App’x at 457 n.3 (Trustee’s post-trialbrief noting that the property was valued at $600,000 in schedules and that theDebtors had not amended their schedules even though they now submitted a lowerappraisal—arguing this lower value was evidence of bad faith).

40 In re Crowder, 314 B.R. 445, 449 (10th Cir. BAP 2004).

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