- Category: Judge Somers
- Published: 13 January 2012
- Written by Judge Somers
In Re Townsend, 10-14167 (Bankr. D. Kan. Jan. 12, 2012) Doc. # 53
SIGNED this 12th day of January, 2012.
Opinion Designated for Electronic Use, But Not for Print Publication
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF KANSAS
PATRICK E. TOWNSEND, CASE NO. 10-14167
EMILY S. TOWNSEND, CHAPTER 7
OPINION DENYING THE TRUSTEE’S OBJECTION TO THE
DEBTORS’ CLAIM OF EXEMPTIONS UNDER 11 U.S.C.A. § 522(d)
This matter is before the Court on the Chapter 7 Trustee’s objection to the
Debtors’ assertion they are eligible to claim the federal exemptions provided by 11
U.S.C.A. § 522(d). Trustee J. Michael Morris appears as his own attorney. The Debtors
appear by counsel Dana Manweiler Milby. The Court has reviewed the relevant materials
and is now ready to rule.
Case 10-14167 Doc# 53 Filed 01/12/12 Page 1 of 15
1. Stipulated facts.
The parties stipulated to the following facts. When the Debtors filed for
bankruptcy on December 14, 2010, they “resided” in Bel Aire, Kansas, and had done so
since March 2010. They had a prior “residence” in Arkansas City, Kansas, from October
2009 to March 2010. Before that, they had a “residence” in Newkirk, Oklahoma, from
March 2008 to October 2009. Before that, they had another “residence” in Arkansas
City, Kansas, from October 2007 to March 2008. The parties did not specify what they
meant by either “resided” or “residence.”
2. Interpretation of stipulated facts.
When the Debtors filed for bankruptcy, they had been “residents” of Kansas for
approximately 15 months, and had been “residents” of Oklahoma for approximately 19 to
20 months before that. December 14, 2008, was approximately 730 days before the
Debtors filed their bankruptcy petition. June 17, 2008, was approximately 180 days prior
to December 14, 2008. There is no dispute that the Debtors lived in both Kansas and
Oklahoma during the 730 days before they filed their bankruptcy petition, and lived in
Oklahoma for all of the 180 days before that 730-day period.
3. Facts drawn from the Court file for this case.
In their original bankruptcy schedules, on Schedule C — Property Claimed as
Exempt, the Debtors did not claim exemptions under either Kansas or Oklahoma law, but
instead claimed those provided by § 522(d) of the Bankruptcy Code. Although the
Debtors gave a Kansas address as their residence on their bankruptcy petition, they
Case 10-14167 Doc# 53 Filed 01/12/12 Page 2 of 15
claimed as exempt real property located in El Reno, Oklahoma, under § 522(d)(1), which
authorizes the exemption, up to a specified dollar value, of real or personal property used
as a residence. The Debtors gave the value of that exemption as $12,000. The El Reno
property has not been included as one of the “residences” listed in the parties’ stipulation.
The Debtors also claimed various items of personal property as exempt under other
portions of § 522(d).
The Trustee objected, asserting that the Debtors were only entitled to exemptions
provided by Oklahoma law, so none of their claimed exemptions should be allowed. He
went on to make an alternative argument, conceding it was possible the Debtors might not
be entitled to claim Oklahoma exemptions — either because they were not residents of
that state or because their property was not located there — and therefore might be
entitled to claim exemptions under § 522(d). But even if that were true, the Trustee
argued, the Debtors could not claim the El Reno property as exempt because they were
not using it as a residence when they filed their bankruptcy case.
The Debtors responded that they did not qualify for Kansas exemptions because
they did not reside in Kansas for the full two-year period before they filed for bankruptcy,
and that although they resided in Oklahoma during the six-month period before that two-
year period, they could not claim Oklahoma exemptions because that state limits its
exemptions to residents of the state. They added, however, that Oklahoma has opted out
of the § 522(d) exemptions only for its residents. Consequently, they argued, they were
eligible to claim the § 522(d) exemptions.
Case 10-14167 Doc# 53 Filed 01/12/12 Page 3 of 15
On February 14, 2011, the Debtors filed an amended Schedule C, changing the
basis for their exemption of the El Reno property to § 522(d)(5), which authorizes the
exemption of any property up to a value of $1,150, plus, to the extent the residence
exemption under § 522(d)(1) is not used, value of up to $10,8251 more. Relying on
§ 522(d)(5), the Debtors claimed exemptions for which they gave these values:
(1) $2,210 and $17,250 for the El Reno property, (2) $90 for a deposit account, and
(3) $4,400 for a 2010 tax refund. They showed the total value of the El Reno property to
be equal to the sum of the two values they gave as the value of their exemption claim in
the property. The Trustee objected, incorporating his prior objection, and adding that he
“further objects pending determination of the relative values of the claims of exemption
and the property in which the claim is made.”2 The Debtors filed a response
incorporating their response to the Trustee’s original objection.
On June 21, 2011, the exemption dispute came on for hearing, and the parties
advised the Court there was a question whether federal or Oklahoma exemptions applied.
The Court set a discovery deadline and continued the matter for a September status
On June 28, 2011, the Debtors filed another amended Schedule C. This time, they
1See Judicial Conference of the United States, Revision of Certain Dollar Amounts in the
Bankruptcy Code Prescribed Under Section 104(A) of the Code, 75 Fed. Reg. 8747, 8748 (Feb. 24, 2010)
(specifying new dollar amounts for various Bankruptcy Code provisions, including § 522(d)(5), to take
effect Apr. 1, 2010), available at 2010 WL 637457.
2Docket No. 25.
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reduced the value of their claimed exemption in the El Reno property to $3,165, and
showed the current value of the property to be $7,000. Otherwise, the second amended
Schedule C was identical to the first amended one. The Trustee did not file a new
objection to this amendment.
1. Burden of proof.
Federal Rule of Bankruptcy Procedure 4003 governs claiming and objecting to
exemptions, and subsection (d) provides that in any hearing under the rule, “the objecting
party has the burden of proving that the exemptions are not properly claimed.”
Consequently, it was up to the Trustee to show the Debtors are not entitled to claim
exemptions under § 522(d) of the Bankruptcy Code. Although there are other provisions
of federal law that provide exemptions, the exemptions established by § 522(d) are
commonly referred to as the “federal exemptions.”3
2. The Trustee’s failure to object to the Debtors’ second amended
Schedule C does not bar determining their right to claim the federal
As a preliminary matter, the Debtors argue the Trustee’s objection to their
exemptions should be overruled because he did not file a new objection when they filed
their second amended Schedule C. The Trustee points out that the second amendment
3See 4 Collier on Bankruptcy, ¶ 522.02 (Alan N. Resnick & Henry J. Sommer, 16th ed. 2011)
(listing a number of federal statutes outside the Bankruptcy Code that establish exemptions); see also,
e.g., In re Stephens, 402 B.R. 1, 3 (10th Cir. BAP 2009) (referring to § 522(d) exemptions as the “federal
Case 10-14167 Doc# 53 Filed 01/12/12 Page 5 of 15
reduced the value of the Debtors’ claimed exemption in the El Reno property to $3,165
and their estimate of the total value of that property to $7,000, but did not otherwise
change their exemption claims. The Court agrees with the Trustee that these valuation
changes had no effect on his ability to contest the Debtors’ eligibility to claim the federal
exemptions. At most, the Trustee might have waived his effort to reserve the right to
object to the values they gave for the El Reno property by not filing a new objection. The
Court rejects the Debtors’ suggestion the Trustee’s failure to file a new objection when
they filed their second amended Schedule C somehow defeated his objection to their
effort to claim the § 522(d) exemptions, and will not overrule the objection for this
alleged procedural default.
3. The Debtors are entitled to claim the federal exemptions because
Oklahoma law does not specifically preclude them from doing so.
The parties’ dispute requires the Court to determine the meaning of § 522(b) as
applied to the Debtors’ situation. Before 2005, § 522(b) generally authorized debtors to
claim exemptions under the law of the state in which their domicile had been located for
more of the 180 days before they filed for bankruptcy than it had been located in any
other state.4 In 2005, the Bankruptcy Abuse Prevention and Consumer Protection Act
amended the domicile requirement for claiming a state’s exemptions to require a debtor to
have been domiciled in a state for 730 days before filing a bankruptcy petition in order to
4See 11 U.S.C.A. § 522(b)(2)(A) (West 2004).
Case 10-14167 Doc# 53 Filed 01/12/12 Page 6 of 15
qualify to claim that state’s exemptions.5 If the debtor has not lived in a single state for
that 730-day period, then the debtor may only claim exemptions under the law of the state
where the debtor’s domicile was located for the greater part of the 180-day period
immediately before the 730-day period. BAPCPA also added a saving clause at the end
of § 522(b)(3) to cover any situation where this domicile requirement would make the
debtor ineligible to claim exemptions under the law of any state.
As relevant here, the 2005 version of § 522(b) provides:
(b)(1) . . . [A]n individual debtor may exempt from property of the estate
the property listed in either paragraph (2) or, in the alternative, paragraph (3) of
this subsection. . . .
(2) Property listed in this paragraph is property that is specified under
subsection (d), unless the State law that is applicable to the debtor under
paragraph (3)(A) specifically does not so authorize.
(3) Property listed in this paragraph is —
(A) . . . any property that is exempt under Federal
law, other than subsection (d) of this section, or
State or local law that is applicable on the date of
the filing of the petition to the place in which the
debtor's domicile has been located for the 730 days
immediately preceding the date of the filing of the
petition or if the debtor’s domicile has not been
located in a single State for such 730-day period,
the place in which the debtor’s domicile was
located for 180 days immediately preceding the
730-day period or for a longer portion of such
180-day period than in any other place.
. . . .
If the effect of the domiciliary requirement under subparagraph (A)
5Pub. L. No. 109-8, § 307 (2005), 119 Stat. 23. Section 224 of BAPCPA redesignated
§ 522(b)(2)(A) as § 522(b)(3)(A).
Case 10-14167 Doc# 53 Filed 01/12/12 Page 7 of 15
is to render the debtor ineligible for any exemption, the debtor may
elect to exempt property that is specified under subsection (d).
Paragraph (2) would allow the Debtors to claim the § 522(d) exemptions unless “the State
law that is applicable to [them] specifically does not so authorize.” This portion of the
statute is generally said to authorize the states to opt out of the exemptions provided by
subsection (d).6 Paragraph 3(A) provides that the state law “applicable” in the Debtors’
“domicile” provides exemptions the Debtors can claim so long as their “domicile” was
located in that state for two full years (“730 days”) before they filed their bankruptcy
a. The Trustee’s objection could be overruled because he
failed to prove the Debtors’ “domicile” was ever located in
a state that barred them from claiming the federal
The Court notes the parties’ stipulation specifies where the Debtors’ “resided”
when they filed their bankruptcy case, and then lists several “prior residences” for them.
As shown by the quote above, § 522(b)(3)(A) uses the word “domicile,” not “reside” or
“residence.” For “residence,” Black’s Law Dictionary provides this definition and
residence. . . . 2. The place where one actually lives, as distinguished from a
domicile. . . . Residence usually just means bodily presence as an inhabitant in a
given place; domicile usually requires bodily presence plus an intention to make
the place one’s home. A person thus may have more than one residence at a time
but only one domicile. Sometimes though, the two terms are used
64 Collier on Bankruptcy, ¶ 522.02 & .
Case 10-14167 Doc# 53 Filed 01/12/12 Page 8 of 15
A leading bankruptcy treatise similarly contends “domicile” in § 522 means more than
just residence, requiring in addition an intention to remain where the residence is located.8
The Trustee’s objection to the Debtors’ claimed exemptions could be overruled on the
ground the Trustee has failed to meet his burden to prove that the Debtors’ “domicile”
was located in a place whose law would preclude them from claiming the exemptions
provided by § 522(d).
However, the Court recognizes that the parties were careless in preparing the
stipulation and appear to have used “resided” and “residence” as the equivalent of
“domicile” in § 522, as the Debtors have not based any arguments on the possibly
different meanings of the words. The Court declines to rule against the Trustee on this
b. The Debtors are entitled to claim the federal
exemptions because the Oklahoma opt-out statute does
not apply to them.
Under the stipulation, the Court will assume the Debtors’ domicile was located in
Kansas for about 15 months before they filed their petition, and was located in Oklahoma
for about 19 to 20 months before that. Since their domicile was in Kansas for less than
7Black’s Law Dictionary, definition 2 for “residence” (9th ed. 2009).
84 Collier on Bankruptcy, ¶ 522.06 at p. 522-40 to -41; see also Black’s Law Dictionary,
definition 1 for “domicile”: “The place at which a person has been physically present and that the person
regards as home; a person's true, fixed, principal, and permanent home, to which that person intends to
return and remain even though currently residing elsewhere.”
Case 10-14167 Doc# 53 Filed 01/12/12 Page 9 of 15
the full 730-day period before they filed, the fact their domicile was in Oklahoma for the
full 180-day period before that 730-day period means, under § 522(b)(3)(A), that
Oklahoma provides the exemption law that is applicable to them.
The Trustee broadly declares that Oklahoma has opted out of the federal
exemptions, and contends that means Oklahoma does not authorize the Debtors to use the
federal exemptions. However, a careful reading of the Oklahoma opt-out statute reveals a
flaw in that argument. The statute reads: “No natural person residing in this state may
exempt from the property of the estate in any bankruptcy proceeding the property
specified in subsection (d) of Section 522” of the Bankruptcy Code.9 Read literally, this
says residents of Oklahoma may not claim the federal exemptions, but it says nothing
about people like the Debtors in this case who are not residing in Oklahoma when they
file for bankruptcy. Indeed, it is difficult to say why Oklahoma would have any interest
in controlling the exemptions a person could claim in a bankruptcy case merely because
the person’s domicile used to be in Oklahoma. This suggests the Debtors are entitled,
under § 522(b)(2), to claim the federal exemptions because Oklahoma law does not
preclude them from doing so.
In In re Camp, the Fifth Circuit Court of Appeals faced facts identical in relevant
respects to those presented here, and ruled the applicable state’s opt-out statute did not
prevent a former resident from claiming the federal exemptions.10 In that case, the debtor
9Okla. St. Ann. tit. 31, § 1(B) (emphasis added).
10631 F.3d 757, 759-61 (5th Cir. 2011).
Case 10-14167 Doc# 53 Filed 01/12/12 Page 10 of 15
filed his bankruptcy case in Texas but had not lived there for the entire 730-day period
before he filed; during the majority of the 180-day period prior to the 730-day period, the
debtor had lived in Florida.11 Florida had exercised the exemption opt-out option
provided by § 522(b) through a statute that read: “In accordance with the provisions of
[11 U.S.C.A. § 522(b)], residents of this state shall not be entitled to the federal
exemptions provided in [11 U.S.C.A. § 522(d)]. Nothing herein shall affect the
exemptions given to residents of this state by the State Constitution and the Florida
Statutes.”12 The Fifth Circuit said, “Therefore, Florida’s opt-out statute, by its own
express terms, does not apply to nonresident debtors, who remain eligible to use the
federal exemptions because nothing in Florida law specifically disallows them from doing
The Court notes the Fifth Circuit’s ruling cannot be said to defeat Congress’s
intent as expressed in § 522(b) because it brings debtors like the ones in this case within
the general rule the statute provides, namely, that they can claim the federal exemptions
established by § 522(d). Section 522(b) does not say all debtors must be entitled to
11Id. at 759.
12Id. at 760 (quoting Fla. St. Ann. § 222.20 (West 2011), with emphasis added and other
alterations made by Fifth Circuit).
13Id. at 760-61 (citing In re Battle, 366 B.R. 635, 636 (Bankr. W.D. Tex. 2006) (holding that
Florida’s opt-out statute does not bar nonresident debtors from claiming the federal exemptions); In re
Schulz, 101 B.R. 301, 302 (Bankr. N.D. Fla. 1989) (same); see also In re Chandler, 362 B.R. 723, 726–27
(Bankr. N.D.W.Va. 2007) (same, for Georgia’s opt-out statute); In re Underwood, 342 B.R. 358, 361–62
(Bankr. N.D. Fla.2006) (same, for Colorado’s opt-out statute); In re Volk, 26 B.R. 457, 460–61 (Bankr.
D.S.D. 1983) (same, for South Dakota’s opt-out statute); In re Walley, 9 B.R. 55, 57–58 (Bankr. S.D. Ala.
1981) (same, for Alabama’s opt-out statute).
Case 10-14167 Doc# 53 Filed 01/12/12 Page 11 of 15
choose the exemptions provided by the law of the state that the statute makes applicable
to them. Indeed, the new paragraph added at the end of § 522(b)(3) by BAPCPA
indicates Congress recognized it was possible some debtors might not be entitled to do so.
This Court agrees with the Fifth Circuit’s reasoning in Camp, and concludes the Debtors
in this case are eligible to claim the federal exemptions under § 522(b)(2) because the
Oklahoma opt-out statute does not apply to them.
4. The Court has some difficulties with the parties’ arguments about
the applicability of the saving clause at the end of § 522(b)(3), but need
not decide that dispute now since Oklahoma’s opt-out statute does not
prevent these Debtors from claiming the federal exemptions.
The Trustee and the Debtors assume the question here is whether the new
paragraph that BAPCPA added at the end of § 522(b)(3) authorizes the Debtors to claim
the federal exemptions because Oklahoma’s exemptions say they are available only to
residents of the state.14 Relying on a decision by a bankruptcy judge in the Southern
District of Texas, In re Garrett,15 the Trustee argues § 522(b)(3)(A) preempts such
territorial and domiciliary limitations on state-law exemptions, and allows the Debtors to
claim only the exemptions provided by Oklahoma law even though they are not residents
of that state. The Debtors respond that the Tenth Circuit Bankruptcy Appellate Panel’s
decision in In re Stephens16 shows that § 522(b)(3)(A) does not preempt territorial
14See Okla. St. Ann. tit. 31, § 1(A) (West 2011).
15435 B.R. 434.
16402 B.R. 1 (10th Cir. BAP 2009).
Case 10-14167 Doc# 53 Filed 01/12/12 Page 12 of 15
limitations on state-law exemptions, and that they are entitled to claim the federal
exemptions under BAPCPA’s saving clause.
The Court declines the Trustee’s invitation to adopt Garrett’s reasoning. Garrett
conceded the majority of courts had ruled that § 522(b)(3)(A) does not preempt a state’s
law that makes its exemptions available only to residents or domiciliaries, and cited a
single bankruptcy court decision, In re Camp, that had reached the opposite conclusion.17
After Garrett was decided, the bankruptcy court’s decision in Camp was reversed by the
Fifth Circuit decision discussed earlier in this opinion.18 This leaves Garrett as the only
unreversed decision to adopt that preemption conclusion.
Furthermore, Garrett relied on an aspect of the bankruptcy court’s reasoning in
Camp19 that was not reached in the Fifth Circuit’s decision, but with which this Court
disagrees. The Camp bankruptcy court had reasoned that residency restrictions in a
state’s exemption laws are choice of law provisions, that § 522(b)(2) and (b)(3)(A) are
also choice of law provisions, and that when the Bankruptcy Code provisions say the
exemption laws of a particular state apply to a debtor, the state’s choice of law provisions
that would make its exemptions unavailable to that debtor conflict with the Bankruptcy
Code and are preempted.20 This reasoning might be sound if the Bankruptcy Code
17Id. at 439-40.
18631 F.3d 757.
19See Garrett, 435 B.R. at 440-41 (discussing Camp, 396 B.R. at 198-99).
20396 B.R. at 197-99.
Case 10-14167 Doc# 53 Filed 01/12/12 Page 13 of 15
provisions did not establish any federal exemptions but merely adopted state exemption
laws for all debtors, and the rules in § 522(b) simply established which state’s laws would
apply in each case. Perhaps because so many states have exercised the opt-out option, it
is easy to forget that § 522(b) in fact does something quite different. First, it adopts a
default rule that all debtors can claim either (1) the federal exemptions or (2) the
applicable state-law exemptions plus nonbankruptcy federal exemptions. Then it
authorizes the states to eliminate option 1 in some cases. Finally, under the BAPCPA
amendments, it provides a back-up protection that restores a debtor’s option to choose the
federal exemptions in the event the domiciliary requirement of § 522(b)(3)(A) would
render that particular debtor ineligible for any exemptions. As the Tenth Circuit
Bankruptcy Appellate Panel suggested in Stephens, it does not appear that Congress was
trying to preempt any state laws in § 522(b), but instead that it intended to authorize the
states in some cases to preempt federal exemption law that would otherwise apply.21
Relying on Stephens,22 the Debtors argue that since Oklahoma provides its
exemptions only to its residents, they cannot claim any of that state’s exemptions and are
therefore eligible for the federal exemptions as authorized by the new paragraph at the
end of § 522(b)(3). The Court notes that Stephens is factually distinct from this case as
the Iowa opt-out statute at issue in that case did not limit its application to residents or
21402 B.R. 1, 5 (10th Cir. BAP 2009).
22402 B.R. 1.
Case 10-14167 Doc# 53 Filed 01/12/12 Page 14 of 15
domiciliaries of the state.23 In addition, Stephens ruled that Iowa’s homestead exemption
was available for property located outside the state, so the saving clause BAPCPA added
at the end of § 522(b)(3) did not apply to the debtor’s homestead claim.24 A decision that
the saving clause did not apply in one situation does not provide much support for the
Debtors’ contention the clause does apply in their different situation.
For these reasons, the Court agrees with the Fifth Circuit’s decision in Camp and
concludes the Debtors in this case are entitled to claim the exemptions provided by
§ 522(d) because Oklahoma’s opt-out statute does not apply to them. The Trustee’s
objection to their exemptions is hereby overruled.
# # #
23Id. at 4, n. 9 (quoting Iowa opt-out statute).
24Id. at 5-8.
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