Michael Showalter v. J. Hopper

FILED
NOT FOR PUBLICATION JUN 19 2015

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: MICHAEL TRENT No. 13-60045
SHOWALTER,
BAP No. 12-1419
Debtor,
_______________________________ MEMORANDUM*

MICHAEL TRENT SHOWALTER,

Appellant,

v.

J. MICHAEL HOPPER,

Appellee.

Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Dunn, Jury, and Markell, Bankruptcy Judges, Presiding

Submitted June 11, 2015**
San Francisco, California

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: SCHROEDER and IKUTA, Circuit Judges, and SEABRIGHT, *** District
Judge.

Michael Trent Showalter (“Showalter”) appeals a Bankruptcy Appellate

Panel (“BAP”) decision affirming a bankruptcy court order sustaining Chapter 7

Trustee J. Michael Hopper’s objection under Federal Rule of Bankruptcy

Procedure 4003(b) to Showalter’s claimed homestead exemption in a one-third

interest in a Florida property. We have jurisdiction pursuant to 28 U.S.C.

§ 158(d)(1), and we affirm.

Showalter sought an Article 5 “declared homestead” exemption under Cal.

Civ. Proc. Code § 704.920. But an Article 5 exemption applies only to “voluntary

sales,” and not to “forced sales” such as the filing of a bankruptcy petition at issue

here. See, e.g., Kelley v. Locke (In re Kelley), 300 B.R. 11, 20-21 (B.A.P. 9th Cir.

2003); Katz v. Pike (In re Pike), 243 B.R. 66, 70 (B.A.P. 9th Cir. 1999).

Further, even if Showalter relied on California’s “automatic homestead”

provision under Article 4, Cal. Civ. Proc. Code § 704.720 does not apply because

Showalter did not reside in the homestead property when he filed for bankruptcy.

See, e.g., Redwood Empire Prod. Credit Ass’n v. Anderson (In re Anderson), 824

F.2d 754, 757 (9th Cir. 1987). To determine residency for homestead purposes

***
The Honorable J. Michael Seabright, United States District Judge for the
District of Hawaii, sitting by designation.

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under California law, a court considers “physical occupancy of the property and

the intention with which the property is occupied.” In re Kelley, 300 B.R. at 21

(citing Ellsworth v. Marshall, 16 Cal. Rptr. 588, 589 (Cal. App. 1961)). The

factual findings that Showalter did not occupy the Florida property when he filed

his bankruptcy petition, and that he had no credible intent to return to reside there

permanently, were not clearly erroneous. See, e.g., Retz v. Samson (In re Retz),

606 F.3d 1189, 1196 (9th Cir. 2010) (reviewing bankruptcy court’s factual

determinations for clear error).

Finally, Showalter’s argument that the Florida property is exempt under the

Florida Constitution lacks merit. Given the bankruptcy court’s finding that

Showalter’s residence in California was not temporary, California’s (not Florida’s)

exemption laws apply. See 11 U.S.C. § 522(b)(3)(A); Arrol v. Broach (In re

Arrol), 170 F.3d 934, 936 (9th Cir. 1999). And, in any event, Showalter

abandoned this argument when he failed to renew it in his Second and Third

Amended Schedule C.

AFFIRMED.

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