Edmonston v. Murphy

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

No. 96-1840

                              IN RE

                       DAVID B. EDMONSTON,

                              Debtor
                                      
                                                

                       DAVID B. EDMONSTON,

                            Appellant,

                                v.

                        HAROLD B. MURPHY,

                            Appellee.

                                           
                                                     

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Reginald C. Lindsay, U.S. District Judge]
                                                                 

                                           
                                                     

                              Before

                  Cyr and Lynch, Circuit Judges,
                                                         

               and McAuliffe,* U.S. District Judge,
                                                            

                                           
                                                     

   George R. Desmond for appellant. 
                              
   Andrew  G. Lizotte,  with whom  Hanify  & King  was on  brief for
                                                           
appellee. 
                                           
                                                     

                        February 26, 1997
                                           
                                                     

                  
                            

   *Of the District of New Hampshire, sitting by designation.


          CYR, Circuit  Judge.  Chapter 7  debtor David Edmonston
                    CYR, Circuit  Judge
                                       

challenges a  bankruptcy court  ruling disallowing  his exemption

claim to  entireties property     the primary residence  owned by

him  and his nondebtor spouse since 1980.  Edmonston duly claimed

the residence  exempt, see Bankruptcy Code    522(b)(2)(B); Mass.
                                    

Gen. Laws  ch. 209,    1, estimated  its value  at $200,000,  and

indicated that he and his nondebtor spouse were jointly obligated

under  the  $59,000  real   estate  mortgage  and  for  unsecured
                                                                           

indebtedness  totaling  at least  $10,000.    In due  course  the

chapter 7  trustee objected to the exemption  claim and Edmonston

responded  by contesting both the merits of the objection and the

trustee's "standing"  to assert  it.  Ultimately,  the bankruptcy

court  disallowed  the   exemption  claim,  the   district  court

affirmed, and Edmonston appealed.  

                                I.
                                          I.

          As the facts  are not  in dispute, we  conduct de  novo
                                                                           

review of the conclusions of law challenged on appeal.  See In re
                                                                           

Caron, 82  F.3d 7, 9 (1st  Cir. 1996).  First,  however, we chart
               

the legal terrain underlying the contested conclusions of law.  

          An interest in property held in tenancy by the entirety

is exempt in bankruptcy "to the  extent . . . exempt from process

under applicable nonbankruptcy law," 11 U.S.C.   522(b)(2)(B), in

this instance  Massachusetts  law.   See Napotnik  v. Equibank  &
                                                                           

Parkvale  Sav. Assoc., 679 F.2d  316, 318 (3d  Cir. 1982) ("Since
                               

property law in general and the law of co-tenancies in particular

are creatures of state law, the 'applicable nonbankruptcy law' is

                                2


the  applicable  [state]  law  of  tenancy  by  the  entirety.").

Commonwealth law provides that "[t]he interest of a debtor spouse

in property held as tenants by the entirety  shall not be subject

to seizure  by a creditor of  such debtor spouse so  long as such

property  is the  principal residence  of the  nondebtor spouse."
                                                                  

Mass. Gen. Laws  ch. 209,   1 (1987) (emphasis  added).1  Thus, a

creditor  with  a  claim against  both  tenants  by the  entirety
                                                

("joint creditor")  may reach and apply  the entireties property.

See Coraccio v. Lowell Five Cents Sav. Bank, 612 N.E.2d  650, 654
                                                     

(Mass. 1993) ("Nor, by virtue of G.L. c. 209,   1, may a creditor

of  either  seize  the   principal  residence  absent  the  joint

signature  of the spouses."); In  re McConchie, 94  B.R. 245, 247
                                                        

(Bankr. D. Mass.  1988) ("[T]he  property is free  from levy  and

execution from [sic] the creditor of one spouse  if the debts are

not  joint  or  for  necessaries.").   Accordingly,  the  present

exemption claim is unsupported by Commonwealth  law to the extent

Edmonston and his  nondebtor spouse were jointly indebted.   See,
                                                                          

e.g., Sumy  v. Schlossberg, 777 F.2d 921, 928 (4th Cir. 1985) ("A
                                    

debtor does not  lose all  benefit of    522(b)(2)(B) when  joint

creditors are present,  but he does  not benefit from  it to  the

                    
                              

     1Originally, chapter 209,   1, did not apply to tenancies by
               1
the entirety created prior to  its effective date, viz., February
                                                                 
11, 1980.  Turner v. Greenway, 459 N.E.2d 821, 823 (Mass.  1984).
                                       
See also In re Robbins, 187 B.R. 400, 402 (Bankr.  D. Mass. 1995)
                                
("Tenancies by  the entirety created  prior to February  11, 1980
are governed  by the common  law.").  Subsequently,  however, the
Massachusetts legislature enabled married couples whose tenancies
by the entirety were created prior to February 11, 1980, to elect
to come within  chapter 209,   1.  See Mass. Gen. Laws ch. 209,  
                                                
1 (1987); Mass. Gen. Laws ch. 209,   1A (West Supp. 1996).

                                3


extent of joint claims.").

          Nevertheless,  an exemption claim  becomes effective by

operation of law absent a cognizable objection.   See 11 U.S.C.  
                                                               

522(l) ("Unless a party in interest objects, the property claimed

as exempt on  such list is exempt."); Fed. R.  Bankr. P. 4003(b);

see also  Taylor v. Freeland  & Kronz, 503  U.S. 638,  643 (1992)
                                               

(property  listed as exempt by  debtor is exempt  unless party in

interest objects within 30 days); Mercer v. Monzack, 53 F.3d 1, 3
                                                             

(1st  Cir. 1995)  (property listed  as exempt  becomes exempt  by

operation of  law absent timely objection), cert.  denied, 116 S.
                                                                   

Ct. 1317 (1996).  Since no joint creditor objected to Edmonston's

exemption  claim within  the  allotted time,  the present  appeal

cannot succeed unless the chapter 7 trustee qualifies as a "party

in interest" within the meaning of Bankruptcy Code   522(l).  

          We  think  it clear  that  Bankruptcy  Rule 4003(b)    

itself "derived  from   522(l)  of the  Code," Fed. R.  Bankr. P.

4003,  Advisory  Committee Note      authoritatively  defines the

section 522(l)  term "party  in interest," by  explicitly stating

that the "trustee or any creditor may file objections to the list
                              

of  property claimed  as  exempt."   Fed.  R. Bankr.  P.  4003(b)

(emphasis added).2  Moreover, the position we make explicit today
                    
                              

     2The Bankruptcy  Rules "govern" procedure  in all bankruptcy
               2
proceedings unless inconsistent with either title 11 or title 28,
United States Code.

          Section 247  of Public  Law 95-598, 92  Stat.
          2549  amended  28 U.S.C.     2075. .  .  . to
          require  that  procedural  rules  promulgated
          pursuant to  28 U.S.C.    2075 be  consistent
                                                                 
          with the bankruptcy  statute, both titles  11
                        

                                4


simply gives voice to  the longstanding, implicit acknowledgement

that a  chapter 7  trustee is  a "party  in interest" within  the

meaning of section 522(l).  See, e.g., Taylor, 503 S. Ct. at 642-
                                                       

43  (as trustee  waived right  to oppose  exemption claim  by not

objecting  within  30-day  period  prescribed  by  Rule  4003(b),

property  became  exempt  by operation  of     522(l));  Petit v.
                                                                        

Fessenden, 80 F.3d  29, 32-33  (1st Cir. 1996)  (failure to  file
                   

timely schedules relieved trustee of duty to object, as there was

no "list of  property claimed as  exempt" to be  opposed under   

522(l) and Rule 4003(b)). 

          As  "the representative  of  the estate,"  11 U.S.C.   
                            

323(a) (emphasis added), the chapter 7 trustee is under a duty to

"collect and reduce to money the property of the estate."   Id.  
                                                                         

704(1).3  See First Nat'l Bank of Mobile v. Norris, 701 F.2d 902,
                                                            
                    
                              

          and 28  U.S.C.   Thus, .  . .  any procedural
          matters contained  in title  11 or  28 U.S.C.
          with respect to  cases filed under  11 U.S.C.
          would control.   See 1 Collier, Bankruptcy   
                                        
          3.04[2][c] (15th ed. 1980).

Advisory Committee Note (1983) (emphasis added).

     Edmonston neither  contends nor intimates that  Rule 4003(b)
is in any  respect inconsistent with either  title 11 (Bankruptcy
Code)  or title 28 (Judiciary and Judicial Procedure).  Nor do we
discern any pertinent inconsistency.  On the contrary,  given the
mandate  in  Bankruptcy Code    704  ("The  trustee shall     (1)
collect and reduce to money the property of the estate . . . ."),
any  suggestion that  a chapter  7 trustee  is not  required, let
alone permitted,  to oppose an unallowable  exemption claim would
be  totally  at  odds  with  the  chapter  7  trustee's principal
statutory responsibility, as "the representative  of the [chapter
                                           
7] estate," id.   323(a) (emphasis added). 
                         

     3Edmonston  does not  dispute that  the entireties  property
became  "property  of the  estate" by  operation  of law,  see 11
                                                                        
U.S.C.   541(a)(2)(B) (including in estate all property of debtor

                                5


904  (11th Cir. 1983); In re Brooks,  12 B.R. 22, 24 (Bankr. S.D.
                                             

Ohio 1981).   Thus,  the statutory  duty to  administer nonexempt

property of the chapter 7 estate implicitly empowers  the trustee

to screen and oppose exemption claims which may not be allowable.

See  Fed. R. Bankr.  P. 4003(b); see  also In re  Atlas, 183 B.R.
                                                                 

978, 980 (Bankr. S.D. Fla. 1995) (citing 11 U.S.C.   704; Fed. R.

Bankr. P. 4003(b)).

          We accordingly hold that the trustee, as the designated

representative of the chapter 7 estate, 11 U.S.C.   323(a), whose

duties include  the collection  and liquidation of  the nonexempt

property  of  the  estate, see  id.     704(1),  is  a "party  in
                                             

interest" entitled  to oppose exemption  claims under  Bankruptcy

Code   522(1).  See also In re Van Rye, 179 B.R. 375, 378 (Bankr.
                                                

D. Mass. 1995)  (holding that  "the Trustee, in  his capacity  as

representative  of  the  estate,   has  standing  to  object"  to

exemption claims), aff'd, 96 F.3d 1430 (1st Cir. 1996) (Table).  
                                  

                               II.
                                         II.

          Edmonston  further  contends  that  since  a chapter  7

discharge can only relieve indebtedness of the chapter 7  debtor,

joint creditors may still proceed directly against the entireties

property itself because their claims against the nondebtor spouse

                    
                              

and  spouse which is "liable  for an allowable  claim against the
debtor,  or  for an  allowable claim  against  the debtor  and an
allowable  claim against the debtor's spouse,  to the extent that
such  interest  is  so  liable"),  and  thus  became  subject  to
administration under chapter 7 unless exempt.

                                6


would be  unaffected by Edmonston's chapter 7  proceeding.4  This

claim impermissibly assumes that the chapter 7 debtor is entitled

to  have  the entireties  property set  apart  as exempt,  on the

theory that joint creditors  would retain their respective rights

to proceed against the entireties property under Commonwealth law

in  any event.    As all  relevant  reported cases  make  clear,5

assuming  a proper objection by a party in interest an entireties

exemption  claim is  invalid ab  initio to  the extent  there are
                                                 

joint creditors.  Thereupon, as nonexempt property of the chapter

7   estate   the   entireties   property   becomes   subject   to

administration.     

                               III.
                                         III.

          For the foregoing reasons,  the district court order is
                    
                              

     4In assailing the Fourth Circuit's holding in Sumy, 777 F.2d
                                                                 
at  929-32    that the  entireties property was  not exempt under
Bankruptcy  Code    522(b)(2)(B)     Edmonston  misapprehends the
court's rationale.  The holding was  not based on a "legal fraud"
rationale,  as  Edmonston  suggests,  but on  Bankruptcy  Code   
522(b)(2)(B) and applicable  state law.   Sumy, 777  F.2d at  929
                                                        
(rejecting   entireties  exemption   claim  "by   interpreting   
522(b)(2)(B) in light of state law"). 

     5Other courts of appeals which have weighed in on the matter
are in accord,  see Sumy, 777 F.2d at 932;  In re Grosslight, 757
                                                                      
F.2d  773,  776-77  (6th  Cir.  1985);  Napotnik  v.  Equibank  &
                                                                           
Parkvale Sav. Assoc., 679  F.2d 316, 321 (3d Cir.  1982); compare
                                                                           
Paeplow v. Foley, 972 F.2d 730, 737 (7th Cir. 1992) (by virtue of
                          
Indiana Code   34-2-28-1(a)(5),  entireties property is exempt in
bankruptcy, regardless of presence of joint creditors, as long as
only  one  spouse files  bankruptcy  petition);  so too  are  the
bankruptcy  courts (except in  Indiana) which have  done so, see,
                                                                          
e.g., In re Duncan, 201 B.R. 889, 898 (Bankr. W.D.  Pa. 1996); In
                                                                           
re  Harry,  151 B.R.  735, 737  (Bankr.  W.D. Vir.  1992);  In re
                                                                           
Wickham, 130 B.R. 35, 38 (Bankr.  E.D. Vir. 1991); In re Cerreta,
                                                                          
116  B.R. 402, 405-06 (Bankr.  D.Vt. 1990); In  re Geoghegan, 101
                                                                      
B.R. 329,  330-31 (Bankr. M.D. Fla. 1989);  In re Sefren, 41 B.R.
                                                                  
747, 748 (Bankr. D.Md. 1984); see also Sumy, 777 F.2d at 929 n.16
                                                     
(collecting cases).

                                7


affirmed, with costs to appellee, and the case is remanded to the

bankruptcy  court for  further proceedings  consistent with  this

opinion.

          SO ORDERED.
                    SO ORDERED
                              

                                8