Caron v. Farmington National Bank

                United States Court of Appeals
                            United States Court of Appeals
                    For the First Circuit
                                For the First Circuit
                                         
No. 95-2320

      IN RE: ODA JOSEPH CARON AND LORRAINE NORMA CARON,

                           Debtor.

                                         

         ODA JOSEPH CARON, D/B/A CARON & SONS MOBIL,
  F/D/B/A WAKEFIELD COUNTRY STORE AND LORRAINE NORMA CARON,

                         Appellants,

                              v.

                   FARMINGTON NATIONAL BANK
         AND LAWRENCE P. SUMSKI, CHAPTER 13 TRUSTEE,

                          Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF NEW HAMPSHIRE

        [Hon. Paul J. Barbadoro, U.S. District Judge]
                                                                

                                         

                            Before

                     Selya, Circuit Judge,
                                                     
                Aldrich, Senior Circuit Judge,
                                                         
                  and Stahl, Circuit Judge.
                                                      
                                         

Grenville Clark, III  with whom Gray Wendell  & Clark, P.C. was on
                                                                       
brief for appellants.
David P. Azarian with whom Michael, Jones  & Wensley was on  brief
                                                                
for appellees.
                                         
                        April 25, 1996
                                         


          STAHL, Circuit Judge.  Oda J. Caron and Lorraine N.
                      STAHL, Circuit Judge.
                                          

Caron   appeal  the  district   court's  affirmance   of  the

bankruptcy  court's  denial  of  an exemption  for  the  cash

surrender value  of an insurance policy on  Mr. Caron's life.

Because we  find that the courts  below correctly interpreted

the applicable New Hampshire statute, we affirm.

                          Background
                                      Background
                                                

          Appellants, husband and wife, filed a joint Chapter

13 bankruptcy petition in  the United States Bankruptcy Court

for the District  of New  Hampshire.  In  their statement  of

financial  affairs, they  listed as  an asset  a Metropolitan

Life Insurance Company policy  on the life of Mr.  Caron, and

they  claimed  the  policy's  $19,260 cash  value  as  exempt

property pursuant  to   522(b)(2)(A) of the  Bankruptcy Code.

Because New Hampshire enacted legislation "opting out" of the

federal exemptions, New Hampshire debtors are  only permitted

to exempt property pursuant to state-enacted exemptions,  not

those specified in  11 U.S.C.   522(d).   See N.H. Rev. Stat.
                                                         

Ann.       511:2-a (opting out of  federal exemption scheme).

Farmington National  Bank, a  creditor of the  Carons, timely

filed  an objection  to  the exemption  claim,  in which  the

chapter 13 trustee joined.

          After a  hearing  before the  bankruptcy court,  at

which  a  copy of  the life  insurance  policy was  placed in

evidence, the court ruled that the policy was property of the

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estate  under  11  U.S.C.     541(a)(1)  and  that  the  cash

surrender value of  the life insurance policy was  not exempt

under  New Hampshire law.  The Carons appealed that ruling to

the United  States District  Court  for the  District of  New

Hampshire, which affirmed the  order of the bankruptcy court.

This appeal followed.

          The  sole issue  for determination  is whether  the

courts below erred in holding that the  life insurance policy

was not exempt property.  The parties agree with the relevant

factual findings made  by the bankruptcy  court: that at  the

time  of the  filing of  the  bankruptcy petition,  Mr. Caron

owned the  life insurance  policy and  retained the  right to

change  the  beneficiary  (his wife  and  co-debtor  Lorraine

Caron) and the contingent  beneficiaries (their children), as

well as the right to surrender the policy for its cash value.

Thus, for purposes of this appeal,  all that is before us  is

the  legal conclusion that the policy was not exempt, and our

standard of review is de novo.   See T I Federal Credit Union
                                                                         

v. DelBonis, 72 F.3d 921, 928 (1st Cir. 1995).
                       

                          Discussion
                                      Discussion
                                                

          In order to determine whether the cash value of the

policy is exempt,  we begin with  the New Hampshire  statute,

N.H. Rev. Stat. Ann.   408:2, which provides: 

               If  a policy  of  life or  endowment
          insurance  is effected  by any  person on
          his own life or on another life, in favor
          of a person other than  himself having an

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          insurable  interest  therein, the  lawful
          beneficiary thereof other than himself or
          his   legal  representatives,   shall  be
          entitled  to its  proceeds and  all other
          benefits     against    creditors     and
          representatives  of the  person effecting
          the  same; provided, that, subject to the
          statute of limitations, the amount of any
          premiums for said insurance paid in fraud
          of  creditors,   with  interest  thereon,
          shall  enure to  their  benefit from  the
          proceeds of the policy. 

          The bankruptcy court ruled  that the policy was not

exempt,  incorporating  by  reference its  discussion  of the

issue in In re  Monahan, 171 B.R. 710, 715-21  (Bankr. D.N.H.
                                   

1994)  where  it  decided   three  separate  cases  involving

exemption  claims  under   New  Hampshire's  life   insurance

exemption statute,   408:2.  

          Because  the New  Hampshire  Supreme Court  has not

rendered any  decisions construing   408:2,  we interpret the

statute  as  we think  that court  would  interpret it.   The

district  court agreed  with  the bankruptcy  court that  the

plain meaning of the statute restricts the exemption right to

the   beneficiary   and  provides   no  protection   for  the

insured/owner of the policy.  Because the policy in this case

provided the  beneficiary with  no right  to the proceeds  or

other benefits of  the policy  except upon the  death of  the

insured, the  district court ruled that Mrs. Caron, the named

beneficiary, had no right  during the life of her  husband to

maintain the  policy  for her  benefit  or to  surrender  the

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policy for its cash value, and that her sole  interest was as

the beneficiary in the event of Mr. Caron's demise.

          The  appellees, Farmington  National  Bank and  the

Chapter  13 Trustee,  argue  that the  New Hampshire  statute

distinguishes between  the owner/insured of the  policy and a

third  person  beneficiary  and clearly  specifies  that  the

person entitled  to the exemption is  "the lawful beneficiary

thereof," not  the insured/owner.   The appellees  argue that

only  when the insured has "parted with all of his beneficial

interest  therein" would  a life  insurance policy  be exempt

from the  insured's creditors, quoting from  and relying upon

In re Bray,  8 F. Supp. 761, 763 (D.N.H.  1934).  They reason
                      

that since Mr. Caron,  at the time of the  bankruptcy filing,

had  not "parted  with all  his beneficial  interest" in  the

policy,  but  rather retained  ownership and  the concomitant

rights to reach its cash value and to change the beneficiary,

he still  effectively retained all  the beneficial  interest.

Mrs. Caron's  interest, they  assert, was both  defeasible by

Mr. Caron and contingent upon his death.

          While the  statute is  not a model  of clarity,  we

find the reasoning  of the bankruptcy court  and the district

court to be compelling.  We  agree that the statute cannot be

read to exempt the  policy in favor of an  owner/insured, but

only in favor of a beneficiary.   And here, the rights of the

beneficiary,  Mrs.  Caron, do  not  arise  until Mr.  Caron's

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death,  and  her  prospective  rights can  be  diminished  or

terminated  by him during his lifetime.  As such, because Mr.

Caron  was alive at the  time the petition  in bankruptcy was

filed,  Mrs. Caron had no rights in the proceeds, cash value,

or other benefits of the policy.   Thus, she had no  interest

in the policy  that could be  exempted by  the statute.   The

rights  and   powers  under   the  policy  retained   by  the

owner/insured, Mr.  Caron, became the property  of the estate

as of the filing of the petition.   See 11 U.S.C.   541(a)(1)
                                                   

(all legal or equitable  interests of the debtor  in property

become property of the estate upon commencement of the case).

Accordingly, neither Mr.  Caron nor his wife  are entitled to

the statutory exemption.1 

          While  we recognize  that generally  courts are  to

construe  exemption  statutes   liberally  to  reflect  their

remedial  purposes, we  find reasons  here to  afford  a more

narrow  reading.  While the result that the Carons seek would

apparently obtain under  the analogous federal  exemption, 11

U.S.C.   522(d)(7), see In re Monahan, 171 B.R. at 716 & n.8,
                                                 

legislative history indicates that New Hampshire opted out of

                    
                                

1.  We note, but  do not rely upon, the  fact that Mrs. Caron
is  a  co-debtor in  this  joint bankruptcy,  and  it appears
therefore that  her interest in  the insurance policy  was an
asset of  the estate in any  event, subject to the  claims of
her creditors if  not Mr.  Caron's.  At  most, the  exemption
               
statute shelters a policy from the creditors of  the insured;
it  makes no reference  to the creditors  of the beneficiary.
See N.H. Rev. Stat. Ann.   408:2.  
               

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the federal  exemption scheme  because it was  too "liberal,"

overly  indulgent of  debtors at  the expense  of creditors.2

Even more  persuasive is legislative  history indicating that

the  New Hampshire  legislature specifically chose  to delete

language that would have made the Carons' arguments much more

plausible.   The  statute at  issue, as  originally proposed,

provided that the exemption was available "whether or not the

right to change the beneficiary  is reserved or permitted  to

such  person  [the  owner/insured],"  but  that language  was

struck.    New  Hampshire House  Report  on  House Bill  224,

Journal of  the House, April 29, 1931, at 698.  We infer from

the  deletion that  the  legislature declined  to extend  the

exemption to  policies where  the owner/insured  retained the

power  to alter  the  beneficiary.   Of  like import  is  the

legislature's deletion of the provision that "No court and no

trustee or assignee for the benefit of creditors, shall elect

for  the person  effecting  such insurance  to exercise  such

right to change  the named beneficiary."  Id.   We infer from
                                                         

this deletion  a legislative  intent that the  statute should

not  prevent  a bankruptcy  trustee  from  stepping into  the

                    
                                

2.  See New  Hampshire House Judiciary Comm.  Report, Journal
                   
of  the House, 1981 January  Session, April 23,  1981, at 533
(stating  that  the proposed  opt-out  statute  "prevents New
Hampshire residents from filing with the more liberal federal
bankruptcy  law.");  Minutes  of  House  Judiciary  Committee
executive session April 20, 1981, statement of Representative
Eaton  (federal bankruptcy  act  is "very  liberal" and  that
state exemptions ought to control instead).

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policy  owner's  shoes to  exercise  policy  rights, such  as

reaching the cash  value or changing the beneficiary.   Thus,

the legislative history strongly  suggests a narrow scope for

New Hampshire's  life insurance  exemption,  and the  Carons'

exemption claim falls outside that scope.

          Contrary to the Carons' arguments, we are not bound

to  follow,  and  need   not  overrule,  the  district  court

decisions in In re  Whelpley, 169 F. 1019 (D.N.H.  1909), and
                                        

In re  Bray,  8 F.  Supp. 761  (D.N.H. 1934).   The  Whelpley
                                                                         

decision predates  the enactment  of the present  statute and

the aforementioned legislative choices  to set a narrow scope

for  the  exemption.   Moreover,  the  two-paragraph Whelpley
                                                                         

opinion is devoid of  analysis.  In Bray, the  district court
                                                    

held  that the life insurance policy was not exempt under the
                                                        

statute at issue here.  Bray, 8  F. Supp. at 763.  While Bray
                                                                         

provides more  analytical discussion,  it is not  clear which

aspects of the insurance policy  rendered it non-exempt.   It

is just as plausible,  in our view,  to read Bray as  support
                                                             

for the appellees' arguments as it is for the Carons'.  Thus,

having  considered  both  Whelpley  and Bray,  we  find  them
                                                        

unpersuasive.

          Because the language of the  exemption statute does

not encompass the insurance policy in this case, the decision

of the district court is affirmed.
                                             

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