I have 2 cases with oral arguments in the 9th Circuit Court of Appeals.

We have prepared a press release for the Greenwood Matter.  See below:

 

NEVADA BANKRUPTCY ATTORNEY COMMENTS UPON THE DUTY OF BANKRUPTCY CREDITORS TO FILE TIMELY OBJECTIONS TO EXEMPTIONS CLAIMED BY BANKRUPTCY DEBTORS

Reno, Washoe County, Nevada, December 17, 2014 – Bankruptcy creditors must file timely objections to exemptions claimed by bankruptcy debtors; otherwise, bankruptcy debtors are guaranteed a payment in the dollar amount of the claimed exemptions, even if they had no colorable statutory basis for claiming the exemptions.

 

In Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992), the United States Supreme Court held that bankruptcy trustees and creditors generally have thirty (30) days from the initial creditors’ meeting to object to exemptions claimed by bankruptcy debtors; and that, unless bankruptcy trustees and creditors so object, the property claimed by bankruptcy debtors as exempt is exempt.  And this is true even if bankruptcy debtors had no colorable statutory basis for claiming the exemptions.  The High Court stated that “[d]eadlines may lead to unwelcome results, but they prompt parties to act and they produce finality.”

 

In Schwab v. Reilly, 560 U.S. 770, 130 S.Ct. 2652, 177 L.Ed.2d 234 (2010), the United States Supreme Court refined its holding in Taylor by concluding that, although bankruptcy trustees and creditors generally must object to bankruptcy exemptions claimed by bankruptcy debtors within thirty (30) days, they need do so only if the amount of claimed bankruptcy exemptions is not within statutory limits.  Furthermore, bankruptcy trustees and debtors are entitled to evaluate the propriety of claimed exemptions based on three, and only three, entries on the bankruptcy debtor’s Schedule C:  (1) the description of the property; (2) the law providing each exemption and (3) the value of the claimed exemption.  In addition, actual title to the property will remain with the bankruptcy estate, but bankruptcy debtors will be guaranteed a payment in the dollar amount of claimed bankruptcy exemptions.

 

The import of the above two decisions now is being tested in a case pending before the United States Court of Appeals for the Ninth Circuit.  See, Jerry and Eugenia Greenwood v. OneWest Bank, Consolidated Case Nos. 12-60063/12-60064.  Oral argument in this case currently is scheduled before the Ninth Circuit in San Francisco, California, at 9:00 a.m. on February 10, 2015.

 

Stated in greatly oversimplified fashion, the Greenwoods (bankruptcy debtors) claimed a homestead exemption on their residence in the amount of $441,000 on Schedule C of their Voluntary Chapter 7 Bankruptcy Petition.  The Greenwoods’ $441,000 claimed homestead exemption was well within Nevada’s $550,000 homestead exemption, but, nevertheless, it was not a valid homestead exemption claim, because the Greenwoods had no equity in their residence.  Although it was obvious from even a cursory examination of the Greenwoods’ other schedules that the Greenwoods had no equity in their residence, OneWest Bank (creditor) failed to file a timely objection to the Greenwoods’ $441,000 claimed homestead exemption within the requisite thirty (30) day period.  Furthermore, although OneWest Bank could have argued, and undoubtedly should have argued, to the Bankruptcy Court that the reason it did not object to the Greenwoods’ $441,000 claimed homestead exemption was that it had no duty to object under Schwab— because the Greenwoods’ $441,000 claimed homestead exemption on their Schedule C was well within Nevada’s $550,000 homestead exemption–OneWest Bank failed to do so.  Indeed, OneWest Bank had no less than five opportunities to raise this argument, but it failed to do so over a period of two years.  Of course, OneWest Bank now wishes to raise this pretermitted argument for the first time on appeal to the Ninth Circuit.  Unfortunately for OneWest Bank, the general rule is that the Ninth Circuit will not consider issues raised for the first time on appeal.

 

Stated bluntly, OneWest Bank now needs a “bail out” from the Ninth Circuit; otherwise, the Greenwoods will entitled to a guaranteed payment in the amount of $441,000.

 

Learn more at http://www.goodmanlawnevada.com/

 

Goodman Law Center, P.C.

Mark A. Goodman, Esq.

348 Mill Street

Reno, Nevada  89501-1537

Call:  (775) 473-4268