In Re Miller, Neb. Bkr. 00-251 (Bankr. D. Neb. 2000) Judge John C. Minahan, Jr., November 7, 2000.

Court sustained objections to debtors' exemption filed by Nebraska National Bank for a pickup truck and for sound and music equipment. Judge Minahan concluded that amended Neb. Rev. Stat. § 25-1556(4) (Michie Supp. 1999) overruled In Re Nachtigal, 82 B.R. 533 (Bankr. D. Neb. 1988) and that a spouse may not assert a tool of the trade Exemption in co-debtor's property. The Court also held that a debtor may not claim as exempt property intentionally omitted from schedules.

In Re Wrightsman-Gonzales, Bk. No. 97-41983 (Bankr. D. Neb. September 8, 1998) (Judge Minahan)

NRS § 25-1552

NRS § 25-1556

The debtor claimed her 1991 Saturn car as exempt in the amount of $2075 under NRS § 25-1552 and NRS § 25-1556 in the amount of $2400. Court found that exemptions are determined at the time the bankruptcy petition is filed, In Re Peterson, 897 F.2d 935, 937 (8^th Cir. 1990) The chapter 7 trustee asserted that an exemption is not available here under NRS § 25-1556 because the debtor is a student and does not use the car to commute to work or in connection with a trade or business. Debtor claimed that she needed it to commute to her non-paying internship with the Nebraska Crime Commission. However, on the date that this case was filed, the debtor was not using the car to commute to a job, nor was she using the case to commute to the internship. Therefore, the Court held that the vehicle is not exempt under NRS § 25-1556.

In Re Dana, 136 B.R. 813 (Bankr. D. Neb. 1990) (Judge Minahan)

NRS § 25-1556

The exemption for "provisions necessary for six months" does not include growing crops (corn crop; chapter 13 case).

NRS § 25-1552

Any personal property of the debtor(s) may be claimed as exempt under section 25-1552. Thus, a wheat crop, because it is personalty, may be claimed as exempt under this provision. However, a nonpossessory, nonpurchase-money security interest in crops may not be avoided when the crop will not be used or consumed in kind by the debtor (and family) but will be sold, even if the proceeds would be used primarily for personal, family or household use of the debtor.

In Re Nachtigal, 82 B.R. 533 (Bankr. D. Neb. 1988) (Judge Minahan)

NRS § 25-1556

In a joint case, both spouses may claim equipment/tools valued at $1,500 for each spouse. This exemption is not limited to the spouse actually using the equipment/tools. So long as the family uses the equipment "for their own support," a spouse claiming the exemption need not personally use the equipment.

In a joint case, where one spouse was a farmer, a truck and a tractor qualified for the equipment/tools exemption under section 25-1556.

In Re Welborne, 63 B.R. 23 (Bankr. D. Neb. 1986) (Judge Mahoney)

NRS § 25-1556

The clause in section 25-1556 permitting an exemption for household goods does not expressly require that the goods be "necessary," as does the clothing clause preceding it. However, assuming (but not deciding) that only necessities of life may be claimed under section 25-1556, the debtors could amend their exempt list to claim stereo and color TV under section 25-1552.

NRS § 25-1552

Section 25-1552 is a "wildcard" exemption which permits exemption for personalty of any kind except wages.

NRS § 25-1552

NRS § 25-1556

In a joint case, both spouses may claim the statutory amounts under both section 25-1552 and section 25-1556.

In Re Keller, 50 B.R. 23 (Bankr. D. Neb. 1985) (Judge Crawford)

NRS § 25-1556

Married chapter 13 debtors may both claim property of a dollar value up to the statutory maximum for equipment or tools. The statutory maximum at that time was $1,500 per debtor. Thus married debtors filing jointly could claim an exemption totalling $3,000.

In Re Goosey (Goosey v. McDonald State Bank), 10 B.R. 285 (Bankr. D. Neb. 1981) (Judge Crawford) (pre 1997 amendments)

NRS § 25-1556 "Tool of the trade"

Debtor insurance salesman used his automobile approximately 90 percent for business purposes, specifically to sell insurance, obtain property photographs and accomplish on-farm inventories as to clients living in areas of out-state Nebraska not served by public transportation. "Use" and "necessity" are the test for whether an item, at least a vehicle, qualifies as a tool of the trade. "Actual use" and "necessity to present employment" were present here. The car was a necessary adjunct to the debtor's trade as an insurance salesman and qualified as an exempt tool. The case was decided under 11 U.S.C. § 522(d)(6) but presumably would be relevant to NRS § 25-1556.

In Re Dahlberg, Case No. Bk. 78-0-1356 (Bankr. D. Neb. June 27, 1979) (Judge Crawford) (pre 1997 amendments)

NRS § 25-1552

NRS § 25-1556

Vehicle could not be claimed, in this case, as "equipment or tools used by the debtor or his family…." While a truck has been held to be exempt as a "tool" when used by a painter in his business, In Re Bailey, 172 F. Supp. 925 (D. Neb. 1959), not every vehicle used by a debtor is exempt as a "tool." The vehicle must be related to the debtor's occupation. Here the debtors simply used the vehicle to commute to work.

A vehicle is not sufficiently immediate or personal to qualify for exemption as an "immediate personal possession of the debtor and his family."

WAGES

Pruss v. Butler & Laughlin (In Re Pruss), No. 98-6070NE (B.A.P. 8^th Cir. 

June 8, 1999) appeal docketed to the Eighth Circuit Court of Appeals July 12, 1999, briefs have been submitted, Butler & Pruss requested oral argument which has not be decided or scheduled as of November 4, 1999 (Chapter 13) (Judge Schermer) (before Kressel, Schermer, and Dreher) (2:1) (strong 20 page dissent by Judge Dreher)

http://ls.wustl.edu/cgi-bin/8th/baprelease.pl

Debtor was a practicing attorney and appealed an order of the Bankruptcy Court denying her claim of exemption in a portion of her accounts receivable. Debtor claimed the accounts receivable exempt under Neb. Rev. Stat. § 25-1558 which limits garnishment on earnings from personal services, whether denominated as wages, salary, or otherwise. The Appellate Court reversed and remanded to the Bankruptcy Court (Judge Mahoney) and held the debtor's accounts receivable were the equivalent of wages and salary and therefore were exempt under Neb. Rev. Stat. § 25-1558.

PENSION

Patterson v. Shumate, 504 U.S. 753, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992).(Justice Blackmun) (9:0)

http://supct.law.cornell.edu/supct/html/91-913.ZS.html

certiorari to the U.S. Court of Appeals for the 4^th Circuit

ERISA benefits are not property of the estate. An anti alienation provision in an ERISA qualified pension plan constitutes a restriction on transfer enforceable under "applicable nonbankruptcy law" for purposes of the 11 U.S.C. § 541(c)(2) exclusion of property from the debtor's chapter 7 bankruptcy estate. The Court held "applicable nonbankruptcy law" language of 11 U.S.C. § 541(c)(2) included federal as well as state law.

IRA’s, however, are not include in ERISA’s transfer restrictions requirement. (IRA’s may nevertheless be exempt, but they are property of the estate.)

In Re Vickers, 954 F.2d 1426 (8^th Cir. 1992)

NRS § 25-1563.01:

Missouri had an exemption very similar to Neb. Rev. Stat. § 25-1563.01 for ERISA-qualified "stock bonus, pension, profit-sharing…or similar plan or contract." 29 U.S.C. § 1144(a) of ERISA does not preempt or supersede this kind of state law exemption, and debtors may claim the state exemption in an opt-out state.

In re Hutton, 893 F.2d 1010 (8th Cir. 1990)

NRS S 25-1563.01:

Hutton construed Iowa's exemption for payments "under a pension, annuity or similar plan or contract." One of the bankruptcy debtors had a "savings and investment plan" with her employer. The plan permitted an employee to contribute a percentage of earnings which the employer would match by fifty percent. The employee would be entitled to the value of the plan at retirement in a lump sum or in installments. The employer described the plan as a plan to encourage long-term savings by employees. This was not the employer's regular pension plan.

Hutton held that the plan was exempt as a "similar plan or contract." This language appears in Neb. Rev. Stat. S 25-1563.01.

At issue in Hutton was whether access or control of the plan or fund was in the hands of someone other than the debtor with strong limitations on withdrawal or distribution expressed in the formal plan or fund for the purpose of providing retirement or deferred income. The plan in Hutton permitted withdrawal prior to retirement in the event of financial hardship, which could include payments for the purchase or improvement of a principal residence. However, because the committee responsible for administering the plan decided whether withdrawal requests qualified as financial hardships, the plan provided the requisite control over withdrawals subject to the discretion of a third party. As the employee had no absolute right to use the funds prior to retirement, the plan qualified as an exempt "similar plan or contract."

Nuttleman v. Myers, 128 B.R. 254 (D. Neb. 1991) (Judge Cambridge), Aff’g, In Re Nuttleman, 117 B.R. 975 (Bankr. D. Neb. 1990) (Judge Mahoney)

NRS § 25-1563.01

NRS § 44-371

Judge Mahoney in In Re Nuttleman decided that 29 U.S.C. § 1144(a) of ERISA does not preempt state law exemptions for pension plan interests (section 25-1563.01) or annuities (section 44-371)

District Court Judge Cambridge did not reach this issue, affirming because the chapter 7 trustee’s objection to the claim of exemptions had not been timely. The "relation back" theory on which Judge Mahoney had found the trustee’s objection timely was rejected by Judge Cambridge, at least in the circumstances of this case.

In Re Pensyl, Neb. Bkr. 96:169 (Bankr. D. Neb. March 5, 1996)

NRS § 25-1563.01

This matter before the Court upon an objection to exemption filed by Omaha City Employees Credit Union. Objection to exemption was overruled. Debtor filed a chapter 7 petition on August 4, 1995. For the past 10 years, the debtor had worked for the City of Omaha. He still was employed and claimed the pension plan as exempt under NRS § 25-1563.01 (Reissue 1989). C, Omaha City Employees Federal Credit Union loaned money to debtor in 1992 and 1993 for a car loan and a personal loan respectively. In exchange debtor granted the creditor a security interest in debtor's saving account and a power of attorney over the future income from the debtor's pension plan. The power of attorney provided that after the debtor terminated his employment with the city, the creditor had the right to have payments from the pension plan.

Court held that pension plan is not property of the estate. The pension plan contains an enforceable restriction on the transfer of the debtor's beneficial interest, and such restriction prevents the pension plan from passing into the bankruptcy estate. Therefore, the Court did not have jurisdiction over the avoidability of the lien of creditor or the right of the debtor to declare the pension plan an exempt.

In Re Anzalone, 122 B.R. 730 (Bankr. D. Neb. 1990) (Judge Mahoney)

NRS § 25-1563.01. Individual Retirement Accounts (IRAs) are exempt as in the nature of pension plans under section 25-1563.01 so long as the requirements of section 25-1563.01 are met ("to the extent reasonably necessary for the support of the debtor and any dependent of the debtor" and "within two years prior to bankruptcy…such…contract was [not] established or…amended to increase contributions by…the individual…."

Anzalone does not address whether or not an IRA "established" within two years prior to bankruptcy is exempt. As IRAs are typically "established" or "amended to increase contributions" annually, it is unclear whether IRA accounts set up within the two years prior to bankruptcy lose their exempt status (even if the support test is met). Anzalone does establish that IRAs established prior to two years before bankruptcy are exempt (to the extent of the support test).

In Re Stratbucker, Bk. No. 88-859, Adv. No. A88-249 (Bankr. D. Neb. April 4, 1989) (Judge Mahoney)

Retirement Funds:

Chapter 7 debtor was a participant in the College Retirement Equities Fund ("CREF") and the Teachers Insurance and Annuity Association ("TIAA"). The CREF-TIAA plan provided a life annuity with payments to begin at age 65 or death benefits upon debtor's pre-age 65 death. Neither contingency had occurred. Moreover, the retirement accounts had anti-alientation restrictions and no present rights of withdrawal. The accounts were the equivalent of a spendthrift trust excluded from property of the estate pursuant to 11 U.S.C. § 541(c)(2).

In re Weaver, 98 B.R. 497(Bankr. D. 1988) (Judge Minahan)

NRS 9 25-1563.01:

Funds held in retirement vehicles are not exempt under section 25-1563.01:

(1) If, and to the extent, they are not "reasonably necessary for the support of the debtor and any dependent of the debtor;" or

(2) Within two years prior to bankruptcy, the plan or contract was:

(a) Established or

(b) Amended to increase contributions by or under the auspices of

the debtor or an insider that employed the debtor; or

(3) The retirement plan or contract is not qualified under 26 U.S.C. SS 401(a), 403(a), 403(b) or 408.

Support Test:

Judge Minahan construed the language "reasonably necessary for the support of the debtor and any dependent of the debtor" within the meaning of section 25-1563.01. In Weaver, the Chapter 7 debtor was a 28 year old male, employed full-time by NPPD, earning $13.64 an hour. He was divorced with a young, noncustodial daughter. His monthly expenses were $1,689.29. Upon his death, term policies of insurance would pay an amount equal to one and one-half times his annual salary. In the event of total disability, his disability insurance would pay sixty percent of his monthly earnings not exceeding $3,000.00 per month. The retirement plan contained $26,365.00 of which $16,711.00 was then vested. The debtor claimed the entire amount of the retirement plan as exempt, and Judge Minahan agreed.

Weaver first notes that no Nebraska cases had interpreted section 25-1563.01, but the legislative history suggested that the statute had been enacted for the general purpose of placing a limitation upon the previously unlimited exemption for annuities and unmatured life insurance. In the absence of Nebraska caselaw, the Court then turned to cases and legislative history interpreting 11 U.S.C. S 522(d)(10)(E) which, in pertinent part, exempts pensions and similar plans "to the extent reasonably necessary for the support of the debtor and any dependent of the debtor" for those states which have not opted out of the federal exemptions.

A split of authority exists concerning whether future needs of the debtor may be considered in determining the extent to which retirement benefits are exempt. One line of authority holds that retirement benefits are exempt only to the extent currently necessary for support, and future needs of the debtor are not to be considered in determining whether or to what extent such benefits are exempt. The other line of authority, however, holds that the exemption for future payments under a retirement plan demonstrates a concern for the debtor's long-term security. Judge Minahan determined that in construing section 25-1563.01, a court should consider the future needs of the debtor and any dependents, and the exemption should be construed to permit retirement plans to serve the intended purpose of providing funds for the debtor and his dependents' future needs.

Weaver then addresses how to determine what is "reasonably necessary" either presently or in the future. First, the appropriate amount to be set aside for the debtor ought to be sufficient to sustain basic needs, not related to his former status in society or the lifestyle to which he is accustomed but taking into account any special needs. In addition, the Court adopted the criteria set forth in In re McCabe, 74 Bankr. 119, 122 (Bankr. N.D. Iowa 1986). These factors are: (1) the debtor's present and anticipated living expenses; (2) the debtor's present and anticipated income from all sources; (3) the age of the debtor and dependents; (4) the health of the debtor and dependents; (5) the debtor's ability to work and earn a living; (6) the debtor's job skills, training and education; (7) the debtor's other assets, including exempt assets; (8) the liquidity of other assets; (9) the debtor's ability to save for retirement; (10) any special needs of the debtor and dependents; and (11) the debtor's financial obligations, e.g., alimony or support payments.

The Court then reviewed other cases which have distinguished between younger and elderly debtors. one case, for example, involved a 44 year old doctor who had the ability to re-establish a retirement fund. Another case, on the other hand, involved a 62 year old unemployed debtor with emphysema who had a 64 year old wife with cancer. In that case, no future earning capacity existed, and the retirement benefits were exempt in full. Even in cases involving younger debtors, full exemptions for retirement benefits have been allowed in light of the number of working years the debtor has left, present income (particularly if it is modest) and future income.

In Weaver, although the debtor was only 28 years old, $26,355.00 was not considered an excessive amount to exempt as "reasonably necessary. of the full retirement benefit, the non-vested amount might be further reduced by federal and state income taxes and penalties if the funds were withdrawn prematurely. In the event of the debtor's death or disability, the funds were modest when compared to the future needs of the debtor and his dependent. In addition, Judge Minahan considered the fact that social security benefits are anticipated to be low and will have to be supplemented by other sources of income to provide adequately for retirement. Thus the retirement funds were reasonably necessary to support the debtor in his old age. Finally, Judge Minahan concluded that while the entire amount of the retirement fund was exempt under section 25-1563.01 from the claims of creditors, the exemption in that statute is not effective against claims for support asserted by a dependent of the debtor. Implicit in the statutory language "reasonably necessary for the support of the debtor and any dependent of the debtor" is a statutory design not to exempt retirement benefits from support obligations.

In Re Barrientos, Bk. No. 93-80089 (Bankr. D. Neb. August 2, 1996)

NRS § 25-1563.02

On January 20, 1993 debtors filed a chapter 13 petition. On the schedules they listed a cause of action but did not state its value. Debtors' confirmed plan had specific language which states as follows: "Presently, the debtor Douglas Barrientos has pending a cause of action in Nebraska arising from an automobile accident. The debtors do not know the value of this claim. The debtors will, if they receive any monetary settlement or judgment from such claim, amend their Schedule B, Schedule C, and plan of reorganization as necessary to provide for the value of such settlement or judgement that may not be deemed as exempt property in this case." Then debtors received $33,000+ in a lump sum settlement and filed on January 13, 1996 an amended Schedule C to exempt under amended statute allowing lump sum. Previous statute said it could only be done through a structured settlement. Debtor argued Nebraska cases saying that exemptions statutes should be liberally construed.

Court sustained the Trustee's Objection to Exemptions. "Debtor's exemptions are determined as of the time of the filing of the petition. Peterson v. Armstrong (In Re Peterson, 897 F.2d 935, 937 (8^th Cir. 1990, In Re Kemp, Neb. Bkr. 87:269 (Bankr D. Neb. November 9, 1987). On the date the bankruptcy petition was filed, the cause of action had already accrued and the statute then in existence as section 25-1563.02 did not provide an exemption for a lump-sum settlement. Neb. Rev. Stat. § 25-1563.02 (repealed 1993). Shortly after the petition was filed, the legislature amended the statute to provide for exemptions for lump sum settlements. Act of 2/16/93, LB 118. However, the Legislature did not specifically state in the language of the statute itself, nor in any legislative history that the amended statute should apply retrospectively which would have permitted a lump sum settlement from a prepetition personal injury claim to be treated as exempt. Id. (stating in section 4 of LB 118 "Since an emergency exists, this act shall be in full force and take effect, from and after its passage and approval, according to law.")."

"In Nebraska, a legislative act operates prospectively and not restrospectively unless the legislative intent and purpose that it should operate retrospectively is clearly disclosed. Young v. Dodge County Bd. Of Supervisors, 242 Neb. 1, 6, 493 N.W.2d 160, 163 (1992). "Statutes covering substantive matters in effect at the time of the transaction govern, not later enacted statutes." Id at 5-6, at 163. The amendment exempting a lump sum settlement made a substantive change in the statute. That amendment came after the date of the petition, and, therefore, the exemption statute in effect on the date of the petition must govern for purpose of this bankruptcy case."

In Re Hitch, Case No. Bk. 86-02464, Adv. No. A88-4053 (Bankr. D. Neb. Aug. 31, 1989) (Judge Minahan)

NRS § 25-1563.02

NRS § 48-149

Section 48-149 exempts payments under the Nebraska Workers' Compensation Act. (However, that Act was not applicable to this case.)

A portion of the debtor's settlement proceeds settling a personal injury claim under FELA included compensation for future wages and future pain and suffering. The entire settlement including the portion allocable to future wages and future pain and suffering constituted property of the estate. 11 U.S.C. § 541(a)(6) does not exclude settlement proceeds for future wages, pain and suffering from the bankruptcy estate.

Section 25-1563.02 exempts proceeds and benefits accruing under a structured settlement providing periodic payments for personal injuries (absent a written assignment of the benefits). The settlement in this case was a structured settlement (even though the Court raised this exemption sua sponte and the debtor had not asserted this exemption). The "structured settlement" required the following payments: (1) an initial payment to the injured party ($215,000, less amounts previously paid for living expenses) and (2) a payment sufficient to purchase an annuity to pay $50,000 in 1998, $100,000 in 2008, and $100,000 in 2013.

HOMESTEAD

R.F. Duncan, "Through the Trap Door Darkly: Nebraska Exemption Policy and the Bankruptcy Reform Act, " 60 Neb. L. Rev. 219 (1981)

NRS § 40-101: Homestead – 4 Requirements (page 235-236)

Head of family

Owner of the property (exception for spouse’s property with consent of spouse)

Reside in the dwelling on the tract

Dollar (pre 1997 amendments changed to $12,500 as of February, 2000, date of this summary)

Stevens v. Pike County Bank, 829 F.2d 693 (8^th Cir. 1987).

Under Arkansas law, married debtors can claim one homestead exemption.

Stumpf v. Roberts, 219 B.R. 235 (B.A.P. 8^th Cir. 1998) Neb. Bkr. 98:223 (Judge Hill) (before Hill. Schermer, and Scott)

ftp://server.wulaw.wustl.edu/8th.cir/980306/976092.P8

The appellate court affirmed the Bankruptcy Court for the District of Nebraska and held that married individuals who had no children nor any other individuals qualifying as dependents living with them were entitled to claim a homestead exemption. Married individuals need not qualify as "head of family" under Neb. Rev. Stat. § 40-115 in order to claim the Nebraska homestead exemption. Only if a claimant is not married, does one need to refer to the definition of "head of household" in Neb. Rev. Stat. § 40-115 to determine if the claimant qualified for the exemption.

In Re Wegner, Bk. No. 95-41324 (Bankr. D. Neb. January 6, 2000) (Judge Minahan)

Debtor had not been eligible for a homestead exemption when she filed chapter 13 because she had not been married and had no equity in her real estate. During the pendency of the confirmed chapter 13 case, the debtor got married and resided in the property with her spouse and acquired equity in the property by making payments and property value escalation. There was no question that she was eligible for the homestead exemption when she converted her chapter 13 case to chapter 7. After the 1994 amendments to 11 U.S.C. § 348(f), the Bankruptcy Court held that when a case is converted from chapter 13 to chapter 7, eligibility for exemptions is determined at the time the case is converted from chapter 13 to chapter 7. Accord, Armstrong v. Lindberg, supra; contra, Alexander v. Jensen-Carter (In Re Alexander), supra. This case also contains a good discussion of the new effects of 11 U.S.C. § 348(f).

In Re Michael, Bk. No. 99-80789 (Bankr. D. Neb. November 16, 1999)

http://www.nebar.com/bankruptcy/MICHAEL.htm

Long prior to the bankruptcy filing, the debtor and her now deceased husband purchased and lived in the Nebraska residence which is the subject of this dispute. Debtor is a registered nurse and at the time of her filing this chapter 13 petition, she worked at the Box Butte General Hospital in Alliance, Nebraska, and lived in Nebraska. After she filed bankruptcy, she got a better paying job in Denver, Colorado. While working in Colorado, the debtor maintained an apartment in Denver while she worked and returned home to the Mitchell, Nebraska home on her days off and when not working, The debtor maintained her home in Nebraska with all of the utilities and lawn maintained. The debtor continued to attend church, pay taxes, and conduct business in Nebraska. Scottsbluff Federal Credit Union (SFCU), a creditor, objected the debtor's homestead exemption claim because SFCU asserted that she was not eligible as her home was in Colorado for the 180 days preceding the filing of her bankruptcy. The Court ruled that the party asserting abandonment of a homestead bears the burden of proof by a preponderance of the evidence. SFCU had not met their burden of proving that the debtor had intended to abandon the homestead.

In Re Kouth, Neb. Bkr. 93:234 (Bankr. D. Neb. 1993) (Chapter 7) (Judge Mahoney)

Debtor and his former spouse owned real property in joint tenancy, and then got divorce. Parties were awarded equal interest in the property as tenants in common with possession to the wife who also had custody of the children. Wife appealed divorce decree to the Nebraska Supreme Court. After the appeal was filed, the debtor borrowed $13,000 from Allen and Gloria Kouth who took a deed of trust in the property. Husband filed a chapter 7; property was sold; and proceeds were retained by chapter 7 trustee who objected to Allen and Gloria Kouth's claim. Chapter 7 trustee alleged that the trust deed was invalid because the debtor and his wife were still married at the time the trust deed was made, and a homestead cannot be encumbered without the signatures of both spouses, and Linda Kouth had not signed the trust deed. The Court overruled the trustee's objection

In Re Bartlett, Neb. Bkr. 93:1 (Bankr. D. Neb. 1993) (Chapter 7) (Judge Minahan)

Bankruptcy Court overruled the objection to debtor's claim of the homestead exemption. The debtor here was entitled to claim a homestead under §§ 40-102 and 40-115. The homestead property was occupied by the debtor as a "head of family," his spouse, and children. Upon such occupancy, the homestead character of the land was established. The homestead character of the land did not change when the debtor was divorced or when his children moved out of the homestead. From the time the homestead was established, the debtor continuously occupied the land, and it was never sold or abandoned. Court held that the repeal of Neb. Rev. Stat. § 40-117 (repealed 1974) was not critical to this decision. Court also ruled that the debtor may not be permitted to assert the homestead exemption against the claims of his dependents for support.

In Re Henry, Case No. Bk. 91-41972 (Bankr. D. Neb. June 15, 1992) (Chapter 13) (Judge Minahan)

NRS § 40-101

The homestead exemption may not be asserted by a widow(er) who lives alone in the residence (even if the dwelling previously had qualified as homestead at some other time).

In Re Stevens, Bk. No. 89-40315 (Bankr. D. Neb. Jan. 31, 1992) (Judge Minahan)

The homestead exemption may be claimed only by the head of household and only as to the residential real property in which the head of household and dependents reside. Here, as the debtor did not reside in the subject property, it could not be claimed as the homestead.

In Re Coonrod, 135 B.R. 375 (Bankr. D. Neb. 1991) (Judge Minahan) (pre 1997 amendments)

NRS § 25-1552

NRS § 40-101

The Nebraska homestead exemption is available only to a head of household and is limited to $10,000. If a head of household does not have a homestead, a $2,500 in-lieu-of-homestead exemption may be claimed. In a joint case, one spouse may claim homestead, and the other, the in-lieu-of-homestead. The maximum which may be claimed is $12,500.

In Re Foulk, 134 B.R. 929 (Bankr. D. Neb. 1991) (Judge Minahan) (pre 1997 amendments)

NRS § 25-1552

NRS § 40-101

The Nebraska homestead exemption is available only to a head of household and is limited to $10,000. If a head of household does not have a homestead, a $2,500 in-lieu-of-homestead exemption may be claimed. In a joint case, one spouse may claim homestead, and the other, the in-lieu-of-homestead. The maximum which may be claimed is $12,500.

In Re Pinkston, 134 B.R. 933 (Bankr. D. Neb. 1991) (Judge Minahan)

Debtor claimed a $12,000 homestead exemption, but Nebraska law allows a maximum of $10,000. Exempt property is excluded from the hypothetical liquidation analysis of 11 U.S.C. § 1325(a)(4). Here debtor's home had a value of $50,000, encumbered by a mortgage of $12,000. Of the $38,000 equity, debtor was entitled to $10,000, leaving $28,000 net equity for creditors.

In Re Tranel, Bk. No. 86-2288 (Bankr. D. Neb. July 31, 1991) (Judge Mahoney

This decision should not have much application to Chapter 13. The Chapter 11 debtors sought to prohibit the trustee from selling their homestead. Under NRS § 40-103, a forced sale of the homestead is allowed so as to satisfy judgments on debts secured by mechanics, laborers, vendors and/or mortgage liens. If there is value in the homestead in excess of the $10,000 exemption amount, a forced sale may take place, and debtors receive the first $10,000 of the sale proceeds. Here, even though the homestead was unencumbered, the trustee could conduct a forced sale and retain all proceeds in excess of $10,000, including the proceeds resulting from post-petition appreciation in the value of the property.

In Re Holtzhauser, 117 B.R. 519 (Bankr. D. Neb. 1990) (Judge Minahan)

NRS § 40-101

Neb. Rev. Stat. § 40-101 exempts the homestead only from general judgment liens arising under Neb. Rev. Stat. § 25-1301 et seq. The exemption does not exempt the homestead from judgment liens arising in divorce proceedings under Neb. Rev. Stat. § 42-371. Moreover, the homestead exemption may not be asserted to defeat the claim of a former spouse for alimony. This limitation extends beyond alimony to "all claims for money judgments under a Nebraska divorce decree, including a claim for child support." Although a homestead exemption may be asserted against other creditors, it may not be asserted against a former spouse (or avoided pursuant to 11 U.S.C. § 522(f) if the judicial lien arises from a divorce decree.

In Re Buzzell, 110 B.R. 440 (Bankr. D. Neb. 1990) (Judge Mahoney)

NRS § 40-101.

The chapter 7 debtors had a long-term lease in the real estate on which their mobile home was located. The debtors claimed as exempt their equity in the real estate lot, mobile home, and garage. The homestead exemption was granted. A homestead claimant must be the owner of a present possessory interest in the property claimed as homestead. This requirement has two facets: (1) Property interest (type of ownership) and (2) "Dwelling house" (type of property).

As to property interest, property need not be held in fee simple. A life estate or leasehold in the homestead tract is sufficient. The leasehold in this case was essentially a life estate (which is capable of supporting a homestead interest). As to type of property, this requirement is construed liberally, e.g., tent, business property, so long as the property is inhabited as the debtors' personal residence. Here the property, a mobile home permanently annexed to the real estate, was a sufficient "dwelling house." The mode of annexation to the realty was a wood addition added to the mobile home.

In Re Nachtigal, 82 B.R. 533 (Bankr. D. Neb. 1988) (Judge Minahan) (pre 1997 amendments)

NRS § 25-1552

Section 25-1552 provides an exemption of $2,500 in personal property with no restriction on the nature or purpose of the property.

NRS § 25-1552 (pre 1997 amendments)

NRS § 40-101

Where one spouse would be entitled to assert the homestead exemption under section 40-101, that spouse may not claim the in-lieu-of-homestead exemption under section 25-1552. The in-lieu-of-homestead exemption is not available to the spouse eligible to claim homestead, even when the homestead is mortgaged to full value.

NRS § 25-1552

When one spouse is eligible to claim homestead, the other spouse in a joint case is entitled to claim the section 25-1552 in-lieu-of-homestead exemption.

NRS § 25-1552 (pre 1997 amendments)

A vehicle may be claimed as exempt under section 25-1552. In a joint case, however, where one spouse is eligible to claim a homestead exemption (and therefore not eligible to claim the in-lieu-of-homestead exemption), the spouse claiming a vehicle under section 25-1552 may do so only to the extent of $2,500 and only if the vehicle is owned by the spouse entitled to claim the in-lieu-of-homestead exemption.

In Re Kemp, Neb. Bkr. 87:269 (Bankr. D. Neb. November 9, 1987) (Judge Mahoney

NRS § 40-101

May a debtor claim the $10,000 homestead exemption provided by state law on the date debtor’s petition was filed when creditor’s lien on the homestead was perfected when state law limited the homestead exemption to $6,500? The Court concluded "yes," and determined that a debtor may exempt any property that is exempt under federal, state, or local law on the date of the filing of the petition. The Court overruled the objection to exemption filed by the FDIC.

In Re Beethe, Case No. Bk. 84-1161 (Bankr. D. Neb. Nov. 2, 1987) (Judge Mahoney)

NRS § 40-101:

NRS § 25-1552

While debtors were in a chapter 11, they claimed real property held under land contract as homestead. After the land contract seller foreclosed, debtors convert to chapter 7 and amended their schedule of exemptions by replacing homestead with personal property under NRS § 25-1552. The amendment of exemptions upon conversion and replacement of homestead with section 25-1552 personal property was upheld over a creditor's objection.

In Re Yochum, Bk. No. 82-1106 (Bankr. D. Neb. June 29, 1983) (Judge Crawford)

Property claimed exempt as homestead should be valued at fair market value, not forced sale value. Section 40-101 exempts to a head of a family equity in the real estate homestead up to the statutory maximum (then $6,500), now $12,500) over and above valid, consensual liens on the property. Any additional equity in the property over and above mortgage lien(s), homestead and tax lien(s) is available for judicial lien(s). Here Judge Crawford concluded that a judicial lien could not be avoided because there was such additional equity, valuing the property at fair market value.

In Re Hartmann, 19 B.R. 844 (Bankr. D. Neb. 1982) (Judge Crawford)

NRS § 25-1552

NRS § 40-101

Only the head of family may claim homestead. In a joint case, that means only one debtor may claim a homestead exemption. The other spouse (co-debtor) may claim the in-lieu-of-homestead exemption under section 25-1552.

In Re Block, CV 85-0-382 (D. Neb. June 11, 1986) (Judge Beam)

NRS § 44-371.

Annuities and proceeds thereof are exempt. Debtor received a Teacher's Annuity Contract in 1974 which matured in 1984. Debtor invested the proceeds of the annuity in savings certificates for her children with debtor and her husband as co-trustees. Four months later debtors filed a chapter 7 petition. The Court held that the savings certificates created a Totten Trust, which is a savings deposit in the depositor's own name as trustee for the benefit of another. Because the debtors had control of the deposits at all times, the funds were property of the debtors' estate. However, the funds were exempt under section 44-371 because the savings certificates were "traceable to" the annuity contract, and, as such, were a form of cash proceeds exempt under section 44-371.

In Re Charles & Patricia Harris, Case No. Bk. 86-1130 (Bankr. D. Neb. Oct. 4, 1988) (Judge Minahan) (pre 1997 amendments; amended by NRS § 11563.02)

Personal Injuries

"Under Nebraska law, there is no exemption for claims for personal injuries or the proceeds thereof."

NRS § 44-754

"Section 44-754 exempts insurance proceeds paid to an insured under his own accident or health plan." (This exemption was repealed in 1989, LB 92)

NRS § 44-371

Section 44-371 "exempts only those proceeds from an insurance policy which are paid to the insured or to beneficiaries who are related to the insured by blood or marriage."

NRS § 44-371

NRS § 44-754

Chapter 13 debtor had an unliquidated automobile personal injury claim which was settled out of court by the tender of $28,050.27 by the insurance carrier for the other driver. Because the debtor was not the insured under the policy which paid on her accident claim, the settlement payment could not be claimed as exempt under section 44-754 (now repealed) or section 44-371. But see current NRS § 1563.02.

In Re Lowe, Bk. No. 85-1778, Adv. No. A86-319 (Bankr. D. Neb. May 18, 1987) (Judge Mahoney)

Section 44-371 provides that an annuity is not exempt if it has been previously assigned. The debtor assigned to a creditor the debtor's right to monthly payments of $500 to which the debtor was entitled pursuant to a settlement and release of personal injury claims with his employer. By assigning to the creditor all of the debtor's rights in the settlement payment (previously held to be an "annuity"), the debtor lost the ability to exempt the payments/annuity at least as against the claims of the creditor-assignee.

In Re Lowe, Bk. No. 85-1778 (Bankr. D. Neb. May 22, 1986) (Judge Mahoney)

The chapter 7 debtor settled his personal injury claims with his employer, a railroad, for a lump sum plus $500 per month for 25 years, any remainder after his death to go to his estate. "Annuity" within the meaning of section 44-371 is not limited to a contract payment made by a licensed insurance company regulated by the State and under the supervision of the Department of Insurance. Annuity is a right to receive fixed periodic payments for life on a term of years. The $500 per month payments were held a private annuity exempt pursuant to section 44-371.

In Re Hitch, Case No. Bk. 86-02464, Adv. No. A88-4053 (Bankr. D. Neb. Aug. 31, 1989) (Judge Minahan) (pre 1997 amendments)

NRS § 25-1563.02

NRS § 48-149

Section 48-149 exempts payments under the Nebraska Workers' Compensation Act. (However, that Act was not applicable to this case.)

A portion of the debtor's settlement proceeds settling a personal injury claim under FELA included compensation for future wages and future pain and suffering. The entire settlement including the portion allocable to future wages and future pain and suffering constituted property of the estate. 11 U.S.C. § 541(a)(6) does not exclude settlement proceeds for future wages, pain and suffering from the bankruptcy estate.

Section 25-1563.02 exempts proceeds and benefits accruing under a structured settlement providing periodic payments for personal injuries (absent a written assignment of the benefits). The settlement in this case was a structured settlement (even though the Court raised this exemption sua sponte and the debtor had not asserted this exemption). The "structured settlement" required the following payments: (1) an initial payment to the injured party ($215,000, less amounts previously paid for living expenses) and (2) a payment sufficient to purchase an annuity to pay $50,000 in 1998, $100,000 in 2008, and $100,000 in 2013. Now amended.

UNEMPLOYMENT COMPENSATION BENEFITS

Mertz v. Rott, 955 F.2d 596 (8^th Cir. 1992)

Failure to schedule state tax refunds anticipated and ultimately received warranted denial of chapter 7 discharge even if the refund was exempt property.

In Re Wallerstedt, 930 F.2d 630 (8^th Cir. 1991)

Missouri had opted out of the federal exemption scheme and has an exemption from garnishment for pre-bankruptcy earnings received by a debtor after the bankruptcy filing date. Chapter 7 debtors claimed their income tax refunds as pre-bankruptcy earnings partially exempt under the state law exemption. The claim of exemption for the income tax refunds was denied. Tax refund resulting from the payment of minimum withholding are not payments of wages or earnings and do not qualify under the state exemption for earnings exempt from garnishment.

In Re Schmidthuber, 18 B.R. 129 (Bankr. D. Neb. 1982) (Judge Crawford)

Chapter 7 debtors amended their exemption schedule after discharge to claim an exemption in an income tax refund. The amendment was not too late, and the exemption was allowed. However, the decision does not disclose the statutory basis for the claimed exemption.

Van Der Heide v. LaBarge (In Re Van Der Heide, 219 B.R. 830 (B.A.P. 8^th Cir. 1998)

http://ls.wustl.edu/8th.cir/Opinions/BAP/980415/976090.P8

This case interprets In Re Garner, 952 F.2d 232 (8^th Cir. 1991). In Missouri, creditors may reach entireties property only if the obligations have been jointly incurred. Since the parties stipulate that Van Der Heide's debts were jointly incurred with his wife, the property is not exempt from attachment by joint creditors.