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In re Hendricks (Case No. 06-50335) 5/31/2007

The matter before the Court is the trustee's objection to the debtor's claim of exemption in real property.  The debtor and his non-debtor spouse own two parcels of real property as tenants by the entireties, and the debtor claimed both properties as exempt in his schedules.  Prior to filing bankruptcy, the debtor and his spouse executed a Post-Nuptial Property Settlement Agreement, which provided the debtor with a 60-day option to refinance the couple's credit line deed of trust, removing his wife as an obligor.  In turn, his wife had to convey her interest in the property to the debtor.  The trustee objected to the debtor's claim of exemption in the property, seeking disallowance of any tenancy by the entireties exemption claimed by the debtor.   The trustee sought to sever the tenancy by the entities interest so that the debtor cannot properly claim the property as exempt.  The Court held that the trustee cannot assume the refinancing agreement pursuant to 11 U.S.C. § 365(a) in order to destroy the debtor's tenancy by the entireties interest because the agreement does not constitute an "executory contract."

Date: 
Thursday, May 31, 2007
Category: 
Executory Contract
Exemptions
Chapter: 
7