In re Mark GREATHOUSE, Debtor., United States Bankruptcy Court, D. Maryland, at Greenbelt., 295 B.R. 562, No. 02-24276-DK., June 12, 2003

In re Mark GREATHOUSE, Debtor.

United States Bankruptcy Court, D. Maryland, at Greenbelt.

295 B.R. 562

No. 02-24276-DK.

June 12, 2003.

Richard S. Stolker, Rockville, MD, for Debtor.

Roger Schlossberg, Hagerstown, MD, trustee.

MEMORANDUM OF DECISION

DUNCAN W. KEIR, Bankruptcy Judge.

The Chapter 7 Trustee, Roger Schloss╜berg ("Trustee"), filed an objection to debtor's amended claim of exempt proper╜ty. In that objection, the Trustee takes exception and seeks to prevent the debtor from exempting from administration by the Trustee, the debtor's interest in a sin╜gle family residence owned by the debtor and debtor's spouse (not in bankruptcy), as tenants by the entireties. The residence is located in Maryland.

Section 541(a) of the Bankruptcy Code ¹ provides that all of the debtor's interests in the property owned at the time of the petition in bankruptcy, become property of the bankruptcy estate (with limited exception not applicable to the facts of this case). What interests are held by the debtor in property remains defined by applicable state law. Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979). As in this case, where property is owned by husband and wife, the Court of Appeals of Mary╜land has long held:

By the common law of England, which is the law of this state, except where it has been changed or modified by statute, a conveyance to husband and wife does not constitute them joint tenants nor are they tenants in common. They are, in the contemplation of the common law, but one person, and hence they take, not by moieties, but the entirety. They are each seised of the entirety, and the sur╜vivor takes the whole. As stated by Blackstone, "husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout, et non per my; the consequence of which is, that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor." This has been the doctrine of the common law from an early period of its history ....

Marburg v. Cole, 49 Md. 402, 411 (1878) (citing 2 Bl. Com. 182).

Shortly after the enactment of the pres╜ent Bankruptcy Code, the issue was raised as to what interest in tenants by the en╜tirety property became property of the bankruptcy estate of a spouse who filed a single case (without the co-spouse filing as joint debtor). The United States Court of Appeals for the Fourth Circuit, in Greenblatt v. Ford (In re Ford), 638 F.2d 14 (4th Cir.1981), aff'g In re Ford, 3 B.R. 559 (Bankr.D.Md.1980), determined that the undivided interest of the co-tenant by the entirety filing the bankruptcy petition, be╜came property of the bankruptcy estate. However, because "a debtor's individual creditors could neither levy upon nor sell a debtor's undivided interest in the entire╜ties property to satisfy debts owed solely by the debtor[,] [b]ecause a debtor's inter╜est in tenancy by the entireties property is exempt from process under Maryland law, 'the debtor's interest in property which he holds as a tenant by the entirety may be exempted from the estate .... under [11 U.S.C. ╖ ]522(b)(2)(B).' " In re Bell-Bres╜lin, 283 B.R. 834, 837 (Bankr.D.Md.2002) (quoting In re Ford, 3 B.R. at 576).

Exemption of property from the bankruptcy estate, as permitted under Section 522(b), ² causes the exempted inter╜est in property to exit the bankruptcy estate and be returned to the debtor free of administration by the Trustee. ³

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^2. Pursuant to Section 522(b)(1), Maryland "opted out" of the applicability of the alterna╜tive exemptions set-forth in Section 522(d). Accordingly the exemptions available to the debtor are as provided under federal law excluding Section 522(d), Maryland law, local law, and Section 522(b)(2)(B). See Md. Cts. & Jud. Proc. 11-504(g): In re Canelos , 216 B.R. 159 (Bankr.Md.1997).

^3. However, the property interest remains sub╜ject to any lien encumbering such property interest, unless such liens are avoided by a separate action under an applicable provision of the Bankruptcy Code.

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The Fourth Circuit further focused its holding in Greenblatt v. Ford in its subse╜quent opinion in the case of Sumy v. Schlossberg, 777 F.2d 921 (4th Cir.1985). In that case the Trustee ⁴ objected to the exemption of the debtor's tenants by the entirety interest in property in a case in which there were creditors asserting claims for indebtedness owed jointly by the debtor and the non-filed spouse (co╜tenant by the entirety). As argued by the Trustee in the Sumy case, the rationale for the exemption of the tenants by the entire╜ty interest failed as to joint creditors be╜cause those particular creditors of the debtor could obtain execution against the tenancy by the entirety property for satis╜faction of joint obligations. The Court of Appeals agreed with the position espoused by the Trustee and sustained the objection to exemption, but only for a limited pur╜pose. The Court of Appeals held that the tenant by the entirety interest would be property of the estate and administrable by the Trustee, solely for the benefit of actual joint creditors. Id. at 932.

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^4. The same Trustee as now appears in the instant case before this court.

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In the matter now brought by the Trustee, the Trustee in effect seeks to throw out the limitations laid down by the Court of Appeals in Sumy v. Schlossberg. In this attempt, the Trustee seeks to em╜ploy a recent decision of the United States Supreme Court in United States v. Craft, 535 U.S. 274, 122 S.Ct. 1414, 152 L.Ed.2d 437 (2002), concerning the rights of the United States as a tax collector. For the reasons stated herein below, the Trustee's objection to exemption must be denied.

It has long been established that the United States of America in collecting taxes owed to the Internal Revenue Ser╜vice, is not limited by state law exemp╜tions. See Craft, 535 U.S. at 288, 122 S.Ct. 1414 at 1425-26, 152 L.Ed.2d 437 (citing Drye v. United States, 528 U.S. 49, 59, 120 S.Ct. 474, 474, 145 L.Ed.2d 466 (1999) and United States v. Rodgers, 461 U.S. 677, 701, 103 S.Ct. 2132, 2132, 76 L.Ed.2d 236 (1983)). In the Craft decision, the Court extended this doctrine to property held as tenants by the entireties. In Craft, the Court held that where taxes are owed to the Internal Revenue Service by one spouse, and that spouse has an interest in tenants by the entirety property co-owned with a non-tax debtor spouse, the taxpay╜er's interest constitutes a property right attachable by the United States to collect the tax debt under 26 U.S.C. ╖ 6321. The majority of the Court concluded "that re╜spondent's husband's interest in the entire╜ties property constituted 'property' or 'rights to property' for purposes of the federal tax lien statute. We recognize that Michigan makes a different choice with respect to state law creditors . . . [b]ut that by no means dictates our choice. The interpretation of 26 U.S.C. ╖ 6321 is a federal question . . . ." Id . at 288, 122 S.Ct. at 1425.

The Trustee now argues that because the United States could reach the property interest of the debtor in this case for a tax debt collectable under 26 U.S.C. ╖ 6321, the debtor's interest in the tenancy by the entireties property cannot be exempted for any purpose and notwithstanding the fact that there is no such tax debt in existence. To reach this conclusion the Trustee prin╜cipally relies upon Section 544(a)(2). ⁵ This section of the Bankruptcy Code gives to the Trustee the rights and powers of a hypothetical creditor, that extends credit on the date of the bankruptcy petition, including specifically the right to avoid a transfer, to the extent that such rights are held under non-bankruptcy law by a hypo╜thetical unsatisfied creditor after execution. ⁶ From this provision, the Trustee argues that the Internal Revenue Service is a hypothetical creditor that extended credit at the time of the commencement of the case and obtained at such time an execution against the debtor that was re╜turned unsatisfied. The Trustee then states that he stands in the shoes of such hypothetical tax creditor and acquires all of the rights and powers of such creditor. Included in such right and power, argues the Trustee, would be the hypothetical tax creditor's right to object to the exemption of the tenants by the entirety interest of the debtor under the reasoning of Craft. The Trustee then concludes that the Trustee's objection to exemption should be sustained for the benefit of all creditors of the estate.

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^5. Section 544(a)(2) provides:

(a) The trustee shall have, as of the com╜mencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by- . . .

(2) a creditor that 'extends credit to the debtor at the time of the commencement of the case, and obtains, at such time and with respect to such credit, an execution against the debtor that is returned unsatisfied at such time, whether or not such a creditor exists . . . .

^6. An example of the application of Section 544(a) is discussed in this court's opinion in GAF Linden Employees Federal Credit Union v. Robertson (In re Robertson), 232 B.R. 846 (Bankr.D.Md. a 1999), deciding that a Trustee can take personal property free of the rights of an unperfected security interest for pur╜poses of administering it for the benefit of creditors because the holder of an unperfect╜ed security interest in Maryland is subor╜dinate to a judicial lien creditor.

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The position espoused by the Trustee has been addressed by other courts and rejected, without exception. ⁷ See, e.g. In re Kelly, 289 B.R. 38, 44-45 (Bankr.D.Del. 2003); In re Knapp, 285 B.R. 176, 182-83 (Bankr.M.D.N.C.2002); In re Ryan, 282 B.R. 742, 750 (D.R.I.2002). For example, in Ryan, the court stated "Craft gives no indication that the reasoning therein should be extended beyond federal tax law." 282 B.R. at 750. Likewise, in Kelly, the court concluded that Craft was inappli╜cable to a judgment creditor because of the Court's reliance on the federal tax lien statute. 289 B.R. at 44. The court noted that, in contrast to federal tax law, Dela╜ware law does not permit a judgment against one spouse to attach to that spouse's entireties property. 289 B.R. at 44.

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^7. This court has not been able to locate, nor has the Trustee cited this court to any opinion sustaining the position of the Trustee.

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In Knapp, the Chapter 7 trustee put forth an argument similar to the argument made by the Trustee in this case. The trustee in Knapp objected to the Debtor's exemption of tenants by the entireties property, arguing that the reasoning of Craft should apply to include such proper╜ty as part of the bankruptcy estate. 285 B.R. at 181. Following a determination that North Carolina law did not permit attachment of property held by tenants by the entirety, the court rejected the trust╜ee's argument. Id. at 182. The court found that the power of a federal tax col╜lector to disregard state exemptions has not been expanded to other creditors. Id . at 183. "A bankruptcy filing does not elevate the rights of the hypothetical judi╜cial lien creditor, nor does the trustee stand in the shoes of the IRS. Craft did not add the rights and powers of a hypo╜thetical federal tax lien creditor to Section 544." Id.

Furthermore, the position espoused by the Trustee is directly contrary to the reasoning and the holding of the Fourth Circuit in Sumy and to a provision of the United States Bankruptcy Code. In Sumy , the Fourth Circuit held that if there were actual creditors that under a non-bank╜ruptcy law could reach the debtor's tenant by the entirety interest in the property, objection to that exemption would be sustained but only to the extent of the claims of such actual creditors. 777 F.2d at 932. The Fourth Circuit in Sumy upheld the exemption as to the claims of all other creditors.

In this ease, there are no actual credi╜tors who have a right to execute against the tenants by the entirety interest of the debtor in this property. Notwithstanding the holding in Sumy , the Trustee would have this court find that where only a hypothetical creditor could be posited that could collect from the debtor's interest in the tenants by the entirety property, the exemption totally fails and the property is administrable for all actual creditors, re╜gardless of their rights against the proper╜ty interest. At oral argument the Trustee conceded that such a hypothetical creditor would include not only the asserted hypo╜thetical tax debt, but would include hypo╜thetical joint creditors of the type that were actual creditors in the Sumy case.

Although the Fourth Circuit in Sumy , where actual joint creditors existed, limit╜ed the sustainable objection to exemption of tenants by the entireties interests to that needed by the protection of actual creditors holding recourse against the ten╜ants by the entireties property, here where no such actual creditors exist (tax or other╜wise), the Trustee argues the objection to exemption should be sustained for the ben╜efit of all creditors, none of whom hold rights of recourse against such property.

While the Trustee points to the Craft decision as a recent development in the law justifying his "novel theory," ⁸ the Craft, decision actually makes no change to the jurisprudence effecting the issue pre╜sented. Before Craft it was long recog╜nized that a type of creditor could exist that had recourse to tenants by the entire╜ties property, i.e., a creditor holding a claim owed jointly by husband and wife. See, e.g., In re Ford, 3 B.R. at 575; Phil╜ lips v. Krakower, 46 F.2d 764, 765 (4th Cir.1931). Such joint creditors could have been asserted as a hypothetical creditor in any case. Nonetheless, Sumy limited the trustee's objection to exemption to the ac╜tual claims having recourse to the tenants by the entireties property. What the Trustee now asks this court to do is throw out the limitations Sumy recognizes. In effect, if the Trustee's argument is correct, no tenant by the entirety interest can be exempted in any case because hypotheti╜cally one could always posit a hypothetical tax or joint creditor. That the Trustee has chosen to identify his hypothetical creditor as a tax creditor, instead of a joint credi╜tor, has no bearing on the argument. Consequently, the recognition of the tax collection rights of the United States enun╜ciated in the Craft decision is not material to the decision presented to this court in this case, and is not a development in the law that changes the settled authority on this issue.

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^8. See Transcript of hearing held on May 21, 2003, at p. 5.

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The holding requested by the Trustee would, in effect, overrule the result in Greenblatt v. Ford, as well as the contin╜ued protection of the tenant by the entire╜ty interest against claims of non-joint cred╜itors upheld in Sumy . Indeed such a result would throw out a part of the Bankruptcy Code. 11 U.S.C. ╖ 522(b)(2)(B) includes within allowable exemptions:

Notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate the property list╜ed in either paragraph (1) or, in the alternative, paragraph (2) of this subsec╜tion. In joint cases filed under section 302 of this title and individual cases filed under section 301 or 303 of this title by or against debtors who are husband and wife, and whose estates are ordered to be jointly administered under Rule 1015(b) of the Federal Rules of Bank╜ruptcy Procedure, one debtor may not elect to exempt property listed in para╜graph (1) and the other debtor elect to exempt property listed in paragraph (2) of this subsection. If the parties cannot agree on the alternative to be elected, they shall be deemed to elect paragraph (1), where such election is permitted un╜der the law of the jurisdiction where the case is filed. Such property is ....

(B) any interest in property in which the debtor had, immediately before the commencement of the case, an interest as a tenant by the entirety or joint tenant to the extent that such interest as a tenant by the entirety or joint ....

11 U.S.C. ╖ 522(b)(2)(B).

The ruling for which the Trustee argues would render this provision nugatory. See Pennsylvania Department of Public Wel╜fare v. Davenport, 495 U.S. 552, 562, 110 S.Ct. 2126, 2133, 109 L.Ed.2d 588 (1990) (citing Mackey v. Lanier Collection Agen╜cy & Service, Inc., 486 U.S. 825, 837, 108 S.Ct. 2182, 2189, 100 L.Ed.2d 836 (1988)) ("Our cases express a deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment.").

For the reasons stated above, the Trust╜ee's objection to exemption must be de╜nied. An order conforming to this opinion will be entered.

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