11 U.S.C. § 522

Section 522(b)(3)(B) allows a debtor to exempt property held as a tenancy by the entirety or joint tenancy only to the extent applicable nonbankruptcy law exempts the interest from process, so the exemption ends when state law terminates that ownership form.

Pli Y Hmok and Jane H Ngoan Ksor · filed 2024-06-24(b)(3)(B)

The Bankruptcy Code, however, includes a tenancy by the entirety exemption. Debtors may use the exemption set forth in 11 U.S.C. § 522(b)(3)(B) to exempt “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 entirety or joint tenant is exempt from process under applicable nonbankruptcy law.” ... Unlike the retirement account exemption, see § 522(b)(4)(C) & (D), there is no further provision that explains how and when the tenancy by the entirety exemption should terminate, but section 522(b)(3)(B), which allows debtors to exempt property owned as tenancy by the entirety “to the extent that such interest . . . is exempt from process under applicable bankruptcy law,” suggests that state law determines the termination of the exemption. ... The voluntary sale of the residence by the Debtors resulted in the termination of the tenancy by the entirety pursuant to state law, and any exemption created by the Bankruptcy Code was extinguished even though the voluntary sale occurred post-petition.

Section 522(b)(3)(B) exempts an interest held as a tenant by the entirety or joint tenant only to the extent that applicable nonbankruptcy law exempts that interest from process; the exemption terminates when state law ends the qualifying property interest.

Peter Eric Steinke and Estate of Adriana Steinke · filed 2024-12-31(b)(3)(B)

Relevant to exemption determination, the reference within § 522(b)(3)(B) to applicable nonbankruptcy law “suggests that state law determines the termination of the exemption.” In re Hmok, 663 B.R. 674, 680 (Bankr. W.D.N.C. 2024). The tenancy by the entireties terminated under North Carolina law upon the death of Ms. Steinke. No exemption can exist without a property interest that fits within that exemption.

Section 522(b)(2)(B) does not exempt a debtor’s interest in entireties property from a joint creditor when applicable state law lets that creditor reach the property.

Chippenham Hospital, Inc. v. Robert E. Bondurant, in Re Robert E. Bondurant, Debtor · filed 1983-09-07(b)(2)(B)

Accordingly, a logical reading of the new exemption provisions, including the phrase “to the extent that such interest as a tenant by the entirety ... is exempt from process under applicable nonbankruptcy law,” leads us inevitably to the same conclusion reached in Krakower.

Section 522(b)(2)(B) does not exempt tenancy by the entirety property from a joint creditor’s claim when applicable state law permits that creditor to reach it.

Community Bank v. Costley (In Re Costley) · filed 1984-05-17(b)(2)(B)

Therefore, as to The Community Bank, a joint creditor, the property is not exempt, however, as to other non-joint creditors and the trustee the exemption is valid, which is most likely why the trustee never administered the property.

Section 522(b)(2)(B) requires a debtor claiming an entireties exemption for personal property to prove that the spouses held it jointly with the intent that the survivor would own it outright.

In Re Marchini · filed 1984-12-14(b)(2)(B)

In the words of the Fifth Circuit, it “ought to be made clearly to appear” not only that the personal property is jointly held by husband and wife, but also that upon the death of one, the survivor would become the sole and complete owner of the property to the exclusion of the children and creditors. That showing cannot be made simply through the self-serving testimony of a debtor or his spouse at a hearing where his exemption claim is under challenge. That showing has not been made here.

Section 522(b)(2)(B) lets a debtor exclude an interest held as a tenant by the entirety when that interest is exempt from process under applicable nonbankruptcy law.

In Re Golub · filed 1987-11-16(b)(2)(B)

In addition to the state law exemption provided in Section 522(b)(2)(A), Debtor is also entitled under Section 522(b)(2)(B) to exclude from his bankruptcy estate “... any interest in property in which (he) ... had, immediately before the commencement of the case, an interest as a tenant by the entirety ... to the extent that such interest as a tenant by the entirety ... is exempt from process under applicable non-bankruptcy law.” (emphasis added).

Section 522(b)(2)(B) permits a debtor to exempt an interest held as a tenant by the entirety or joint tenant when applicable nonbankruptcy law protects that interest from process.

In Re Gorski · filed 1988-04-25(b)(2)(B)

The operative portion of § 522(b) provides that a Debtor may exempt “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 ... is exempt from process under applicable non-bankruptcy law.” 11 U.S.C. § 52(b)(2)(B). The applicable non-bankruptcy law to be applied in the case at bar is that of Pennsylvania. The relevant provisions deny Gorski any entitlement to an exemption in the residence because he is neither a tenant by the entireties nor a joint tenant in the property.

Section 522(b)(2)(B) allows a debtor to exempt an interest in tenancy by the entirety property to the extent applicable nonbankruptcy law exempts it from process.

Jackson v. Leitch (In Re Jackson) · filed 1988-06-29(b)(2)(B)

Section 522 of the Bankruptcy Code permits debtors to elect the federal exemption specified in 11 U.S.C. § 522(d) or the exemptions available under state law (together with certain non-bankruptcy federal exemptions). The debtors elected to exempt property under state law. Section 522(b)(2)(B) of the Bankruptcy Code provides in pertinent part: ... (2)(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 join tenant to the extent that such interest as a tenant by the entirety or joint tenant is exempt from process under applicable non-bankruptcy law. ... The Court agrees with the Bankruptcy Court’s legal and factual analysis of this case. ... Accordingly, for all the reasons previously set forth in this opinion, the Court will enter an order affirming the Bankruptcy Court’s opinion in full.

Section 522(b)(2)(B) does not exempt Missouri tenancy by the entirety property when both spouses are jointly indebted and creditors can reach the property under Missouri law.

In Re Franklin J. Garner, Jr., Debtor. Frank Garner, Margie Garner v. Bruce Strauss, Trustee · filed 1991-12-26(b)(2)(B)

Having failed to qualify as exempt under section 522(b)(2)(B) of the Bankruptcy Code, the stock at issue here is part of Franklin Garner’s bankruptcy estate pursuant to section 541(a) of the Code.

Section 522(b)(2)(B) permits a debtor to exempt entireties property when state law makes it exempt from process.

In Re Welty · filed 1998-01-21(b)(2)(B)

Under § 522(b)(2)(B), a debtor may exempt property held in a tenancy by the entirety if that form of ownership creates an exemption from process under state law.

Section 522(b)(2)(B) lets an individual debtor exempt an interest in tenancy-by-the-entirety property only to the extent that applicable nonbankruptcy law exempts it from process.

Van Der Heide v. LaBarge (In Re Van Der Heide) · filed 1998-04-15(b)(2)(B)

11 U.S.C. § 522(b)(2)(B) allows a debt- or to exempt property held in tenancy by the entirety only if state nonbankruptcy law provides for an exemption: “[A]n individual debtor may exempt from property of the estate ... any interest in property in which the debtor had, immediately before the commencement of the case, an interest as a tenant by the entirety ... to the extent that such interest ... is exempt from process under applicable nonbankruptcy law.” 11 U.S.C. § 522(b)(2)(B).

Section 522(b)(3)(B) permits a debtor to exempt an interest held as a tenant by the entirety to the extent applicable nonbankruptcy law exempts it from process.

Nino v. Moyer · filed 2009-02-18(b)(3)(B)

Section 522 of the Bankruptcy Code allows the debtor to exempt 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 tenant is exempt from process under applicable nonbankruptcy law. ... For the foregoing reasons, the Court reverses the bankruptcy court’s denial of Debtor’s claimed exemption in the Property pursuant to Mich. Comp. Laws §§ 600.5451(l)(o) and 600.6023a.

Section 522(b)(3)(B) permits a debtor to exempt an interest in property held as a tenant by the entirety to the extent applicable nonbankruptcy law exempts that interest from process.

In re Barandiaran · filed 2012-01-27(b)(3)(B)

This provision allows a debtor in bankruptcy to exempt "any interest in property in which the debtor had, immediately before the commencement of the case, an interest as a tenant by the entirety ... to the extent that such interest as a tenant by the entirety ... is exempt from process under applicable non-bankruptcy law."

Section 522(b)(3)(B) does not provide a tenancy by the entirety exemption when only the debtor owns the property.

Al A. Catalano · filed 2021-03-16(b)(3)(B)

The tenancy by the entirety exemption does not apply here because only the Debtor has owned the Property since its purchase.

Section 522(b)(2)(B) allows a debtor to exempt an interest in property held as a tenant by the entirety to the extent that interest is exempt from process under applicable nonbankruptcy law.

In Re Schachne · filed 1980-09-24(b)(2)(B)

As a tenancy by the entirety, the real property is exempt under 11 U.S.C. § 522(b)(2)(B).

Section 522(b)(2)(B) allows a debtor to exempt an interest in tenancy by the entirety property.

Southern National Bank of North Carolina v. Woolard (In Re Woolard) · filed 1981-07-22(b)(2)(B)

However, the tenancy by the entirety is not severed and the debtor may exempt it under section 522(b)(2)(B).

Section 522(b)(2)(B) permits a debtor to exempt an interest held as a tenant by the entirety only to the extent that the interest is exempt from process under applicable non-bankruptcy law.

Matter of Jones · filed 1983-06-29(b)(2)(B)

Section 522(b)(2)(B) requires the Court to determine the nature of the debtors’ interest in the property held as tenant by the entirety and the status of that interest under state law.

Section 522(b)(2)(B) does not exempt tenancy by the entirety equity from claims of joint creditors, while § 522(b)(2)(A) permits applicable federal or state exemptions.

Finneran v. Associates Financial Services (In Re Blair) · filed 1992-07-17(b)(2)(A), (b)(2)(B)

Under Ohio law, property held by the entireties is immune from process by the creditors of either individual tenant, but is susceptible to claims by joint creditors. ... Hence, 11 U.S.C. § 522(b)(2)(B) does not provide an exemption for the claims of joint creditors. However, 11 U.S.C. § 522(b)(2)(A) entitles the Debtor to exemptions provided under § 522(d) or the laws of the state of the debtor’s domicile.

Section 522(b)(2)(B) exempts tenancy by the entirety property from the bankruptcy estate to the extent state law exempts it from process, and section 522(f)(1) permits avoidance of a judicial lien that impairs an exemption.

Bankr. L. Rep. P 75,231 in Re Norbert M. Arango, Debtor. Norbert M. Arango v. Third National Bank in Nashville · filed 1993-04-26(b)(2)(B), (f)(1)

Therefore, incorporating Tennessee law into 11 U.S.C. § 522(b)(2)(B), as required by that subsection, Arango’s bankruptcy estate does not include his present possessory interest in property he holds as a tenant by the entirety, but his bankruptcy estate does include his right of survivor-ship in that property. ... Third National’s lien does not impair, for purposes of 11 U.S.C. § 522(f)(1), any of Arango’s exemptions, and the bankruptcy court and the district court correctly refused to allow Arango to avoid Third National’s lien.

Section 522(b)(2)(B) exempts entireties property only to the extent applicable nonbankruptcy law shields it from creditor process; Florida joint creditors may reach non-homestead entireties property.

Kiester v. Mizrahi (In Re Mizrahi) · filed 1995-03-10(b)(2)(B)

This same distinction continues under section 522(b)(2)(B). Entireties property is not immune from the claims of joint creditors of the husband and wife. Therefore, if there are joint creditors, an interest in non-homestead property held as a tenancy by the entirety is an asset properly included in the bankruptcy estate and subject to liquidation.

Section 522(b)(2)(B) exempts a debtor’s interest in property held as tenants by the entirety to the extent applicable nonbankruptcy law protects it from creditors.

Enterprise Financial Corp. v. Winn (In Re Wincorp, Inc.) · filed 1995-07-24(b)(2)(B)

Under § 522(b)(2)(B) of the Bankruptcy Code, a person is entitled to exclude from the bankruptcy estate “... any interest in property in which the debtor had, immediately before the commencement of the case, an interest as a tenant by the entirety ... to the extent that such interest is exempt from process under applicable nonbankruptcy law.” ... It is clear to the Court that the testimony of Mr. Winn demonstrated that he did, indeed, have the requisite intent with regard to the two bank accounts and bonds to establish a tenancy by the entirety, and the scheduled personalty are therefore determined exempt.

Section 522(b)(2)(B) permits a tenancy by the entirety exemption only to the extent the debtor’s interest is exempt from creditor process under applicable nonbankruptcy law.

Howison v. Hidler (In Re Hidler) · filed 1996-01-16(b)(2)(B)

Because Debtor cannot shield his en-tireties property from his creditors he is not entitled to an exemption in the Danvers property under § 522(b)(2)(B) of the Bankruptcy Code.

Section 522(b)(2)(B) exempts tenancy-by-the-entirety property only to the extent state law protects it from creditors; in Virginia, joint creditors may reach that property.

In Re Shelton · filed 1996-06-10(b)(2)(B)

In general, § 522(b)(2)(B) permits a debtor the ability to exempt from the bankruptcy estate the debt- or’s interest in tenants by the entirety property which is immune from process under state law.

Section 522(b)(2)(B) exempts a debtor’s interest in tenancy by the entirety property only to the extent that applicable nonbankruptcy law protects it from creditors.

United States Trustee v. Duncan (In Re Duncan) · filed 1996-10-23(b)(2)(B)

Therefore, even if this Chapter 7 case were permitted to go forward, (a) none of respondent’s interest in the residence, held with his wife as tenants by the entirety, could be exempted under § 522(b)(2)(B), and (b) a portion of the residence’s value equivalent to respondent’s equity would be available for distribution to his unsecured creditors.

Section 522 exempts entireties property to the extent applicable nonbankruptcy law protects it, but a debtor invoking the Garner rule in a Chapter 13 liquidation comparison may claim only half the state homestead exemption.

In Re Gerard Robert VAN DER HEIDE, Debtor. Gerard Robert Van Der Heide, Appellant, v. John v. LaBarge, Jr., Appellee · filed 1999-03-08(b)(2)(B)

Accordingly, we hold that, if Van Der Heide invokes Gamer in determining whether the bankruptcy court should confirm his Chapter 13 plan, he is only entitled to claim one-half of the total homestead exemption authorized under state law.

Section 522(f)(2)(A) permits a provisional lien avoidance order when the value of a debtor’s tenancy-by-the-entirety interest depends on how the tenancy ends.

In Re Snyder · filed 1999-03-18(f)(2)(A)

The proper focus under § 522(f) is on the extent of the Debtor’s interest when the lienholder becomes free to enforce its lien.

Section 522(b)(2)(B) exempts a debtor’s tenancy by the entirety interest only to the extent that the interest is protected from creditors’ process under the law where the property is located.

In Re Weza · filed 2000-04-24(b)(2)(B)

Section 522(b)(2)(B) does not limit “applicable nonbankruptcy law” to the law of the debtor’s domicile. Rather, the situs of the asset that is held by a debtor as a tenant by the entirety is the sole determinant of whether section 522(b)(2)(B) can protect the property from the claims of creditors. ... Because under Massachusetts common law the Debtor’s interest in the property as a tenant by the entirety is not exempt from process, the Debtor cannot assert an exemption under section 522(b)(2)(B).

Section 522(b)(2)(B) permits spouses filing jointly to exempt entireties property from individual creditors, even when their bankruptcy estates are jointly administered or substantively consolidated.

Bunker v. Peyton (In re Bunker) · filed 2002-11-21(b)(2)(B)

Thus, the presence of individual claims against either or both of the spouses in a joint case does not prevent the debtor spouses from exempting their interests in entireties property under § 522(b)(2)(B).

Section 522(b)(2)(B) exempts Illinois tenancy by the entirety property to the extent of individual debts, but not joint debts.

In Re Tolson · filed 2005-12-30(b)(2)(B)

It follows that Illinois entireties property is exemptible under Section 522(b)(2)(B) to the extent of individual debts, but not to the extent of joint debts.

Section 522(b)(3)(B) allows a debtor to exempt property held by the entirety at filing when a divorce action is pending but no divorce decree has been entered.

Zebley v. Davis · filed 2006-11-27(b)(3)(B)

Because a divorce decree between the Debtor and his wife has yet to be handed down by the relevant state court, the tenancy by the entirety between the Debtor and his wife necessarily existed as of the date upon which he filed for bankruptcy, thereby compelling a holding by this Court that the Residence, as of such date, constituted entireties property that the Debtor may exempt via § 522(b)(3)(B).

For § 522(f) lien avoidance, a New York debtor’s interest in property held as tenants by the entirety is valued at the property’s full fair market value on the petition date.

In Re Levinson · filed 2007-07-24(f)(2)(A)

Accordingly, under New York law, the Debtor is “seized” of the entire Property and for purposes of § 522(f), the value of his interest in the Property, in the absence of any liens, is equal to the fair market value of the Property or $900,000.

Section 522(b)(3)(B) permits spouses to exempt entireties property when separate guaranties and judgments do not create joint liability enforceable against that property.

In re Holler · filed 2011-12-13(b)(3)(B)

The nature of the obligations under the Guaranties, even if the Judgments had not been confessed, does not destroy Debtors’ exemption of their entireties property under Section 522(b)(3)(B) of the Bankruptcy Code.

Section 522(b)(3)(B) does not exempt a beneficial interest in a living trust as entireties property when Michigan law does not treat that interest as a tenancy by the entirety.

Lewiston v. Kohut (In re Lewiston) · filed 2015-08-13(b)(3)(B)

Exemption under § 522(b)(3) depends on whether property is held in a tenancy by the entirety under Michigan law. ... Here, although Lewiston and his wife are both beneficiaries of the Trust, this does not transform the beneficial interest of each into an asset held by the entirety.

Section 522(b)(3)(B) does not exempt a debtor's tenancy-by-the-entirety interest to the extent the IRS could have reached it for the debtor's individual tax debt before bankruptcy, even without a filed lien notice.

In re Browne · filed 2018-12-12(b)(3)(B)

Therefore, the debtor's entireties interest is not exempt under § 522(b)(3)(B) to the extent of the tax claim.

Section 522(b)(3)(B) permits a debtor to exempt tenancy by the entirety property to the extent it is protected from process under applicable state law; the spouses’ joint debt limits the exemption.

Crow v. United States Bankruptcy Court for the District of Wyoming - Cheyenne · filed 2019-11-26(b)(3)(B)

Thus, the Bankruptcy Court’s conclusions that (i) Debtor and Mrs. Crow established and maintained the Account as tenants by the entirety, (ii) the entireties property may be claimed as exempt pursuant to § 522(b)(3)(B) dependent upon the joint debt of the Crows, (iii) one-half of the entireties property should be set aside for Mrs. Crow prior to administration, and (iv) Trustee is required to seek turnover of the entireties property through an adversary proceeding, are hereby AFFIRMED.

Section 522(f) cannot constitutionally be applied to security interests perfected before November 6, 1978, but may be applied to security agreements consummated after that date.

In Re Cunningham · filed 1981-04-29§ 522(f)

For the foregoing reasons, the Court concludes that 11 U.S.C. § 522(f) is unconstitutional as to those security interests perfected prior to November 6, 1978 (enactment date); and it is the further finding here that those security agreements consummated thereafter do not deprive the creditors of due process, and it is constitutionally permissible to apply subsection (f) to those agreements.

Section 522(f)'s lien-avoidance power cannot be applied retroactively to impair vested property rights in certain judgment liens arising before the Bankruptcy Code's effective date.

Society National Bank of the Miami Valley v. Haynes (In re Haynes) · filed 1982-03-23(f)

This case presents the question of the constitutionality of the retroactive application of 11 U.S.C. § 522(f) to judgment liens which first arose during the “gap” period between the enactment and effective date of the Bankruptcy Code. ... It is ’ the determination of the Court that the facts in the case at bar do not justify deviation from this Court’s earlier decisions. ... IT IS HEREBY ORDERED that Plaintiff’s judgment lien is nonavoidable.

Section 522(b)(1) permits a state to opt out of the federal exemptions in § 522(d).

In the Matter of Scott Reynolds Sullivan and In re Willis Wayne West · filed 1982-05-19§ 522(b)(1)

Section 522(b)(1) permits a State to "opt out" of the scheme of federal exemptions enumerated in section 522(d).

Section 522(b)(1) allows a state to make the federal exemptions in § 522(d) unavailable to its residents.

In re Sullivan · filed 1982-05-19§ 522(b)(1)

Section 522(b)(1) permits a State to “opt out” of the scheme of federal exemptions enumerated in section 522(d).

Section 522(b)(2)(B) exempts tenancy-by-the-entirety property only to the extent applicable nonbankruptcy law exempts it from process.

Virginia National Bank v. Martin (In Re Martin) · filed 1982-05-12§ 522(b)(2)(B)

This section allows debtors to exempt tenants by the entirety property to the extent that the property is exempt from process under applicable non-bankruptcy law.

Section 522(b)(2)(B) does not exempt entireties property from joint debts when state law makes that property reachable by joint creditors.

In Re McQueen · filed 1982-05-26§ 522(b)(2)(B)

The obligations listed are joint. It is elementary that the rights of the Debtors in property held by them as an estate by the entirety should be determined by state law.

Under § 522(b)(2)(B), a debtor’s interest is not exempt from process when state law makes both spouses’ interests available to both spouses’ creditors.

Napotnik v. Equibank and Parkvale Savings Association · filed 1982-06-01§ 522(b)(2)(B)

Because the interests of both are available to the creditors of both, the debtor’s interest is not unavailable and thus not “exempt from process” under the law of Pennsylvania.

Section 522(b)(2)(A) fixes the applicable state exemption law when the petition is filed, but in an involuntary case it does not require exempt property to be determined from the facts existing on that date.

Jenkins v. Hodes · filed 2002-12-20(b)(2)(A)

Although the court agrees that § 522(b)(2)(A) locks in place whatever state or local exemption law existed at the time the petition was filed, it does not believe that, in involuntary bankruptcy cases, § 522(b)(2)(A) likewise mandates a focus on the facts as they existed at the time the petition was filed.

Section 522(f) lets a Chapter 13 debtor avoid a nonpossessory, nonpurchase-money household-goods lien, but not a purchase-money lien.

Matter of Mattson · filed 1982-05-14§ 522(f)

I am satisfied that a chapter 13 debtor can use 11 U.S.C. § 522(f) to avoid a nonpurchase-money nonpossessory security interest in household goods. ... Gambles’ purchase-money security interest in the household goods is not avoidable under 11 U.S.C. § 522(f).

Section 522(f) permits avoidance of a nonpurchase-money lien on exempt household goods even when the complaint is filed after discharge.

Brence v. Credithrift of America, Inc. (In Re Brence) · filed 1982-05-21§ 522(f)

The weight of authority, and in the view of this Court, the better reasoned cases do not limit the right of the debtors to seek avoidance of the lien allowed by § 522(f) to the time before the entry of discharge.

Section 522(f) allows avoidance of a judicial lien that would be created through judicial process and would impair an exemption.

Builders and Remodelers, Inc. v. Hanson · filed 1982-05-25§ 522(f)

By the Bankruptcy Reform Act of 1978 and on the advent of the Bankruptcy Code, such a lien right or prospect would result in a “judicial lien” and avoidable by the debtor under the expressed terms of Section 522(f).

Section 522(f) protects exemptions and does not permit a judicially imposed pre-discharge deadline for lien-avoidance complaints.

Barner v. Associates Financial Services Co. (In Re Barner) · filed 1982-05-25§ 522(f)

This court believes that the foregoing criticisms of Adkins and its progeny are valid and that judicially imposed deadlines for filing lien avoidance complaints, with the exception of those promulgated by the U. S. Supreme Court pursuant to its rule making authority, are contrary to congressional intent.

Section 522(f) permits avoidance of a nonpossessory, nonpurchase-money security interest created after the Bankruptcy Reform Act of 1978.

Matter of Hitts · filed 1982-06-15§ 522(f)

U.S.C. Section 522(f) allows the debtor to avoid transactions entered into subsequent to the enactment of the Bankruptcy Reform Act of 1978.

Section 522(f) may be used in Chapter 13 proceedings to avoid qualifying liens that impair an exemption.

Thurman v. CIT Financial Services (In Re Thurman) · filed 1982-06-18§ 522(f)

the Court, en banc, finds that § 522(f) may be used to avoid liens in Chapter 13 proceedings.

Section 522(f) permits avoidance of a judicial lien impairing an exemption, but does not affect a valid mortgage because it is a security interest rather than a judicial lien.

Lowell v. First National Bank of Cape Cod (In Re Lowell) · filed 1982-05-28§ 522(f)

A valid mortgage is a lien, since it is a charge against or interest in property to secure payment of a debt. It is not affected by 11 U.S.C. Section 522(f) because it is a security interest and not a judicial lien and because the charge against or interest in property is created by a conveyance or contract rather than by a judgment or other legal proceeding.

Section 522(f)(2)(A) permits avoidance of a qualifying household-goods lien even when the debtor has no equity in the goods.

Maddox v. Southern Discount Co. (In Re Maddox) · filed 1982-06-10§ 522(f)(2)(A)

A common sense interpretation of § 522(f) with the legislative history of that provision indicates that a debtor may avoid a security interest in property that the debtor could exempt if the security interest did not exist.

Section 522(f)(1) permits avoidance of a judicial lien to the extent it impairs an exemption, measured using remaining equity after consensual or unavoidable liens.

Matter of Asplund · filed 1982-06-11§ 522(f)(1)

Under Section 522(f)(1) a debtor may avoid a judicial lien to the extent that it impairs an exemption that he has taken. ... Thus, the amount of equity Asplund has remaining after all consensual or unavoidable liens must be calculated to determine the value of the exemption.

Section 522(f)(1) allows a debtor to avoid a judicial lien that impairs an exemption.

Commonwealth National Bank v. Dobslaw (In Re Dobslaw) · filed 1982-06-14§ 522(f)(1)

We held that the liens were judicial liens within the meaning of 11 U.S.C. § 522(f)(1) and, therefore, avoidable.

For purposes of § 522(f)(1), the property’s value is determined as of the petition filing date.

Rappaport v. Commercial Banking Corp. (In Re Rappaport) · filed 1982-05-13§ 522(f)(1)

the value of the debtor’s property for the purpose of deciding whether a lien is avoidable under § 522(f) of the Code should be determined as of the date of the filing of the debtor’s petition.

Section 522(f) does not impose a deadline requiring a lien-avoidance complaint before the discharge hearing.

Russell v. United States (In Re Russell) · filed 1982-06-02§ 522(f)

In contrast, § 522(f) is silent on when a complaint to avoid liens must be filed.

Section 522(b)(1) allows an individual debtor to exempt certain property from the bankruptcy estate.

In Re Street · filed 2008-09-30(b)(1)

On the asset side of the balance sheet, § 522(b)(1) exempts certain property from the estate.

Section 522 allows a debtor to exempt certain property from the bankruptcy estate, and available exemptions are fixed at filing.

In re Soori-Arachi · filed 2019-03-26(b), (l)

A debtor's available exemptions under § 522 are determined upon the filing of the petition.

Section 522(b) makes an asset exempt from the bankruptcy estate only when the debtor claims it, no party in interest objects, and a statute authorizes the exemption.

Miller v. Pacific Shore Funding · filed 2002-11-22(b), (1)

An asset is exempt from the bankruptcy estate if: (1) the debtor lists it as a claimed exemption; (2) no party in interest objects; and (3) a statute authorizes the exemption.

Under § 522(b), proceeds that are property of an individual debtor’s bankruptcy estate may be claimed as exempt.

In Re Linderman · filed 1982-05-25§ 522(b)

The remainder of the proceeds of sale of the real property is property of the above entitled bankruptcy estate, 11 U.S.C. § 541(a)(1), (7), and therefore may be claimed as an exemption under 11 U.S.C. 522(b) by the individual debtors herein.

Section 522(d)(1) and (d)(5) permit exemption of attached funds held in escrow when the attachment is invalid and no execution or disbursement order has issued.

In re Hodgkins · filed 1986-06-13§ 522(d)(1), § 522(d)(5)

Accordingly, because the $1,450 is being held in escrow pursuant to an invalid lien, and also because there has been no writ of execution issued and no court order of disbursement, ... the attached funds must be considered property of the estate, which the debtor is entitled to exempt under § 522(d)(1) and (5).

Section 522(b)(2)(A) requires the trustee to honor the debtor’s applicable state-law exemption notwithstanding § 541.

Miller v. Martin (In Re Martin) · filed 1982-05-28§ 522(b)(2)(A)

Section 541, which places all the debtor’s property in the estate, cannot effect any change since § 522(b) requires the trustee to accede to the debtor’s claim of exemption “notwithstanding Section 541 of this title”.

Section 522 permits debtors to exempt only property that is part of the bankruptcy estate; property in which they have no equitable interest cannot be exempted.

In Re Naydan · filed 1993-12-15§ 522 (subsection not specified)

Only if property is included in the bankruptcy estate, may the debtors exempt it pursuant to 11 U.S.C. § 522. Since Connie Jo Naydan’s twenty-four percent beneficial interest in the benefits is not property of the estate, debtors may not exempt those benefits under section 522.

Section 522(b) permits a debtor to exempt property only after it has entered the bankruptcy estate, allowing the debtor to remove from the estate only the property represented by the exemption.

Robertson v. Alsberg (In Re Alsberg) · filed 1993-12-16(b)

Pursuant to Bankruptcy Code § 522, a debtor may claim as exempt certain property of the bankruptcy estate which he or she takes free and clear of any interest of the estate or the claims of creditors. ... His claim of an exemption only allows him to take back out of the estate the property representing his exemption.

A Chapter 7 debtor may exempt property from the bankruptcy estate under the applicable exemption scheme.

Jajuga v. Lukens · filed 1994-03-21(b)(1)

However, after property comes into the estate the debtor is then permitted to exempt property. 11 U.S.C. § 522(b); Payne, 775 F.2d at 204.

The court describes § 522 as protecting exempt property that remains in the bankruptcy estate when the debtor exercises the statutory exemption option.

Eisenberg v. Houck (In Re Houck) · filed 1995-04-19

Property that is excluded from the bankruptcy estate never comes into the estate at all, by operation of law, while exempt property is estate property at all times but is protected from the reach of creditors and administration through the estate if the debt- or exercises the statutory option. 11 U.S.C. § 522.

Section 522(b) applies only to property of the debtor's bankruptcy estate, so property held in a trust for the children and excluded from the estate is not subject to the exemption analysis.

Martinson v. James (In Re James) · filed 1995-08-30(b)

The foregoing analysis disposes of the Chapter 7 Trustee’s averments concerning whether the trust property qualifies as exempt under 11 U.S.C. § 522(b) as well. Obviously, 11 U.S.C. § 522 applies only to property of Debtor’s bankruptcy estate.

Section 522(b) provides that property properly exempted by a debtor is removed from the bankruptcy estate and vests in the debtor.

In re Crockett · filed 1996-12-13§ 522(b)

When a debtor exempts property pursuant to section 522, however, that property is removed from the estate and vests in the debtor.

Section 522(b) permits an exemption only in property that belongs to the bankruptcy estate.

Boston Restaurants — Pa., Inc. v. Nesser (In Re Nesser) · filed 1997-03-07§ 522(b)

An exemption can only be claimed in property of the estate. 11 U.S.C. § 522(b).

Section 522(b) authorizes a debtor to claim exemptions in certain property of the bankruptcy estate, subject to applicable state law.

Gilbert v. Graham (In re Graham) · filed 1997-03-28(b)

Section 522(b) authorizes debtors to claim exemptions in certain property of the estate, depending upon applicable State law.

Section 522(b) lets a debtor choose between the federal exemptions in § 522(d) and exemptions available under state or other federal law.

In Re Tinsley · filed 1997-04-17(b), (b)(1), (b)(2)

Section 522(b) permits a debtor to exempt property under either the federal exemption enumerated in § 522(d), if the state authorized, or those available under state or other federal law.

Section 522(b) permits a debtor to exempt only property that is part of the bankruptcy estate; a tax overpayment consumed by a valid IRS setoff is not estate property and cannot be exempted.

In the Matter Of: Constance Luongo, Debtor. Internal Revenue Service v. Luongo · filed 2001-07-18(b)

Section 522(b) provides that the debtor may exempt certain property “from property of the estate”; obviously, then, an interest that is not possessed by the estate cannot be exempted. ... Because the prior unpaid tax liability exceeded the amount of the overpayment, the debtor was not entitled to a refund and the tax refund did not become property of the estate. Absent an interest in the estate to the refund, it could not properly be exempted by the debtor under § 522.

Section 522(b) permits a debtor to exempt only property that is part of the bankruptcy estate; property outside the estate cannot be exempted under it.

In Re Richardson · filed 2002-10-08(b)

The court answers in the negative. Although no one objected to the exemption, before property can be exempted from property of the estate, it must first be property of the estate. As this opinion will explain, these insurance proceeds were never property of the estate, thus they cannot be exempted from it.

Section 522 permits a debtor to exempt qualifying property from the bankruptcy estate.

In Re Colwell · filed 2003-03-20(b)

certain property may be pulled out of the estate if it qualifies for exemption under § 522.

Section 522(b) permits an individual debtor to claim exemptions from property of the bankruptcy estate, so it does not authorize exemptions in property abandoned after the estate ceases to exist.

In Re Bartlett · filed 2005-06-21(b)

The court would also note that § 522 allows a debtor to claim “exemptions] from property of the estate....” 11 U.S.C. § 522(b). Upon the closing of the case the bankruptcy estate effectively ceases to exist and all scheduled property that has not otherwise been disposed of is abandoned. 11 U.S.C. § 554(c). Consequently, there is no longer an estate from which exemptions may be claimed.

Section 522(b) allows a debtor to exempt property from the bankruptcy estate only if the debtor has a property interest in it that is part of the estate.

Hart v. Crawford (In Re Hart) · filed 2005-10-13(b)

Bankruptcy exemptions under 11 U.S.C. § 522 are only available where there is a property interest in the debtor’s bankruptcy estate from which an exemption may be taken.

Section 522(b) allows a debtor to exempt property from the bankruptcy estate; an unchallenged exemption removes the property from the estate.

In Re Rodriguez · filed 2006-04-24(b)

Given Monica Rodriguez’s claim of exemption to the Mazda and that no objection was filed to the exemption, the car left the bankruptcy estate.

Section 522 permits a debtor to retain exempt property and the right to sell, transfer, encumber, or use it.

DeVeny v. Hadaller · filed 2007-07-10

The debtor retains the right to sell, transfer, encumber, or use any property that is exempt.

Section 522(b) permits a debtor to exempt property from the bankruptcy estate, but an exemption limited to a stated dollar amount does not remove the underlying asset or any excess equity from the estate.

Braunstein v. Leung (In Re Leung) · filed 2008-04-08(b)

A debtor may exempt property from the estate. ... Therefore, those cases do not stand for the proposition that once a debtor has claimed an exemption of a certain dollar amount, the asset is no longer property of the estate even though the value of the asset is higher than the claimed exemption.

Section 522 governs the determination of exemptions from property of the bankruptcy estate; the trustee or a creditor may object to a claimed exemption, and the court determines whether it is valid.

Jenkins v. A.T. Massey Coal Co. (In Re Jenkins) · filed 2008-09-02

After commencement of the case, property of the estate is then administered in a manner consistent with the Bankruptcy Code. Such administration includes determinations as to which properties of that estate are exempt under 11 U.S.C. § 522. Thus, while Plaintiff is correct that the Virginia Code exempts personal injury awards, it is the Trustee’s duty and any creditor’s right to determine whether to object to any claim of exemption, and it is solely within the province of the Court to determine whether any such exemption claimed is valid.

Section 522(b) requires a debtor to claim an otherwise exemptible asset on a schedule; property that is not claimed as exempt remains property of the bankruptcy estate.

In Re Hall · filed 2008-08-21(b)

Therefore, the exemption must be claimed in order to have it be effective. Otherwise, the exemptible property will remain property of the estate.

Section 522(b) governs a debtor’s exemption of estate property; property that is not properly exempted remains in the bankruptcy estate.

In Re Neilsen · filed 2010-04-30(b)

The garnished wages remain property of the estate unless the debtor properly exempts under 11 U.S.C. § 522(b) or an order of abandonment is issued under 11 U.S.C. § 554.

Section 522 permits a debtor to exempt only property that is part of the bankruptcy estate; a tax overpayment that is fully offset before becoming a refund is not exemptible under it.

U.S. Department of Agriculture Rural Housing Service v. Riley · filed 2012-12-21

Because the prior unpaid USDA RHS liability exceeded the amount of the overpayment, the Rileys were not entitled to a refund, and accordingly, the tax refund did not become property of the estate. As such, it could not be properly exempted by the Rileys under 11 U.S.C. § 522. If there remained a balance after applying the statutory scheme in 26 U.S.C. § 6402, the balance would be a tax refund that the Rileys could claim as exempt.

Section 522(b)(1) governs exemptions from property of the bankruptcy estate; it does not govern state-law homestead rights that merely give a family member rights to use, occupy, and enjoy property in which the estate has no interest.

In re Ricciardi · filed 2013-01-15(b)(1)

In short, she is not asserting the kind of exemption to which § 522(b)(1) pertains. I do not hold that § 522(b)(1) would therefore deny this exemption to her; it would not. Rather, I hold only that her homestead rights as a family member arise entirely under state law and not through § 522 of the Bankruptcy Code or as an incident of her bankruptcy filing.

Section 522(b) permits a debtor to exempt only a property interest that belongs to the bankruptcy estate; a debtor with no interest in the property cannot claim it as exempt.

In re: Monae Breece v. · filed 2013-01-18(b)

Debtor holds no specific interest in property owned by Gardinia. Because the exemption statute allows the Debtor to exempt the Debtor’s interest in property used as a residence, and because Debtor has no interest in the Real Property, Debtor cannot claim an exemption therein.

Section 522(b) allows a debtor to exempt property from the bankruptcy estate under the applicable federal or state exemption scheme, and an allowed exemption removes the property from the estate and revests it in the debtor.

Schlotzhauer v. Morton · filed 2015-07-30(b)

The bankruptcy code sets forth a list of items that a debtor may exempt from the property of the estate (see 11 U.S.C. § 522(b)), but also permits each state to opt out of the federal scheme and to enact a set of exemptions for its own citizens. In re Dobbins, 249 B.R. 849, 851 & n.3 (Bankr. D. Md. 2000). Maryland has opted out of the federal scheme. Id. n.3; see Md. Code (1974, 2013 Repl. Vol., Supp. 2014) § 11-504(g) of the Courts and Judicial Proceedings Article (“CJP”). “[T]herefore Maryland residents who file bankruptcy are limited to the exemptions provided under state statutory law.” In re Dobbins, 249 B.R. at 851-52. These exemptions include the exemption in CJP section 11-504(b)(2) for “money payable in the event of sickness, accident, injury, or death of any person, including compensation for loss of future earnings.” ... Here, the trustee did not abandon the claim, as he did in Horn; rather, in the first decision, the bankruptcy court ruled that the claim was no longer the property of the bankruptcy estate because it was exempt from the claims of Schlotzhauer’s creditors. Nevertheless, the effect is exactly the same in both cases. Whether through abandonment by the trustee or through the allowance of the exemption by the bankruptcy court, the debtor reacquired her claim by operation of law; she was not required to file an entirely new action. To the extent that the circuit court based its rulings on a contrary conclusion, it was incorrect.

Section 522(b)(1) authorizes exemptions only from property of the bankruptcy estate.

In re Yelverton · filed 2017-01-04(b)(1)

Further, because the Homeplace tract is not property of the bankruptcy estate, appellant’s claim of exemption is without effect.

Section 522(b)(1) permits an individual debtor to exempt only property of the estate; funds no longer in the estate after a setoff cannot be exempted under § 522.

Ball v. United Cumberland Bank (In re Ball) · filed 2017-07-17(b)(1)

Section 522 describes property exemptions that debtors may claim. But § 522 only applies to property of the estate. 11 U.S.C. § 522(b)(1) (“Notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate. ..”). The Funds are no longer part of the estate as a result of the setoff. Further, Ball has not even claimed the Funds as exempt on Schedule C in the main case. Section 522 does not support the relief sought.

Section 522(b)(3)(B) requires application of applicable nonbankruptcy law to determine whether a debtor's interest in jointly owned property is exempt, so a survivorship interest in a tenancy in common does not preclude a homestead exemption when state law permits levy on that interest.

In re Roos · filed 2018-09-14(b)(3)(B)

The Court, therefore, finds that the survivorship interest has no impact on the availability of the homestead exemption and Debtor may claim the homestead exemption in his whole interest in the jointly owned Property.

Section 522(b)(1) excludes exempt property from property of the estate, § 522(b)(3)(A) makes the exemption applicable as of the petition date, and § 522(f)(1) permits lien avoidance on the debtor’s interest independently of the estate’s interest.

Vessillo v. SUNTRUST BANK · filed 2022-01-03(b)(1), (b)(3)(A), (f)(1)

Exemptions apply as of the petition date. See 11 U.S.C. § 522(b)(3)(A). ... Exempt property, however, is not property of the estate. See 11 U.S.C. § 522(b)(1). Therefore, the Homestead is not now, nor has it ever been, property in which the Estate has an interest. ... Relief under § 522(f)(1) is, therefore, entirely independent from the estate’s interest in the property, while § 506(a) relief is entirely dependent on it.

Section 522(b) permits an individual debtor to exempt certain property from the bankruptcy estate, free and clear of creditors' or competing claimants' claims.

In Re Alicia Marie Richards · filed 2023-09-06(b)

Under 11 U.S.C. § 522, “an individual debtor may exempt from property of the estate” certain property that she takes free and clear of the claims of creditors or other competing claimants. 11 U.S.C. § 522(b); Alsberg, 161 B.R. at 683. “[P]roperty cannot be exempted unless it is first property of the estate,” but “[o]nce property is exempted, its status as property of the estate is terminated.” In re Heintz, 198 B.R. 581, 585–86 (B.A.P. 9th Cir. 1996).

Section 522(b)(1) allows a debtor to exempt eligible property from the bankruptcy estate, but property excluded from the estate under § 541(c)(2) need not be exempted.

Shirley T Sherrod · filed 2024-03-14(b)(1)

An exemption is an interest withdrawn from the estate (and hence from the creditors) for the benefit of the debtor.” ... Accordingly, a debtor can only withdraw a property interest from the bankruptcy estate using an exemption if such property is already included in the estate. ... Thus, before the Court can assess Debtor’s claim of exemptions as it pertains to the Pension Plan, it must first make a preliminary determination of whether Debtor’s interest in the Pension Plan is property included in the bankruptcy estate. ... Thus, “if the right to receive the payment is attributable to the debtor’s interest in an ERISA-qualified plan, there is no need to claim an exemption.” ... Because “[p]roperty which may be exempted from the bankruptcy estate becomes so only after first having been property of the estate,” McBride, 347 B.R. at 588 (emphasis theirs), claiming an exemption under the South Carolina exemption statutes is unnecessary if Debtor’s Pension Plan interest is not property of the bankruptcy estate in the first instance.

Section 522(b) and the applicable conversion rules govern exemption claims in a bankruptcy case converted from one chapter to another.

Ali A Saberioon · filed 2024-03-15(b), (b)(2)(A)

Exemptions claimed in converted cases are governed by sections 522(b) and 348(a) of the Bankruptcy Code.

Section 522(g)(1)(B) limits a debtor's exemption for property concealed by the debtor.

Matter of Howard · filed 1980-09-23(g)(1)(B)

Even though the provision of 11 U.S.C. § 522(g) is somewhat ambiguous because of the other sections of the Bankruptcy Code therein referred to, the mention of concealed property in § 522(g)(1)(B) waxes little sense in view of prior Section 6 of the Bankruptcy Act and case precedents unless such prior principles of law have been contemplated. Since this court sits in equity (28 U.S.C. § 1481) a debtor is under a duty to do equity and comply with mandatory duties to disclose all assets. To incur the effect of § 522, a concealment without a transfer should be equally reprehensible and fraudulent.

Section 522(b) permits a debtor to exempt only the debtor’s equity in property subject to a security interest.

In Re Morgan · filed 1980-10-27(b)

It is important to note that the conclusion reached herein is derived from subsection (b) of § 522, which contains the general operative exemption provisions of this new law. Thus, it is applicable whether a debtor utilizes bankruptcy or nonbankruptcy exemptions. In either event, a debtor may exempt only his equity in property subject to a security interest.

Section 522(b)(1) allows a debtor to claim applicable property exemptions.

Turpin v. Maupin (In Re Maupin) · filed 1983-02-07(b)(1)

Debtor has failed to demonstrate any impairment of Debtor’s exemptions, particularly in the real estate, (which is presumably subject to Debtor’s homestead exemption of $5,000.00, leaving Debtor with approximately $95,000.00 to satisfy Plaintiff’s $8,000.00 claim). 11 U.S.C. § 522(b)(1); O.R.C. §§ 2329.66(A)(1) and 2329.662.

Section 522(b) permits a debtor to exempt property only if it belongs to the bankruptcy estate.

In Re Freeman · filed 1999-06-28(b)

However, no property may be exempted unless it falls within the bankruptcy estate.

Section 522(b)(1) allows a debtor to exempt only property of the bankruptcy estate.

In Re Sanon · filed 2009-02-11(b)(1)

It is elementary and beyond peradventure that only properties which are properties of the Debtor’s estate may be claimed under Section 522 of the Bankruptcy Code as exempt.

Section 522(b) permits a debtor to exempt only property of the bankruptcy estate; property held in trust for another cannot be exempted.

Stewart Ray Dudley · filed 2019-03-19(b)

Therefore, the Debtor’s attempts to exempt the Outstanding Policies are due to be disallowed based on prior rulings that found the Outstanding Policies are not the Debtor’s property and thus also not part of this bankruptcy estate.

Section 522(d)(10)(E)(iii) permits exemption of qualified ERISA funds reasonably necessary for the support of the debtor and dependents.

Clotfelter v. Ciba-Geigy Corp. (In Re Threewitt) · filed 1982-05-25§ 522(d)(10)(E)(iii)

Section 522(d)(10)(E)(iii) grants the debtor an exemption in ERISA funds ... reasonably necessary for the support of the debtor and any dependent of the debtor ..., if the ERISA funds are qualified under the Internal Revenue Code (26 U.S.C. §§ 401(a), 403(a), 403(b), 408 or 409).

Section 522(d)(10)(E) exempts qualifying pension plans under the listed Internal Revenue Code provisions.

Eisenberg v. Baviello (In Re Baviello) · filed 1981-07-01§ 522(d)(10)(E)

Section 522(d)(10)(E), however, specifies an exemption for plans which are ‘qualified plans’ under section 401(a), 403(a), 403(b), 408 or 409 of the Internal Revenue Code.

A secured creditor’s vested property rights make section 522(f) unconstitutional as applied to a lien created before the Code’s effective date.

Matter of Harris · filed 1981-07-01§ 522(f)

The creditor had acquired substantive rights in specific property and hence 11 U.S.C. § 522(f) deprives a secured creditor of his property interest.

A debtor may recover under section 522(h) the portion of a prepetition setoff that the trustee could have recovered under section 553(b) when the funds were claimed exempt and the trustee did not act.

Duncan v. First Heritage Bank of Loudon County (In Re Duncan) · filed 1980-11-07§§ 522(g), 522(h)

Since the property was claimed as exempt under § 522(d), and the setoff was not a voluntary transfer, the debtor may recover the amount of $162.23.

A materialman’s lien arising automatically under state law is a statutory lien, not a judicial lien, and is not avoidable under section 522(f).

Evans Products Co. v. Ribeiro (In Re Ribeiro) · filed 1980-11-10§ 522(f)

Accordingly, this Court finds that plaintiff’s lien, created by Mass.Gen.Laws Ch. 254 is a classic materialman’s lien, not subject to avoidance under Section 522(f) of the Bankruptcy Code.

Section 522(d)(10)(E) includes individual retirement plans as “similar plans or contracts” and exempts them to the extent reasonably necessary for the debtor’s support, subject to the exception in subparagraphs (i)-(iii).

In Re Hall · filed 1993-02-18(d)(10)(E), (d)(10)(E)(i)-(iii)

Because Congress specifically referred to the tax code section establishing individual retirement plans in § 522(d)(10)(E)(iii), it is evident to this court that individual retirement accounts and individual retirement annuities are also considered “plans or contracts” under the Bankruptcy Code. ... Therefore, this court holds individual retirement plans are exempt under § 522(d)(10)(E) to the extent reasonably necessary for support of the debtor.

Section 522(d)(10)(E) allows an IRA to be exempted only to the extent it is reasonably necessary for the debtor’s support, as determined from the facts of each case.

In Re Bogart · filed 1993-05-11(d)(10)(E)

In determining whether an IRA is exempt property under the statute, the Court must determine if the IRA or any portion thereof, is reasonably necessary for the Debtor’s support. 11 U.S.C. § 522(d)(10)(E). Reasonable necessity of the funds for a debtor’s support is a factual determination to be made on a case by case basis.

Section 522(d)(10)(E) allows a retirement-plan payment to be exempted only to the extent reasonably necessary for the debtor’s and dependents’ support, assessed using factors such as age, employment, future employment prospects, and health.

Bohm v. Brewer (In Re Brewer) · filed 1993-05-17(d)(10)(E)

Several considerations should be taken into account when determining whether a claimed exemption is “reasonably necessary” for purposes of § 522(d)(10)(E). Debtor’s age, present employment, future employment prospects, and general health should be considered.

Section 522(d)(10)(E) does not require pension-plan payments to have begun before the petition date.

In Re Marsella · filed 1995-11-14(d)(10)(E)

For the reasons given and discussed at length in these eases, we agree with ... Yee ... and ... Cilek, ... and hold that § 522(d)(10)(E) does not require a debtor to begin receiving payments under a pension plan ... before ... the petition was filed in order to qualify for the exemption.

Section 522(d)(10)(E) cannot exempt the TDAC because the court excluded it from the bankruptcy estate under § 541(c)(2).

In Re Johnson · filed 1996-01-10(d)(10)(E)

Technically, this will result in this court sustaining the Trustee’s objection to the exemption since the exemption claim under 11 U.S.C. § 522(d)(10)(E) would not be applicable once the property is excluded from the estate.

Section 522(d)(10)(E) does not exempt the debtor's IRA because the debtor was not entitled to claim that exemption.

In Re Rosencranz · filed 1996-03-21(d)(10)(E)

The Debtor is not entitled to an exemption in the IRA’s pursuant to 11 U.S.C. § 522(d)(10)(E).

Section 522(d)(10)(E) exempts annuity payments only when the right to receive them is on account of illness, disability, death, age, or length of service, so lottery payments do not qualify.

In Re Neto · filed 1997-11-24§ 522(d)(10)(E)

The debtor’s right to receive payments is not conditioned on any of the factors listed and while the State has purchased a legitimate annuity in the name of the debtor, it is not of the type provided under § 522(d)(10)(E) and is therefore not exempt.

Section 522(d)(10)(D) exempts an alimony lien to the extent it is reasonably necessary for the debtor’s support.

In Re Bentley · filed 2000-01-10(d)(10)(D)

The court concludes that the judgment lien is exempt as alimony to the extent it is reasonably necessary for debtor’s support.

Section 522(d)(10)(E) permits a debtor to exempt a qualified IRA even if the IRA allows access before the debtor reaches the relevant age.

Jurgensen v. Chalmers · filed 2000-01-31(d)(10)(E)(iii)

Yet, viewing the “on account of’ factors in light of the negative implication of subsection (iii), the Court concludes that notwithstanding the apparent plain meaning of “on account of,” with regard to the factor of age, the relevant text and scheme of § 522(d)(10)(E) contemplate the exemption of qualified IRAs from the bankruptcy estate.

Section 522(d)(10)(E) exempts a debtor’s right to receive pension-plan payments, but the exemption does not cover funds received before the bankruptcy case begins.

In Re McCollum · filed 2002-08-29(d)(10)(E)

The plain language of section 522(d)(10)(E) states that any funds due a debtor under an exempt pension plan or contract lose their exempt character once the debtor receives the funds.

Section 522(d)(10)(E) exempts a debtor’s right to payments under an annuity or similar plan only when the payments are on account of illness, disability, death, age, or length of service and are reasonably necessary for support.

In Re Weidman · filed 2002-10-25(d)(10)(E)

Courts have generally applied a three-part test to determine whether an asset is exempt under § 522(d)(10)(E). The right to payment is exempt only if the payments: ... (1) are received pursuant to a “stock bonus, pension, profit sharing, annuity, or similar plan or contract,” ... (2) are “on account of illness, disability, death, age or length of service,” and ... (3) are reasonably necessary for the debtor’s support or for the support of a dependent of the debtor.

Section 522(d)(10)(E) permits debtors to exempt qualifying IRA assets from the bankruptcy estate.

Rousey v. Jacoway · filed 2005-04-04(d)(10)(E)

The Bankruptcy Code permits debtors to exempt certain property from the bankruptcy estate, allowing them to retain those assets rather than divide them among their creditors. 11 U. S. C. § 522. The question in this case is whether debtors can exempt assets in their Individual Retirement Accounts (IRAs) from the bankruptcy estate pursuant to § 522(d)(10)(E). We hold that IRAs can be so exempted.

Section 522(d)(10)(E) requires a qualifying plan or contract, payment on account of a listed event, and reasonable necessity for the debtor’s or a dependent’s support before the interest can be exempted.

In Re Michael · filed 2005-08-03(d)(10)(E)

Section 522(d)(10)(E) provides that a fund must satisfy the following three requirements before qualifying for an exemption: (1) the right to receive payments under the plan must be from “a stock bonus, pension, profitsharing, annuity, or similar plan or contract”; (2) the right to receive payment under the plan must be “on account of illness, disability, death, age, or length of service”; and (3) the right to receive payment must be “reasonably necessary for the support of the debt- or and any dependent of the debtor.”

Section 522(d)(10)(E) includes a present right to receive future payments from a qualifying plan or contract and can apply to the corpus of a qualified asset.

Goodman v. Bramlette (In Re Bramlette) · filed 2005-09-30(d)(10)(E)

This Court reads the case (for reasons discussed below) as establishing ... that the “right to receive payment” from a plan or contract specified in § 522(d)(10)(E) includes the current right to receive payment in the future and that, as such, the § 522(d)(10)(E) exemption applies to a debtor’s interest in the corpus of a qualified asset.

Section 522(d)(10)(E) does not exempt IRA funds beyond what is reasonably necessary for the debtor’s support and that of dependents.

Walsh v. Benson (In Re Benson) · filed 2007-03-26(d)(10)(E)

We conclude in light of the foregoing that it is far more likely than not that the portion of debtor’s IRA he seeks to exempt pursuant to § 522(d)(10)(E) is not “reasonably necessary” for the support of debtor and his dependents within the meaning of that provision.

Section 522(d)(10)(E) exempts a debtor’s right to receive qualifying pension payments, but not pre-petition payments already received and deposited in an account.

In Re Schena · filed 2010-10-14(d)(10)(E)

Interpreting the statute with respect to its plain language, those funds due to a debtor under § 522(d)(10)(E) plans lose their exempt character once the debtor receives payment. ... Limiting § 522(d)(10) exemptions to only payments due is supported by comparing § 522(d)(10) with the later added § 522(d)(ll)[providing an exemption for the right to receive and traceable proceeds of particular property]. ... Congress therefore did not intend to allow debtors an exemption under § 522(d)(10) for pre-petition proceeds received from a qualified retirement fund.

Section 522(d)(10)(E) exempts an annuity when its payments substitute for wages and are reasonably necessary for the debtor’s support.

Bruce Raymond Wainer, Sr. and Stella Thalmer Wainer · filed 2021-11-16(d)(10)(E)

The better approach to determining whether an annuity falls with the statutory ambit of §522(d)(10)(E), in my view, is simply to follow the Supreme Court’s analysis in Rousey. An annuity is exemptible if the payments provide a substitute for wages.

Section 522(d)(10)(E) exempts annuity payments only when they are on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for support.

In Re Miller · filed 1982-01-22(d)(10)(E)

The Code expressly provides that the only form of annuity contract subject to exemption is one “on account of illness, disability, death, age, or length of service.” 11 U.S.C. § 522(d)(10)(E) (Supp. IV 1980). This is not such an annuity contract, and is therefore not exempt under § 522(d)(10).

Section 522(d)(10)(E) exempts a debtor’s right to receive payments under a qualifying pension plan when reasonably necessary for the debtor’s support.

In Re Robert H. Clark, Debtor. Robert H. Clark v. Thomas J. O'neill, as Trustee. Robert H. Clark · filed 1983-06-29(d)(10)(E)

The exemption of present Keogh payments, to the extent they are necessary for the support of the debtor, is consistent with this goal. The exemption of future payments, however, demonstrates a concern for the debtor’s long-term security which is absent from the statute.

Section 522(d)(10)(E) permits exemption of stock bonus plan payments when reasonably necessary for the debtor’s support, unless all listed exclusion characteristics apply.

In Re Johnson · filed 1984-01-11(d)(10)(E)

The Bank argues that this is not a pension, but mere savings, and does not qualify under § 522(d)(10)(E). However, a stock bonus plan is clearly ex-emptible under that section, if necessary for support of the debtor, unless it exhibits the characteristics enumerated in 522(d)(10)(E)(i) thru (iii).

Section 522(d)(10)(E) exempts a debtor’s right to receive qualifying plan payments only to the extent reasonably necessary for support, and it does not apply when the debtor has no present right to receive payments.

Matter of Tisdale · filed 1990-03-16(d)(10)(E)

The debtor’s final contention is that if the DCA funds are property of the estate, he is entitled to exempt them under § 522(d)(10)(E). In re Clark, 711 F.2d 21 (3rd Cir.1983), holds that § 522(d)(10)(E) only applies where the debtor has a present right to receive payments from the pension plan. Here, the debtor concededly did not. ... Even if the court considers the matter of the debtor’s future needs for the funds, the record does not support a finding that the “reasonably necessary” standard has been met.

Section 522(d)(10)(E) exempts qualifying payments made on account of illness, disability, death, age, or length of service when reasonably necessary for support.

Wallick v. Rhode Island State Lottery Commission (In Re Skog) · filed 1992-08-27(d)(10)(E)

We fully agree, and conclude based on the record before us, that the Debtors have not established an allowable exemption under § 522(d)(10)(E).

Section 522(d)(10)(E) permits exemption of retirement plan payments, including an IRA, to the extent reasonably necessary for the debtor's and dependents' support.

In Re Sisco · filed 1992-11-16(d)(10)(E)

In applying the Flygstad factors to Mr. and Mrs. Sisco’s case, the facts establish that the debtors’ IRA is reasonably necessary for the support of the debtors and their dependents. ... Based on these facts, the debtors’ IRA is reasonably necessary for the support of the debtors and their dependents.

Section 522(d)(10)(E) exempts the right to receive a qualifying retirement plan payment, but the funds lose that exemption once the debtor receives them.

In Re Cesare · filed 1994-07-01(d)(10)(E)

Under the plain language of the statute, then, any funds due a debtor under such a plan or contract lose their exempt character once the debtor receives the funds.

Section 522(d)(10)(E) exempts pension plan payments only to the extent reasonably necessary to support the debtor or a dependent.

Kornfield v. Schwartz · filed 1997-11-07(d)(10)(E)

The Bankruptcy Code makes pension plan payments exempt only “to the extent reasonably necessary for the support of the debtor and any dependent of the debtor ...” 11 U.S.C. § 522(d)(10)(E).

Section 522(d)(10)(E) exempts certain retirement-plan payments payable on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for support.

In Re Madia · filed 2003-02-14(d)(10)(E)

Even with this opt-in provision, it is clear that the plain language of this Section of the Code leaves no doubt that it fails to support the Debtors’ claim based on Section 522(d)(10) of the Code. The non-availability of this exemption to the Debtors is evident for the simple reason that the deferred compensation is not payable to him on account of any of the bases set forth in this Section.

Section 522(d)(10)(E) can exempt a qualifying annuity or IRA that is reasonably necessary for support even if the debtor is neither receiving nor presently entitled to receive payments from it.

Makoroff v. Booth (In Re Booth) · filed 2005-10-13(d)(10)(E)

Therefore, it matters not when considering whether the Annuity and the IRA may be exempted under § 522(d)(10)(E) whether the Debtors are receiving, or are presently entitled to receive, payments therefrom. ... Therefore, the Court concludes that the Annuity and the IRA are reasonably necessary for the support of the Debtors.

A Chapter 7 debtor may use § 522(h) to exercise the trustee’s avoidance powers when the statutory conditions are met, including an involuntary transfer the trustee does not pursue.

Kronz v. Cech (In Re Romano) · filed 1994-12-06§ 522(h), § 522(g)(1)

chapter 7 debtor may assert the trustee’s avoidance powers by way of § 522 of the Code, which provides in relevant part that: ... (2) the trustee does not attempt to avoid such transfer.

Section 522(g)(1)(A) bars an exemption in property voluntarily transferred before bankruptcy, even if the transfer was made in good faith and later avoided.

Matter of Ziegler · filed 1982-05-26§ 522(g)(1)(A)

If there is a voluntary transfer, as herein, the exemption is deemed waived, and it is not a condition that the transfer be fraudulent or avoidable by a Trustee in Bankruptcy.

Section 522(i)(2) does not permit exemption of funds voluntarily transferred by the debtor.

Ragsdale v. Credithrift of America, Inc. (In Re Derritt) · filed 1982-05-31§ 522(i)(2)

the court notes that 11 U.S.C. § 522(i)(2) does not permit the exemption of any funds that were voluntarily transferred by the debtor.

Section 522(h) permits a debtor to exercise the trustee’s avoidance powers under § 544 when the trustee does not act and the property could have been exempted.

Home Life Insurance Co. v. Jones (In Re Jones) · filed 1982-06-21§ 522(h)

Section 522(h) permits the debtor to exercise the trustee’s avoidance powers under § 544 if the trustee does not attempt to do so and if the property in question could have been exempted by the debtor.

Section 522(h) lets a debtor exercise the trustee’s avoidance powers when the trustee elects not to do so.

In Re Burns · filed 1995-07-07(h)

allows the debtor to exercise these avoidance powers if the trustee elects not to do so.

A debtor who avoids a lien under § 522(h) may exempt the recovered property under § 522(i)(1) as though the trustee had avoided the transfer.

In Re Brennan · filed 1997-04-25(h), (i)(1)

Once the hens were avoided under § 522(h), the debtors became entitled to exempt the property so recovered pursuant to § 522(i), which allows a debtor to exempt property recovered as a result of avoidance under § 522(h) “the same as if the trustee had avoided such transfer____.” 11 U.S.C. § 522(i)(l).

Sections 522(h) and (i) let a debtor, under specified conditions, exercise a trustee's avoidance power and exempt recovered property when the trustee does not do so.

Creditway of America v. Phillips (In re Phillips) · filed 1985-12-16(h) and (i) (h)(2) and (i)

The Debtor has a right under 11 U.S.C. § 522(h) and (i), upon specified conditions, to stand in the shoes of a Trustee and recover property, as well as exempt it, if the Trustee does not exercise the power. 11 U.S.C. § 522(h)(2) and (i).

Section 522(h) does not authorize an administrative creditor to use § 544 to avoid a lien.

In Re Varrichione · filed 2006-11-09(h)

The Court also is unpersuaded by Attorney Aframe’s arguments under 11 U.S.C. § 544. He simply has provided no legal authority for the employment of § 544 by an administrative creditor to avoid a lien, and there is none. Neither the plain language of § 544 nor the plain language of 11 U.S.C. § 522(h) permit such a result.

Section 522(h) does not permit a debtor to pursue a preference action for property that was not substantively exemptible under § 522(b), even if it became exempt by default under § 522(l).

Ealy v. Ford Motor Credit Co. (In Re Ealy) · filed 2006-11-09(h), (b)

Since Ealy could not have exempted the withheld wages, she cannot maintain a preference action under § 522(h).

Section 522(h) lets a debtor exercise specified trustee avoidance powers only to the extent the debtor could have exempted the transferred property.

Salaymeh v. Plaza Centro LLC (In re Salaymeh) · filed 2007-01-10(h)

Combined, § 522(g), (h) and (j) make clear that the Debtors may avoid the transfer of the Property only to the extent that they could have exempted the Property. Because the Debtors could only exempt $2,130 in value of the Property, the excess value would remain subject to the transfer to Plaza Centro.

Section 522(h) lets a debtor avoid a transfer that the trustee could have avoided but did not, when the property could be exempted under § 522(g)(1), was not concealed, and was not voluntarily transferred.

Rodriguez v. Dorine's Bail Bonds, Inc. (In re Rodriguez) · filed 2007-01-18(h)

Read together, § 522(g) and § 522(h) allow a debtor to avoid the transfer of property that the trustee could have avoided, but failed to do so if the property is legitimately exempt, was not concealed and was not voluntarily transferred.

Section 522(h) permits a debtor to avoid a transfer only after the statutory prerequisites are met and only to the extent the debtor could have exempted the property.

In Re Bardell · filed 2007-02-08(h), (g)(1)

Assuming that these prerequisites are satisfied, then the Debtor may avoid the transfer “to the extent that the debtor could have exempted such property.” § 522(h).

Section 522(h) does not confer standing to avoid a voluntary lien transfer because a debtor must satisfy all of the statutory prerequisites, including the prohibition on voluntary transfers.

Smith v. Bank of New York (In Re Smith) · filed 2007-04-30(h), (g)(1)

Thus, § 522(h) does not confer standing on this Plaintiff to bring an action seeking to avoid this voluntary transfer of a lien.

Section 522(h)(1) gives a debtor standing to maintain an avoidance action under § 549 when the trustee does not pursue it.

Glendenning v. Third Federal Savings Bank (In Re Glendenning) · filed 2007-07-30(h)(1)

§ 522(h)(1) confers standing on the Debtor to maintain such an action.

Section 522(h) lets a debtor step into the trustee’s shoes to avoid a transfer under §§ 544 and 545 when the trustee does not attempt the avoidance.

In Re Krummel · filed 2010-04-05(h)

Taken in order, § 522(h) allows a debtor to stand in the shoes of the trustee and avoid a transfer of property under §§ 544 and 545, if the trustee does not attempt to avoid such transfer. 11 U.S.C. § 522(h). Because the trustee did not attempt to avoid the transfer, the debtor may proceed under that section.

Section 522(i) subjects a debtor who recovers an avoided transfer to the same limitations that apply to a trustee recovering under section 550.

Sandoval v. Century Bank (In Re Sandoval) · filed 2012-03-19(i)

Section 522(i), quoted above, makes it clear, however, that the debtor is subject to the same limitations as the trustee when attempting to recover under section 550.

Section 522(h) permits a debtor to use avoidance powers to recover exempt assets only in limited circumstances, and § 522(g)(1)(A) bars that use when the transfer was voluntary; therefore, a debtor cannot use § 522(h) to avoid a consensual mortgage lien.

Kellner v. First Ohio Banc & Lending, Inc. (In re Geraci) · filed 2014-03-25(h) and (g)(1)(A)

However, a debtor may use § 544 powers to avoid a transfer to recapture exempt assets, but only in the limited circumstances provided in 11 U.S.C. § 522(h). One limitation on a debtor's ability to make use of these avoidance powers is that the transfer sought to be avoided may not be a voluntary transfer on the part of the debtor. 11 U.S.C. 522(g)(1)(A). Because a mortgage is a consensual or voluntary lien, a debtor cannot use § 522(h) to take on the trustee's powers to avoid a mortgage lien.