Michael Showalter v. J. Hopper , 617 F. App'x 709 ( 2015 )

FILED
NOT FOR PUBLICATION JUN 19 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: MICHAEL TRENT No. 13-60045
SHOWALTER,
BAP No. 12-1419
Debtor,
_______________________________ MEMORANDUM*
MICHAEL TRENT SHOWALTER,
Appellant,
v.
J. MICHAEL HOPPER,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Dunn, Jury, and Markell, Bankruptcy Judges, Presiding
Submitted June 11, 2015**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: SCHROEDER and IKUTA, Circuit Judges, and SEABRIGHT, *** District
Judge.
Michael Trent Showalter (“Showalter”) appeals a Bankruptcy Appellate
Panel (“BAP”) decision affirming a bankruptcy court order sustaining Chapter 7
Trustee J. Michael Hopper’s objection under Federal Rule of Bankruptcy
Procedure 4003(b) to Showalter’s claimed homestead exemption in a one-third
interest in a Florida property. We have jurisdiction pursuant to 28 U.S.C.
§ 158(d)(1), and we affirm.
Showalter sought an Article 5 “declared homestead” exemption under Cal.
Civ. Proc. Code § 704.920. But an Article 5 exemption applies only to “voluntary
sales,” and not to “forced sales” such as the filing of a bankruptcy petition at issue
here. See, e.g., Kelley v. Locke (In re Kelley), 300 B.R. 11, 20-21 (B.A.P. 9th Cir.
2003); Katz v. Pike (In re Pike), 243 B.R. 66, 70 (B.A.P. 9th Cir. 1999).
Further, even if Showalter relied on California’s “automatic homestead”
provision under Article 4, Cal. Civ. Proc. Code § 704.720 does not apply because
Showalter did not reside in the homestead property when he filed for bankruptcy.
See, e.g., Redwood Empire Prod. Credit Ass’n v. Anderson (In re Anderson), 824
F.2d 754, 757 (9th Cir. 1987). To determine residency for homestead purposes
***
The Honorable J. Michael Seabright, United States District Judge for the
District of Hawaii, sitting by designation.
2
under California law, a court considers “physical occupancy of the property and
the intention with which the property is occupied.” In re Kelley, 300 B.R. at 21
(citing Ellsworth v. Marshall, 16 Cal. Rptr. 588, 589 (Cal. App. 1961)). The
factual findings that Showalter did not occupy the Florida property when he filed
his bankruptcy petition, and that he had no credible intent to return to reside there
permanently, were not clearly erroneous. See, e.g., Retz v. Samson (In re Retz),
606 F.3d 1189, 1196 (9th Cir. 2010) (reviewing bankruptcy court’s factual
determinations for clear error).
Finally, Showalter’s argument that the Florida property is exempt under the
Florida Constitution lacks merit. Given the bankruptcy court’s finding that
Showalter’s residence in California was not temporary, California’s (not Florida’s)
exemption laws apply. See 11 U.S.C. § 522(b)(3)(A); Arrol v. Broach (In re
Arrol), 170 F.3d 934, 936 (9th Cir. 1999). And, in any event, Showalter
abandoned this argument when he failed to renew it in his Second and Third
Amended Schedule C.
AFFIRMED.
3