E.S.M. Group, Inc. v. Penrod (In Re Penrod) ( 1983 )

30 B.R. 326 (1983)

In re Jack Vernon PENROD, Debtor.
E.S.M. GROUP, INC., Plaintiff,
v.
Jack Vernon PENROD, Defendant.

Bankruptcy No. 82-01451-BKC-SMW, Adv. No. 82-1135-BKC-SMW-A.

United States Bankruptcy Court, S.D. Florida.

May 27, 1983.

Gary M. Farmer, Fort Lauderdale, Fla., for defendant.

M. Lewis Hall, III, Miami, Fla., for plaintiff.

A.W. Beck, Trustee.

Patrick A. Barry, Fort Lauderdale, Fla., for trustee.

ORDER GRANTING MOTION TO DISMISS AMENDED COMPLAINT

SIDNEY M. WEAVER, Bankruptcy Judge.

This Cause having come before the Court upon a Motion to Dismiss Amended Complaint, and the Court having heard the arguments of counsel and being fully advised in the premises finds that pursuant to Bankruptcy Code § 522(b)(2)(B) a debtor using state exemptions 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 as a tenant by the entirety or joint tenant is exempt from process under applicable nonbankruptcy law.

Florida Law provides that an interest held by tenants by the entireties is exempt from process. In Re Lunger, 14 B.R. 6 (M.D.Fla.1981). A judgment against one spouse cannot attach to property held by tenants by the entireties. Ohio Butterine Co. v. Hargrave, 79 Fla. 458, 84 So. 376 (Fla.1920), Hart v. Atwood, 119 So. 116 (Fla. 1928), State Department of Commerce, Division of Employment Security v. Lowery, 333 So.2d 495 (1 D.C.A.1976). See also Matter of Koehler, 6 B.R. 203 at 205 (M.D.Fla. 1980) stating that property held by tenants by the entirety is "immune from a claim of the single creditor of one of the tenants . . . ".

Applying the above cited law the Court concludes that the judgment held by E.S.M. Group, Inc. against the debtor, Jack Vernon Penrod, individually, cannot attach to property held by the debtor and his spouse as tenants by the entireties and accordingly it is hereby

ORDERED and ADJUDGED that the Motion to Dismiss Amended Complaint is granted.