Opinion
Case No. 10-72587-WSD.
January 13, 2011
STEINBERG SHAPIRO CLARK, Tracy M. Clark (P60262), Attorney for Trustee, Southfield, MI.
TRUSTEE'S OBJECTION TO DEBTOR'S EXEMPTIONS
Jurisdiction
1. This is a contested matter brought pursuant to Bankruptcy Rules 4003(b) and 9014.
2. This is a core proceeding over which this court has jurisdiction. See 28 U.S.C. §§ 157(b)(2)(B) and 1334.
General Allegations
3. On October 25, 2010, Kelli A. Kalso filed a voluntary petition for relief under Chapter 7 of the United States Bankruptcy Code. The Debtor filed amended Schedules B and C on December 1, 2010.
4. Mark H. Shapiro is the Chapter 7 Trustee for the Debtor's bankruptcy estate.
5. On Schedule B, the Debtor listed her interest in the following IRAs: Fidelity, $2,117; Van Guard, $4,919; Van Guard, $4,045; Van Guard Roth $7,468 (not property of the estate per Patterson v Shumate). (Docket nos. 1 and 10, Schedule B) During the Debtor's Meeting of Creditors, the Debtor testified that the IRAs were inherited.
6. The Debtor claimed $18,549 of the inherited IRAs as exempt pursuant to 11 U.S.C. § 522(d)(12). (Docket nos. 1 and 10, Schedule C)
Objection to Debtor's § 522(d)(12) Exemption of IRAs
7. Pursuant to 11 U.S.C. § 522(d)(12), a debtor may exempt an interest in:
Retirement funds to the extent that those funds are in a fund or account that is exempt from taxation under section 401, 403, 408, 408A, 414, 457, or 501(a) of the Internal Revenue Code of 1986.
8. IRAs inherited by anyone other than a spouse are not tax-exempt nor qualified as retirement plans of a debtor and are not exempt under § 522(d)(12). See e.g., In re Sims, 241 B.R. 467 (Bankr. N.D. Okla. 1999); In re Navarre, 332 B.R. 24 (Bankr. M.D. Ala. 2004); In re Jarboe, 365 B.R. 717 (Bankr. S.D. Tex. 2007); In re Ard, 435 B.R. 719 (Bankr. M.D. Fla. 2010); In re Chilton, 426 B.R. 612 (Bankr. E.D. Tex. 2010); In re Kirchen 344 B.R. 908.
Request for Relief
The Trustee objects to the Debtor's 11 U.S.C. § 522(d)(12) exemption of the IRAs.
ORDER GRANTING TRUSTEE'S OBJECTION TO DEBTOR'S EXEMPTIONS
This matter has come before the court upon the Trustee's Objection to Debtor's Exemptions. The Debtor and Debtor's counsel were served with notice of the objection. No response was timely filed, and the court has been duly advised in the premises.
IT IS ORDERED that the Debtor's 11 U.S.C. § 522(d)(12) exemptions of the IRAs are denied.
14 DAY NOTICE OF TRUSTEE'S OBJECTION TO DEBTOR'S EXEMPTIONS
Chapter 7 Trustee Mark H. Shapiro has filed an objection to the Debtor's exemptions in the above proceedings.
Your rights may be affected. You should read these papers carefully and discuss them with your attorney, if you have one in this bankruptcy case. (If you do not have an attorney, you may wish to consult one.)
If you do not want the court to grant the objection, or if you want the court to consider your views on the objection, then on or before 14 days from the date of service of this notice, you or your attorney must:
File with the court an objection or request for hearing at:
Objection or request for hearing must comply with F.R. Civ. P. 8(b), (c) and (e).
INTAKE OFFICE
U.S. Bankruptcy court
211 West Fort Street
Detroit, Michigan 48226
If you mail your response to the court for filing, you must mail it early enough so the court will receive it on or before the 14 day period expires.
You must also mail a copy to:
Tracy M. Clark, Esq.
Steinberg Shapiro Clark
25925 Telegraph Rd., Suite 203
Southfield, Michigan 48033
(248) 352-4700
If you or your attorney do not take these steps, the court may decide that you do not oppose the relief sought in the objection and may enter an order granting that relief.
BRIEF IN SUPPORT OF TRUSTEE'S OBJECTION TO DEBTOR'S CLAIMED EXEMPTIONS
In support of his objection, the Trustee relies on the provisions of 11 U.S.C. § 522(d)(12); Bankruptcy Rule 4003(b); In re Sims, 241 B.R. 467 (Bankr. N.D. Okla. 1999); In re Navarre, 332 B.R. 24 (Bankr. M.D. Ala. 2004); In re Jarboe, 365 B.R. 717 (Bankr. S.D. Tex. 2007); In re Ard, 435 B.R. 719 (Bankr. M.D. Fla. 2010); In re Chilton, 426 B.R. 612 (Bankr. E.D. Tex. 2010); In re Kirchen 344 B.R. 908.