In re William Nmi PAUL, Jr., also known as Bill Paul, also known as Bill Paul, Jr., also known as William Paul, doing business as Vision Construction, doing business as Pauls Construction Debtor.
Forrest C. Allred, Appellee. William Nmi Paul, Jr., Appellant
Submitted: Nov. 18, 2013.
Dave Claggett, argued, Spearfish, SD, for Appellant.
Forrest C. Allred, argued, Aberdeen, SD, pro se.
Before RILEY, Chief Judge, MELLOY and KELLY, Circuit Judges.
RILEY, Chief Judge.
William Paul Jr. appeals an order of the bankruptcy court, affirmed by the United
States Bankruptcy Appellate Panel for the Eighth Circuit (BAP), granting summary judgment in favor of Forrest C. Allred, Paul's Chapter 7 trustee (trustee), regarding Paul's claimed homestead exemption. Having jurisdiction under 28 U.S.C. § 158(d), we affirm.
On May 11, 2012, Paul filed a voluntary petition for Chapter 7 bankruptcy. Among his assets, Paul listed real property located at 117 Spark Street, Lead, South Dakota (Spark Street property), which he claimed was exempt from his bankruptcy estate under South Dakota's homestead exemption. See S.D. Codified Laws § 43-45-3. In the petition, Paul listed his new wife's house as his address.
On June 28, 2012, the trustee conducted a meeting of the creditors pursuant to 11 U.S.C. § 341(a) and (d), where Paul testified to the following. Some time in 1997 or 1998, Paul purchased the Spark Street property. Paul lived at the Spark Street property for a period, but moved out fourteen or fifteen years ago. Since then, Paul has rented the Spark Street property. And at the time of the § 341 meeting, Paul did not intend to resume living at the Spark Street property.
Soon after the meeting, the trustee filed an objection claiming South Dakota's homestead exemption did not cover the Spark Street property, because Paul's statements at the meeting showed he did not intend to live there at any point in the future. Paul challenged the trustee's characterization of South Dakota law by declaring Paul " has the right to choose his homestead from real property owned in ... South Dakota." The trustee moved for judgment on the pleadings. Leaving the trustee's characterization of Paul's intent unchallenged, Paul's opposition brief argued both the South Dakota statute and constitution mandated the exemption, regardless of Paul's intent. The bankruptcy court converted the trustee's motion to a motion for summary judgment and, after giving the parties time to submit additional filings, granted the trustee's converted motion and entered summary judgment. The bankruptcy court reasoned the homestead exemption was inapplicable where Paul had no " present intent to return to" the Spark Street property and where he and his family had " made their home elsewhere and had no intent to move."
Paul appealed to the BAP, where he rephrased his legal arguments and again left the underlying facts undisturbed. The BAP affirmed the bankruptcy court's decision, concluding the Spark Street property could not be a homestead without Paul having the " actual intent to return" and reside there and thus was unprotected by either South ...