In re: Philip Burke, et al

Filing

OPINION and JUDGMENT filed : AFFIRMED. Decision for publication. Karen Nelson Moore, Ronald Lee Gilman (AUTHORING), and Deborah L. Cook, Circuit Judges.

Case: 16-6603

Document: 37-2

Filed: 07/14/2017

Page: 1

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0151p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

IN RE: PHILIP CRAIG BURKE; NEKOLIA SWOPE BURKE,
Debtors.
___________________________________________
RICHARD P. JAHN, JR., Trustee,
Appellant,
v.
PHILIP CRAIG BURKE; NEKOLIA SWOPE BURKE,
Appellees.

┐
│
│
│

>

No. 16-6603

│
│
│
│
│
│
│
┘

Appeal from the United States District Court
for the Eastern District of Tennessee of Chattanooga.
No. 1:15-cv-00246—Travis R. McDonough, District Judge.
Argued: June 13, 2017
Decided and Filed: July 14, 2017
Before: MOORE, GILMAN, and COOK, Circuit Judges.
_________________
COUNSEL
ARGUED: Richard P. Jahn, Jr., Chattanooga, Tennessee, for Appellant. W. Thomas Bible, Jr.,
Chattanooga, Tennessee, for Appellees. ON BRIEF: Richard P. Jahn, Jr., Nancy A. Cogar,
Chattanooga, Tennessee, for Appellant. W. Thomas Bible, Jr., William P. Glascock, Jr.,
Chattanooga, Tennessee, for Appellees.
Tara Twomey, NATIONAL CONSUMER
BANKRUPTCY RIGHTS CENTER, San Jose, California, for Amicus Curiae.

Case: 16-6603
No. 16-6603

Document: 37-2

Filed: 07/14/2017

Page: 2

Jahn v. Burke et al.

Page 2

_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Philip C. and Nekolia S. Burke encountered
financial distress during the “Great Recession” that began in 2008. Unable to pay their debts,
they filed for Chapter 7 bankruptcy seven years later. Richard P. Jahn Jr., as bankruptcy trustee
of the Burkes’ estate, sought to evict the Burkes from their residence in order to make the
property easier to sell for the benefit of their creditors. In response, the Burkes moved to compel
the trustee to abandon the property based on their contention that the fair market value of the
residence, less the balance due on the mortgage loan, left no net equity for the estate. The
bankruptcy court agreed that the net value of the residence was inconsequential from the
viewpoint of the unsecured creditors. It therefore granted the motion to compel abandonment.
The district court concurred. For the reasons set forth below, we AFFIRM the judgment of the
district court.
I. BACKGROUND
The Burkes filed a bankruptcy petition under Chapter 7 of the Bankruptcy Code in
February 2015. In their bankruptcy schedules, the Burkes listed their residence in Chattanooga,
Tennessee as being appraised for $108,000, with a $91,581 balance due on the mortgage.
Jahn, the appointed trustee, moved for an order evicting the Burkes from the property in
May 2015. In his motion, Jahn stated that he “desire[d] to sell the property, but c[ould] not do so
with the Debtors still living there.” He further asserted that the value of the residence was “close
to $200,000,” which would have made its sale considerably more valuable to the Burkes’
unsecured creditors than if the property was worth only $108,000 as claimed by the Burkes.
Two weeks later, the Burkes filed a motion to compel the trustee to abandon the property. The
Burkes argued that the property’s value was in fact $108,000, with a substantial existing
mortgage that reduced the net equity to a point that “would provide little or no value to [the
Burkes’] creditors.” They asked in the alternative that their Chapter 7 case be converted to a
case under Chapter 13 so that they could attempt to keep the residence.

Case: 16-6603

Document: 37-2

No. 16-6603

Filed: 07/14/2017

Jahn v. Burke et al.

Page: 3
Page 3

At a hearing on the parties’ respective motions, Jahn tendered the Burkes a check for
$7,500, this being the value of their statutory homestead exemption in Tennessee. See Tenn.
Code Ann. § 26-2-301(a). After the Burkes rejected the tendered payment, the bankruptcy court
set a date for an evidentiary hearing on the motions. The court noted that the matter appeared to
be “really just a factual issue about the value of the house and [its] condition.” Jahn implicitly
assented, pointing out that the Burkes “have the burden of proof to show that it’s of
inconsequential value” to the estate.
An evidentiary hearing was held in July 2015. At the hearing, the Burkes and Jahn
presented competing appraisals of the property. The Burkes called two different appraisers as
witnesses. Joseph Ramirez, the Burkes’ first witness, estimated that the residence would be
worth $171,000 after necessary repairs related to mold and roofing were made that would cost
$63,000, leaving a net value of $108,000. The Burkes’ second appraiser, E. Wells Blake Jr., also
recognized mold issues and identified other necessary repairs in the home. Blake valued the
home at roughly $185,000 after making repairs estimated at $60,000, arriving at a final appraisal
of $125,000.
Jahn’s realtor, on the other hand, testified that the Burkes’ residence was worth $204,000,
which he based on his tour of the property. A home inspector also testified for Jahn. The
inspector concluded that there was no problem with the roof of the residence and that the mold
issue was overstated by the Burkes’ appraisers. Jahn himself testified, asserting that, after
repairs, the home was worth between $190,000 and $200,000.
The bankruptcy court granted the Burkes’ motion to abandon in August 2015, concluding
that the residence was of inconsequential value to the estate based on Ramirez’s valuation of the
property. Jahn’s motion to alter or amend the judgment was denied. In the order denying Jahn’s
motion, the court observed that “this case had been pending almost six months when the court
ordered abandonment, and houses are often sold while being occupied by their owners.” It also
noted that “[t]here is no reason the trustee could not have been marketing the property since the
case was commenced in February, particularly in light of the trustee’s assertions that only minor
repairs [were] needed to render the property marketable.”

Case: 16-6603

Document: 37-2

No. 16-6603

Filed: 07/14/2017

Page: 4
Page 4

Jahn v. Burke et al.

The district court affirmed the judgment of the bankruptcy court. This timely appeal
followed.
II. ANALYSIS
A. Standard of review
We review de novo the bankruptcy court’s legal conclusions, and we use the clear-error
standard to review its factual findings. In re Baker & Getty Fin. Servs., Inc., 974 F.2d 712, 716–
17 (6th Cir. 1992). Although we do not defer to the district court’s intervening decision, “we
consider it with due respect and an eye to the persuasive value of its reasoning.” In re Kloian,
115 F. App’x 768, 769 (6th Cir. 2004).
B. The abandonment issue
Jahn’s principal argument on appeal is that the Burkes lacked standing to compel the
trustee to abandon their residence. He argues that the Burkes were not “parties in interest” with
regard to the residence because it was actually property of the estate, and that, to the extent they
were “parties in interest” at all, Jahn’s tendering of cash for the Burkes’ homestead exemption
extinguished any standing that they might otherwise have had.

We conclude that these

contentions lack merit.
When a debtor declares bankruptcy, an estate is created. See 11 U.S.C. § 541(a). The
estate normally includes the debtor’s real property. Id. A Chapter 7 trustee is responsible for
liquidating the estate and using the proceeds to satisfy the debtor’s unsecured creditors.
See generally 11 U.S.C. §§ 704 & 726. This power to liquidate property of the estate, however,
“will not be exercised unless it is made to appear that there is a fair prospect of the property
being sold for substantially more than enough to discharge the lien or liens upon it.” Hoehn v.
McIntosh, 110 F.2d 199, 202 (6th Cir. 1940). The trustee, in other words, must generally
abandon property that does not possess substantial equity. See In re Feinstein Family P’ship,
247 B.R. 502, 507 (Bankr. M.D. Fla. 2000) (“It is now almost universally recognized that where
the estate has no equity in a property, abandonment is virtually always appropriate[.]”).

Case: 16-6603
No. 16-6603

Document: 37-2

Filed: 07/14/2017

Jahn v. Burke et al.

Page: 5
Page 5

This common-law rule was codified in 1978 as part of the Bankruptcy Code, which
provides in relevant part that, “[o]n request of a party in interest and after notice and a hearing,
the court may order the trustee to abandon any property of the estate that is burdensome to the
estate or that is of inconsequential value and benefit to the estate.” 11 U.S.C. § 554(b). A “party
in interest” refers, for example, to “anyone who has a practical stake in the outcome of a case.”
In re Morton, 298 B.R. 301, 307 (B.A.P. 6th Cir. 2003) (quoting In re Cowan, 235 B.R. 912, 915
(Bankr. W.D. Mo. 1999)). As has been noted by a bankruptcy court in Indiana, “the debtor is, in
a very real sense, the beneficiary of abandonment” because the debtor will get to keep the
property (subject to the mortgage loan) if the trustee is ordered to abandon it. In re Drost,
228 B.R. 208, 210 (Bankr. N.D. Ind. 1998).
The Burkes were therefore “parties in interest” with respect to the abandonment of their
residence because, if they won their motion, they would get to keep their property. Such an
interest is as “practical [a] stake in the outcome,” Morton, 298 B.R. at 307, as a party could have.
The Burkes thus had standing to pursue a motion to compel abandonment.
Jahn seeks to avoid this logical conclusion with two arguments. Citing no authority in
support of his first argument, he contends that because he tendered the Burkes their homestead
exemption—an offer that they did not accept—the Burkes lacked any “legal or possessory
interest” in their residence. This argument lacks merit. A homestead exemption is a statutory
remedy for debtors that gives them a certain sum of money (in this case, $7,500) to provide them
with a “fresh start” after the loss of their property. See Rousey v. Jacoway, 544 U.S. 320, 322,
325 (2005).
The homestead exemption is not, however, the exclusive remedy for a debtor facing the
loss of his or her residence. An alternative remedy is for the debtor to seek abandonment by the
trustee under 11 U.S.C. § 554(b) if the property is “of inconsequential value and benefit to the
estate.” If Jahn could extinguish the abandonment remedy by simply tendering the homestead
exemption, then he could effectively nullify 11 U.S.C. § 554(b). Such an argument overlooks
relevant caselaw and the text of the abandonment statute.

Case: 16-6603
No. 16-6603

Document: 37-2

Filed: 07/14/2017

Jahn v. Burke et al.

Page: 6
Page 6

Jahn’s second argument is that the Burkes lacked Article III standing to proceed on their
motion to compel abandonment. To have standing, a party must have suffered an injury-in-fact,
that injury must have been caused by the defendant, and the injury must be redressable by a
favorable ruling. Phillips v. DeWine, 841 F.3d 405, 414 (6th Cir. 2016) (citing Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992)). A sale of the residence (and the eviction that Jahn sought)
would constitute such an injury, caused by Jahn’s actions, and is redressable by a favorable
ruling on the motion to compel abandonment.
The cases that Jahn cites in support of his argument to the contrary concern other matters
entirely, such as the lack of a debtor’s standing to assert a cause of action that was clearly the
property of the estate. See, e.g., In re Jones, 396 B.R. 638, 646–48 (Bankr. W.D. Pa. 2008)
(holding that the debtor lacked standing to bring a claim against the Internal Revenue Service for
the improper assessment of a tax deficiency because the cause of action was the property of the
estate and had not been abandoned to the debtor). Nor does the debtor have standing to make a
request for the abandonment of another’s property. See In re Miller, 302 B.R. 705, 711 (10th
Cir. B.A.P. 2003) (holding that the debtor had no standing to compel the trustee to abandon
production equipment and other property that concededly belonged to third parties). In such a
case, the debtor has suffered no injury and a ruling in the debtor’s favor would not accrue to his
benefit.
The abandonment of the debtor’s residence by the trustee, on the other hand, generates an
immediate material benefit to the debtor, and the sale of that property would surely constitute an
injury-in-fact. Jahn has cited no case to the contrary, and we have found none. Indeed, Jahn
himself cites a number of cases that assume without discussion that debtors are “parties in
interest,” and thus have standing to compel abandonment. See, e.g., In re Heflin, 215 B.R. 530,
532 (Bankr. W.D. Mich. 1997) (ruling on a debtor’s motion to compel abandonment of a 40-acre
parcel, noting that the only issue before the court was whether the property was “of
inconsequential value and benefit to the estate”).
In short, this case clearly falls within the scope of the abandonment statute. The Burkes,
being parties in interest to the estate’s property, seek to have the trustee abandon their residence
because, although it is of inconsequential value to the estate’s unsecured creditors, it has real

Case: 16-6603
No. 16-6603

Document: 37-2

Filed: 07/14/2017

Page: 7

Jahn v. Burke et al.

Page 7

value to the Burkes. We therefore reject the trustee’s position and conclude that the Burkes had
standing to compel the trustee to abandon their residence.
C. The eviction issue
Jahn next argues that he should have been able to evict the Burkes upon the tender of
their homestead exemption. Although Jahn concedes that he “has not located a case where this
was done before a sale” of a property, he relies heavily on dictum in In re Szekely, 936 F.2d 897
(7th Cir. 1991), concerning whether debtors who remain in their residence after filing for
bankruptcy are required to pay rent to the estate. The court in Szekely concluded that, in light of
the language of the homestead-exemption law in Illinois, the debtors were entitled to stay in their
residence rent-free until they were paid the homestead exemption. The court wrote: “Because
the house belongs to the estate, the trustee can pay the Szekelys their $15,000 [homestead
exemption] and tell them to skedaddle, and then rent the house to whomever he pleases until he
sells it.” Id. at 902. But this quote offers Jahn no support because the Szekelys had not sought
the remedy of abandonment (since no one disputed that their residence was an asset of value to
the creditors) and they had actually wanted the homestead exemption. Id. at 900 (“[W]e note
first of all that the debtors . . . were claiming the right to withdraw from the estate the full
amount of the homestead exemption[.]”).
The key issue in the Burkes’ case, by contrast, is whether their residence should be in the
estate at all, especially where the Burkes were not requesting the homestead exemption. Under
these circumstances, there is no authority for the proposition that the trustee can tender the
debtors the homestead exemption and cause them to “skedaddle.” See id. at 902. Such an
outcome has no basis in precedent or in the Bankruptcy Code. We therefore decline Jahn’s
invitation to automatically permit the debtors to be evicted upon the tender of the homestead
exemption by the trustee.
D. Propriety of an evidentiary hearing and the sufficiency of the evidence
Jahn’s final arguments fare no better. He first claims that a “valuation hearing should not
have been conducted” at all.

But this contention can be disposed of by reference to the

abandonment statute itself, which expressly requires the bankruptcy court to hold “a hearing”

Case: 16-6603
No. 16-6603

Document: 37-2

Filed: 07/14/2017

Page: 8

Jahn v. Burke et al.

Page 8

upon a motion by a party in interest to compel abandonment. See 11 U.S.C. § 554(b). Jahn’s
citation to In re Cult Awareness Network, 205 B.R. 575 (Bankr. N.D. Ill. 1997), is inapposite. In
that case, the court did not hold a hearing on the trustee’s request to abandon estate property
because “there [was] no dispute about the facts.” Id. at 577 n.3. Jahn concedes that the facts in
this case were very much in dispute, and he fails to explain how § 554(b)’s express requirement
to hold a hearing should not have applied to the Burkes’ abandonment motion. His argument on
this point is meritless.
Jahn also argues that the bankruptcy court should not have credited Ramirez’s estimate
that the residence in question was worth only $108,000. We apply the clear-error standard of
review to such a factual finding. “A finding of fact is clearly erroneous when[,] although there is
evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” In re DSC, Ltd., 486 F.3d 940, 944 (6th Cir.
2007) (internal quotation marks omitted). The record here is replete with evidence on which the
bankruptcy court could reasonably have concluded that the Burkes’ estimate of value was the
more accurate one, especially because the Burkes presented two appraisers who had thoroughly
inspected the house, whereas Jahn presented no appraisers, instead relying on a realtor, a home
inspector, and himself. We conclude that the bankruptcy court did not commit clear error when
it valued the Burkes’ home at $108,000. Because Jahn has conceded that the value of $108,000
would “show [that the residence] had inconsequential value for the estate,” we conclude that the
bankruptcy court did not err in ordering the trustee to abandon the property.
In a final “Hail Mary” attempt to avoid this result, Jahn filed a supplemental-authority
letter following oral argument. He argues that, because the Burkes offered to convert their
Chapter 7 case to a case under Chapter 13 and pay the estate roughly $50,000 (albeit by utilizing
funds made available by a relative), the bankruptcy court abused its discretion in concluding that
the residence was of inconsequential benefit to the estate’s unsecured creditors.
Jahn’s last-ditch effort fails for two reasons. First, this is an entirely new argument, and
“arguments not raised in a party’s opening brief . . . are waived.” Kuhn v. Washtenaw County,
709 F.3d 612, 624 (6th Cir. 2013). Second, there is a total disconnect between the debtor’s
alternative offer and the issue of abandonment. Jahn relies on a single unpublished, out-of-

Case: 16-6603
No. 16-6603

Document: 37-2

Filed: 07/14/2017

Jahn v. Burke et al.

Page: 9
Page 9

circuit decision that reversed an abandonment order, not just because (as Jahn claims) the
bankruptcy court abused its discretion in disregarding the debtor’s offer of payment through a
proposed Chapter 13 plan, but because “abandonment is not available where the value of the
property has not been established.” In re Buerge, No. KS-12-074, 2014 WL 1309694, at *19
(B.A.P. 10th Cir. 2014).
The bankruptcy court in Buerge had altogether “failed to make the requisite holding as to
the [property]’s value.” Id. In the case before us, the bankruptcy court ably discharged its
responsibility in determining the value of the residence. We find Jahn’s arguments to the
contrary unpersuasive.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.