In re: Romero

Filing 25

ORDER by Judge Philip A. Brimmer on 3/24/16. ORDERED: The June 24, 2015 Memorandum Opinion and Order on Homestead Exemption [Docket No. 13-1 at 56-66] is AFFIRMED. (kpreu)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 15-cv-01484-PAB
In re:
EDWARD J. ROMERO,
Debtor.
EDWARD J. ROMERO,
Appellant,
v.
KIMBERLEY H. TYSON, as Chapter 7 Trustee,
Appellee.

ORDER

This is an appeal by debtor Edward Romero from the June 24, 2015 order
[Docket No. 13-1 at 56-66] of the United States Bankruptcy Court for the District of
Colorado (the “bankruptcy court”) denying debtor’s claim of a homestead exemption for
his vehicle, which debtor adapted to serve as his living quarters. The Court’s
jurisdiction is based on 28 U.S.C. § 158(a). 1
I. BACKGROUND2
Debtor filed a voluntary petition for Chapter 7 bankruptcy on February 9, 2015.
Docket No. 13-1 at 5. Among his assets, debtor listed a 1997 Peterbilt truck, id. at 19,
1

After reviewing the parties’ submissions, the Court has determined that oral
argument is not necessary to the resolution of this appeal.
2

The following facts are not in dispute.

which debtor claimed was exempt as a homestead pursuant to Colo. Rev. Stat. §§ 3841-201(a) and 38-41-201.5. Docket No. 13-1 at 21. On March 18, 2015, the T rustee
objected to debtor’s claim of exemption for the truck, arguing that the truck is not a
“homestead” under Colorado law. See generally id. at 44-46. On June 10, 2015, the
bankruptcy court held an evidentiary hearing on the trustee’s objection. See generally
Docket No. 13-2. The bankruptcy court found that debtor owns the truck, which is worth
$45,000, that the truck is a commercial vehicle designed to be driven on the road and to
tow a trailer to haul goods, that the truck is not designed to be installed in a permanent
or semipermanent location, and that the truck is not af fixed to real property. Docket No.
13-1 at 57. The bankruptcy court further found that debtor has been living in the truck
since 1998. Id. at 58. Regarding the debtor’s living quarters in the vehicle, the court
found that the truck has a
fairly large cab which serves as the Debtor’s principal living and sleeping
quarters. The cab has a bed, microwave oven, toaster, coffee pot,
refrigerator, laser printer, television, light, and vacuum. In addition to food
and water, the Debtor also neatly stores his clothes, laundry, and sundry
items in a dozen plastic boxes mainly located in a small loft above the bed.
A self-contained portable toilet rounds out the cab’s equipment. The
Debtor’s dog lives with him in a small kennel near the bed. The Peterbilt
Truck has a 12-volt generator to provide electricity, heat, and air-conditioning
when the vehicle is parked.
Id. The bankruptcy court, after a careful review of the history of the homestead
exemption under Colorado law, held that the truck did not qualify as a homestead.3

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Colorado, as permitted by the bankruptcy code, 11 U.S.C. §§ 522(b)(2),
(b)(3)(A), has opted out of the code’s provision for exemptions. Under Colorado law,
which applies to this dispute, “[e]xemptions authorized to be claimed by residents of this
state shall be limited to those exemptions expressly provided by the statutes of this
state.” Colo. Rev. Stat. § 13-54-107.
2

II. STANDARD OF REVIEW
A party may appeal the “final judgments, orders, and decrees” of a bankruptcy
court to either the district court or a bankruptcy appellate panel. 28 U.S.C. §§ 158(a),
(c)(1). A district court reviews the Bankruptcy Court’s legal conclusions de novo, its
factual findings for clear error, and its discretionary decisions for abuse of discretion. In
re Baldwin, 593 F.3d 1155, 1159 (10th Cir. 2010); Busch v. Busch (In re Busch), 294
B.R. 137, 140 (B.A.P. 10th Cir. 2003) (lifting of automatic stay); Brasher v. Turner (In re
Turner), 266 B.R. 491, 494 (B.A.P. 10th Cir. 2001) (excluding an exhibit); Dennis
Garberg & Assocs., Inc. v. Pack-Tech Int’l Corp., 115 F.3d 767, 771 (10th Cir. 1997)
(entering default judgment).
III. ANALYSIS
The only issue before the Court is whether the bankruptcy court erred in finding
that debtor’s truck is not subject to Colorado’s homestead exemption. Colorado
Revised Statute § 38-41-201(1), which codifies the homestead exemption, provides, in
relevant part: “[e]very homestead in the state of Colorado shall be exempt from
execution and attachment arising from any debt, contract, or civil obligation[.]” Colo.
Rev. Stat. § 38-41-201(1). Colorado law further provides that “[t]he homestead
mentioned in this part . . . may consist of a house and lot or lots or of a farm consisting
of any number of acres.” Colo. Rev. Stat. § 38-41-205. “Colorado Courts have
expressed a policy of broad and liberal interpretation of the homestead exemption.” In
re Wells, 29 B.R. 688, 689 (Bankr. D. Colo. 1983). “The purpose of Colorado’s
homestead exemption is to secure to a householder a home for himself and his family,

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regardless of his financial condition.” In re Harwell, No. 07-cv-01283-WYD, 2008 WL
410590, at *3 (D. Colo. Feb. 13, 2008) (citing Matter of Lombard, 739 F.2d 499 (10th
Cir. 1984)).
In addition to houses and farms, the Colorado General Assembly has included
mobile homes, manufactured homes, trailers, and trailer coaches under the state’s
homestead exemption. The inclusion of mobile homes arose out of a concern that, “as
the cost of conventional housing continues to escalate, mobile homes will become an
ever larger percentage of the total housing supply, particularly for the elderly and the
low-to-moderate income groups[.]” Colo. Rev. Stat. § 38-41-201.5. The statute
effectuating the exemption for mobile homes, manufactured homes, and trailers
provides:
(1) A manufactured home as defined in section 38-29-102(6), which includes
a mobile home or manufactured home as defined in section 38-12-201.5(2),
5-1-301(29), or 42-1-102(106)(b) . . . that has been purchased by an initial
user or subsequent user . . . is a homestead and is entitled to the same
exemption as enumerated in section 38-41-201, except for any loans, debts,
or obligations incurred prior to January 1, 1983. For purposes of this
homestead exception, the term “house” as used in section 38-41-205 shall
be deemed to include mobile homes or manufactured homes.
(2) A trailer . . . or a trailer coach . . . is a homestead and is entitled to the
same exemption as enumerated in section 38-41-201, except for any loans,
debts, or obligations incurred prior to July 1, 2000. For purposes of this
homestead exemption, the term “house” as used in section 38-41-205 shall
be deemed to include trailers and trailer coaches.
Colo. Rev. Stat. § 38-41-201.6.
Debtor does not argue that his truck fits into any statutory definition of

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“manufactured home” or “mobile home.”4 Instead, debtor argues that the truck is a
“motor home” and that the homestead exemption’s reference to a “manufactured home”
is “expansive enough” to incorporate that type of mobile dwelling. Docket No. 16 at 17.
Colo. Rev. Stat. § 42-1-102(57) defines “motor home” as a “vehicle designed to provide
temporary living quarters and which is built into, as an integral part of or a permanent
attachment to, a motor vehicle chassis or van.” Although he concedes that the truck
does not fit any of the statutory definitions of a “manufactured home” or “mobile home”
specified in Section 38-41-201.6, debtor argues that there is “nothing in section 201.6
that suggests the reference to manufactured homes is exclusive.” Docket No. 20 at 9.
The Court disagrees. Section 38-41-201.6(1)’s reference to “manufactured home” is
linked to two statutory definitions of the term, Section 38-29-102(6) and Section 42-1102(106)(b). The truck plainly does not satisfy either of these statutory definitions.
Section 38-29-102(6) defines “manufactured home” as “a preconstructed building unit
or combination of preconstructed building units that is constructed in compliance with
the federal manufactured home construction safety standard.” Debtor puts forth no
evidence or argument that the truck complies with any federal standard for
manufactured homes. Section 42-1-102(106)(b) specifically provides that a
manufactured home cannot have “motive power,” which the truck obviously does have.
Contrary to debtor’s assertion, Section 38-41-201.6(1) cannot be read as

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Debtor does not argue, and did not argue in the proceedings before the
bankruptcy court, that the truck fits any statutory definition of the term “mobile home.”
See generally Docket No. 16; see also Docket No. 13-1 at 63 (noting that [t]he Debtor
does not argue that the Peterbilt Truck is a ‘mobile home’” under either Colo. Rev. Stat.
§§ 38-12-201.5(2) or 5-1-301(29)).
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enacting a broad exception for living quarters of all types. Rather, the statute narrowly
expands the scope of the homestead exemption by deeming specifically-enumerated
structures as “houses” as used in Section 38-41-205. T hose structures are:
C

A mobile home as defined in either Section 38-12-201.5(2) or Section 5-1301(29);

C

A manufactured home as defined in either Section 38-29-102(6) or Section
42-1-102(106)(b);

C

A trailer as defined in Section 42-1-102(105); and

C

A trailer coach as defined in Section 42-1-102(106(a).

Colo. Rev. Stat. § 38-41-201.6.
Debtor argues that Section 38-41-201.6 does not exclude other types of
“houses” – such as motor homes – and that, instead of focusing on the structures that
are specifically referenced in Section 38-41-201.6, the Court should “f ocus on the
actual use of the home rather than its size or design.” Docket No. 20 at 10. Debtor’s
argument finds no support in any Colorado statute or any case interpreting Colorado’s
homestead exemption. In re Laube, 152 B.R. 260 (Bankr. W.D. Wis. 1993), which
debtor cites, is instructive. In Laube, the bankruptcy court found that a truck cab
designed to serve as sleeping quarters qualified as a homestead under Wisconsin’s
homestead exemption. Id. at 262-63. The relevant statute defined an “[e]xempt
homestead” as a “dwelling, including a building, condominium, mobile home,
manufactured home, house trailer or cooperative or an unincorporated cooperative
association[.]” Wis. Stat. § 990.01(14). The Laube court, after concluding that the truck
was not a building, condominium, house trailer, cooperative, or a mobile home, held
that the truck cab was a “dwelling” using that term’s ordinary meaning. Laube, 152 B.R.
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at 262. The Colorado statute, unlike the W isconsin statute, does not include a broad,
undefined term – such as “dwelling” – that would permit the Court to look beyond the
specifically-enumerated structures that the General Assembly chose to exempt.5
Moreover, as noted in Laube, the creation of a homestead under Wisconsin law “is a
fact-bound question based primarily on a determination of the owner’s intent.” Laube,
152 B.R. at 262 (citing In re Mann, 82 B.R. 981, 984 (Bankr. W .D. Wis. 1986)). Debtor
cites no Colorado authority, and the Court is aware of none, that places a similar focus
on the inhabitant’s intent in determining whether a dwelling is a “homestead.”
Colorado’s homestead exemption, by referencing specific types of dwellings that are to
be deemed “houses,” focuses on the nature of the dwelling rather than the intent of the
occupant.
Although Colorado’s homestead exemption is to be liberally interpreted, Wells,
29 B.R. at 689, no reasonable interpretation of Colo. Rev. Stat. 38-41-201.6 can
expand the exemption to dwellings, such as “motor homes,” that the General Assembly

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For the same reason, this case is distinguishable from the other authorities that
debtor cites that apply other states’ broader homestead exemptions. The court in In re
Meola found that Florida’s homestead exemption statute, which protected “any dwelling
house,” was intended to “extend the homestead exemption not only to mobile and
modular homes but to other, perhaps unforeseeable, types of living quarters[.]” 158
B.R. 881, 882 (Bankr. S.D. Fla. 1993). In In re Ross, the relevant Illinois statute
provided a homestead exemption for “personal property, owned or rightly possessed by
lease or otherwise and occupied by [the debtor] as a residence.” 210 B.R. 320, 322
(Bankr. N.D. Ill. 1997) (citing 735 ILCS 5/12-901) (emphasis in original). Finally, in In re
Irwin, the court found that a motor home was exempt under an Arizona statute that
provided an exemption for “[a] mobile home in which [a debtor] resides” where the
statute neither defined “mobile home” nor referenced any other statutory definition of
the term. 293 B.R. 28, 30-31 (Bankr. D. Ariz. 2003). The Colorado exemption for
certain types of mobile dwellings, by limiting its scope to specific, statutorily-defined
types of homes, is more restrictive than its counterparts in Florida, Illinois, and Arizona.
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chose not to include in the statute. The Court agrees with the bankruptcy court’s
application of the interpretative canon of expressio unius est exclusio alterius, see
Docket No. 13-1 at 75, and finds that the Colorado General Assembly, by including the
statutory definitions of “mobile home,” “manufactured home,” “trailer,” and “trailer
coach” in its expansion of the homestead exemption to dwellings that are not tied to
real property, intended to exclude other types of structures designed to serve as
dwellings. Cf. Henisse v. First Transit, Inc., 247 P.3d 577, 580 (Colo. 2011) (“W hen the
legislature specifically includes one thing in a statute, it implies the exclusion of another.
. . . Because the General Assembly explicitly included some groups that would not
normally be considered ‘public employee[s]’ under the [Colorado Governmental
Immunity Act], it necessarily excluded all other groups not fitting the definition”).
Because debtor cannot show that the truck fits into a category of property that is
protected by Colorado’s homestead exemption, the truck is not exempt.
In his reply, debtor argues that the truck nearly meets the definition of “mobile
home” found in Section 38-12-201.5(2) and Section 5-1-301(29) and f alls short only
because it lacks plumbing, a deficiency that should not preclude a finding that the truck
is a homestead. Docket No. 20 at 6-7. First, the lack of plumbing is itself disqualifying
under both statutory definitions of “mobile home.” Section 38-12-201.5(2) requires
mobile homes to have “complete electrical, plumbing, and sanitary facilities” (emphasis
added). Section 5-1-301(29) requires mobile homes to have “major appliances and
plumbing, gas, ane electrical systems installed but needing the appropriate connections
to make them operable” (emphasis added). Second, plumbing is not the only
characteristic of a “mobile home” that the truck lacks. Specifically, Section 38-128

201.5(2) provides that a mobile home is a dwelling that is “designed to be installed in a
permanent or semipermanent manner with or without foundation,” which the truck is
not. Section 5-1-301(29) provides that a mobile home is a dwelling that “may be
occasionally drawn over the public highways, by special permit, as a unit or in sections
to its permanent or semi-permanent location.” Debtor argues that the truck satisfies
this condition because “it is driven over the public highways.” Docket No. 20 at 7.
Debtor misses the point. Section 5-1-301(29) provides that a mobile home may
“occasionally” be drawn over public highways, but only en route “to its permanent or
semi-permanent location.” This definition clearly excludes vehicles that are designed
for regular travel over roads.
Finally, although debtor concedes this matter could be “disposed of summarily”
with reference to the statutory definitions of exempt homesteads, debtor encourages
the Court to adopt a broad concept of “homestead” consistent with the policy goal of
providing debtors with shelter. Docket No. 20 at 16-17. W hile the Court is sympathetic
to debtor’s argument, and while it is undisputed that the truck served as debtor’s living
quarters, the Court is “limited to those exemptions expressly provided by the statutes of
this state.” Colo. Rev. Stat. § 13-54-107.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that the June 24, 2015 Memorandum Opinion and Order on Homestead
Exemption [Docket No. 13-1 at 56-66] is AFFIRMED.

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DATED March 24, 2016.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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