Thaw v. Moser
MEMORANDUM AND ORDER. Consistent with the foregoing analysis, the judgment of the bankruptcy court is AFFIRMED, and the Clerk of Court is directed to close the case. Signed by Judge Marcia A. Crone on 1/16/14. (cm, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 4:13-CV-276
MEMORANDUM AND ORDER
Pending before the court is Kernell Thaw’s (“Thaw” or “Appellant”) appeal from the
United States Bankruptcy Court’s Order, entered March 20, 2013, sustaining trustee Christopher
Moser’s (“Moser” or “Trustee”) Objection to Homestead Exemption. Having reviewed the
bankruptcy judge’s opinion and order, the record, the submissions of the parties, and the
applicable law, the court is of the opinion that the bankruptcy court’s decision should be affirmed.
Stanley Thaw (“Debtor”) and Thaw were married on June 9, 2001. The following year,
Debtor and Dr. Leslie Schachar (“Schachar”) formed Theramedics, a health care business that
proved to be unprofitable. In 2004 and 2006, Theramedics defaulted on various obligations that
had been guaranteed by Debtor and Schachar. Schachar paid the obligations and subsequently
sued to collect Debtor’s share. Schachar recovered a judgment against Debtor in November 2009,
and Debtor’s appeals were unsuccessful. After Schachar attempted to enforce his judgment,
Debtor filed for bankruptcy protection and Moser was appointed Chapter 7 Trustee of Debtor’s
At the time of Debtor’s bankruptcy filing, the Thaws were living in their homestead at
5197 Brandywine in Frisco, Texas (“Brandywine Property”). Debtor claimed an unlimited
homestead exemption under the Texas Constitution and the Texas Property Code. See TEX.
CONST. ART. XVI, §§ 50 and 51; TEX. PROP. CODE §§ 41.001–.002. Trustee objected to
Debtor’s exemption in a timely manner, arguing that it should be limited by 11 U.S.C. § 522(p),
which caps the homestead exemption at $146,450 if the property was acquired within 1,215 days
of the bankruptcy filing.2 Debtor stipulated that Trustee had established the requirements of
§ 522(p) and that the homestead exemption was correctly capped at $146,450.
Thaw, however, opposed Trustee’s objection, asserting that her community property
interest in the Brandywine Property is protected by the Texas Homestead Act. She argued that
under Texas law, her homestead interest is a vested property right, similar to a life estate, which
cannot be taken without just compensation. Thaw relied almost exclusively on one case, United
States v. Rodgers (“Rodgers”), which characterized the Texas homestead right as “not a mere
statutory entitlement, but a vested property right.” 461 U.S. 677, 686 (1983).
The bankruptcy court held that Thaw has no separate and distinct, exempt homestead
interest in the Brandywine Property that would allow her to claim a homestead exemption. The
As the non-debtor spouse, Thaw did not join in the filing.
Section 522(p) was intended to close the so-called “mansion loophole” granted to debtors who
move to take advantage of some states’ virtually unlimited homestead exemptions. See In re Blair, 334
B.R. 374, 377-78 (Bankr. N.D. Tex. 2005). The Judicial Conference of the United States has since
increased the cap to $155,675.
bankruptcy court found Rodgers inapplicable in the context of bankruptcy law. Instead, the court
cited a more-recent and confusingly similarly-styled Fifth Circuit case, In re Rogers (“Rogers”),
which held that a homestead interest gives “protective legal security rather than vested economic
rights.” 513 F.3d 212, 224 (2008) (quoting Heggen v. Pemelton (“Heggen”), 836 S.W.2d 145,
148 (Tex. 1992)). Thaw filed the instant appeal on May 17, 2013, asserting that the bankruptcy
court erred by sustaining Trustee’s objection because the forced sale of her homestead, without
just compensation, amounts to an unconstitutional taking.
District courts have jurisdiction to hear appeals from “final judgments, orders, and
decrees” and, with leave of the court, “other interlocutory orders and decrees” of bankruptcy
judges. 28 U.S.C. § 158(a). Pursuant to 28 U.S.C. § 158(c)(2), an appeal from the bankruptcy
court to the district court “shall be taken in the same manner as appeals in civil proceedings
generally are taken to the courts of appeals from the district courts . . . .” Id. Therefore, “when
reviewing a bankruptcy court’s decision in a ‘core proceeding,’ a district court functions as a[n]
appellate court.” Webb v. Reserve Life Ins. Co. (In re Webb), 954 F.2d 1102, 1103-04 (5th Cir.
1992); accord Perry v. Dearing (In re Perry), 345 F.3d 303, 308-09 (5th Cir. 2003); In re S.
White Transp., Inc., 473 B.R. 695, 698 (S.D. Miss. 2012), aff’d, 725 F.3d 494, 496 (5th Cir.
Standard of Review
In reviewing a decision of the bankruptcy court, Rule 8013 of the Federal Rules of
Bankruptcy Procedure requires the court to accept the bankruptcy court’s findings of fact unless
clearly erroneous and to examine de novo the conclusions of law. See In re Halo Wireless, Inc.,
684 F.3d 581, 586 (5th Cir. 2012); Drive Fin. Servs., L.P. v. Jordan, 521 F.3d 343, 346 (5th Cir.
2008); Texas v. Soileau (In re Soileau), 488 F.3d 302, 305 (5th Cir. 2007), cert. denied, 552 U.S.
1180 (2008). Mixed questions of law and fact are reviewed de novo. In re San Patricio Cnty.
Cmty. Action Agency, 575 F.3d 553, 557 (5th Cir. 2009). A finding of fact is clearly erroneous
when although there is evidence to support it, the reviewing court is left with a firm and definite
conviction that a mistake has been committed.
See Bertucci Contracting Corp. v. M/V
ANTWERPEN, 465 F.3d 254, 258-59 (5th Cir. 2006); see also In re Perry, 345 F.3d at 309
(quoting Robertson v. Dennis (In re Dennis), 330 F.3d 696, 701 (5th Cir. 2003)).
The bankruptcy court’s ruling that a non-spouse has no separate and distinct, exempt
homestead interest is a conclusion of law. See In re Mazoue, 240 B.R. 878, 880 (E.D. La. 1999)
(stating that a bankruptcy court’s decision to sustain an objection to a homestead exemption in a
Chapter 7 bankruptcy is a conclusion of law). Therefore, the court will review the bankruptcy
court’s decision de novo.
Arguments in Support of Appeal
The core of Thaw’s appeal is that she has a vested property interest in the homestead that
could not be taken without just compensation pursuant to the Fifth Amendment to the United States
Constitution. Specifically, Thaw argues that the bankruptcy court erred in four ways: first, by
incorrectly distinguishing the United States Supreme Court’s holding in Rodgers; second, by
misconstruing Fifth Circuit and Texas Supreme Court precedent by relying on Rogers; third, by
incorrectly ruling that Bankruptcy Code § 363 provides protection to Thaw’s interest in the
Brandywine Property; and fourth, by relying on additional case law that is distinguishable from
the present case.
The Homestead Exemption Does Not Constitute a Vested Property Right
“The Fifth Amendment, made applicable to the States through the Fourteenth Amendment,
provides that ‘private property’ shall not be taken for public use, without ‘just compensation.’”
Urban Developers LLC v. City of Jackson, 468 F.3d 281, 292 (5th Cir. 2006) (quoting U.S.
CONST. amend. V); Hatfield v. Scott, 306 F.3d 223, 226 (5th Cir. 2002) (quoting Phillips v.
Washington Legal Found., 524 U.S. 156, 163-64 (1998)). The purpose of the Takings Clause “is
to prevent the government from ‘forcing some people alone to bear public burdens, which, in all
fairness, and justice, should be borne by the public as a whole.’” United States Fid. & Guar. Co.
v. McKeithen, 226 F.3d 412, 416 (5th Cir. 2000) (quoting E. Enters. v. Apfel, 524 U.S. 498, 522
(1998)). To prevail on a takings claim, a plaintiff first “must demonstrate that he has a protectable
property interest.” Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262, 269 (5th Cir.
2012), cert. denied, 133 S. Ct. 2396 (2013) (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986,
1000 (1984)). Because the Constitution protects rather than creates property interests, courts must
“resort to ‘existing rules or understandings that stem from an independent source such as state law’
to define the range of interests that qualify for protection as ‘property’ under the Fifth and
Fourteenth Amendments.” Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1030 (1992) (quoting
Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)). Thaw’s argument thus depends
on whether the Texas homestead interest is a property right under state law.
Thaw relies on Rodgers to establish that Texas law grants her a protected homestead
interest in the Brandywine Property. In Rodgers, the United States Supreme Court considered
whether § 7403 of the Internal Revenue Code “empowers a [federal] district court to order the sale
of a family home in which a delinquent taxpayer had an interest at the time he incurred his
indebtedness, but in which the taxpayer’s spouse, who does not owe any of that indebtedness, also
has a separate ‘homestead’ right as defined by Texas law.” 461 U.S. at 677. The Court evaluated
the nature of the Texas homestead right and determined that, under the Texas Constitution, each
spouse in a marriage has “a separate and undivided possessory interest in the homestead, which
is only lost by death or abandonment, and which may not be compromised either by the other
spouse or by his or her heirs.” Id. at 685. It characterized the homestead right as “not a mere
statutory entitlement, but a vested property right.” Id. at 686. The Court determined there was
no “gratuitous confiscation” in Rodgers because compensation was paid to the nondelinquent
spouse. The Court ultimately held that § 7403 of the Internal Revenue Code empowers federal
district courts to order the sale of a home so long as the non-debtor spouse receives compensation
for the loss of the homestead interest. Id. at 697.
The bankruptcy court found Rodgers distinguishable from the present case for two reasons.
First, Rodgers was governed by the Internal Revenue Code, whereas this case deals exclusively
with the Bankruptcy Code. Second, Rodgers involved the use of community property to pay a
separate debt, whereas the present case involves the inclusion of community property in the
bankruptcy estate to pay community debts. Pursuant to 11 U.S.C. § 363(i), if community property
is to be sold, the nonbankrupt spouse has the right of first refusal. If the spouse does not exercise
that option, the trustee must distribute the proceeds of sale in proportion to the respective interests
of the estate and the spouse. Id. at § 363(j). Accordingly, the bankruptcy court held that the
Bankruptcy Code is consistent with Rodgers because it provides protection against “gratuitous
confiscation” of community property.
Thaw asserts that “while [Rodgers] arose in the context of the enforcement of an IRS lien[,]
the ruling recognizing the spouse’s homestead interest was not based on a unique interpretation
of the Internal Revenue Code.” Thaw emphasizes that “[t]he Supreme Court noted that if Internal
Revenue Code§ 7403 did not have this protection it would raise Fifth Amendment issues.”3
Further, Thaw contends that the Bankruptcy Code’s protections for non-filing spouses, such as a
right of first refusal on any proposed sale of homestead property and the requirement that sale
proceeds be distributed according to the interests of the estate and the non-filing spouse, do not
comport with the requirements of Rodgers because they failed to compensate Thaw adequately.
According to Thaw, the Bankruptcy Code’s provisions effectively “force the spouse to buy back
her homestead interest which should not have been lost in the first place.”
Thaw’s arguments are unpersuasive. The Supreme Court based its holding in Rodgers on
“what [it was] informed about the nature of the homestead estate in Texas, that it is the sort of
property interest for whose loss an innocent third-party must be compensated under § 7403.” 461
U.S. at 697. The Texas Supreme Court, however, has since clarified the nature of the homestead
interest in Texas. In Rogers, discussed in greater detail below, the Court unambiguously held that
Thaw misstates the Court’s language. The Supreme Court held that “if § 7403 allowed for the
gratuitous confiscation of one person’s property interest in order to satisfy another person’s tax
indebtedness, such a provision might pose significant difficulties under the Due Process Clause of the Fifth
Amendment.” 461 U.S. at 697 (emphasis added).
a homestead interest is “not a vested economic right.” In short, Thaw’s reliance on Rodgers is
misplaced because the Texas Supreme Court’s subsequent interpretation of the Texas homestead
interest supersedes and controls.
Second, Thaw cites no cases extending Rodgers’s holding to bankruptcy law, and the court
is unaware of any such authority. The court notes, however, that at least one other court has held
that “Rodgers deals exclusively with the Internal Revenue Code and has no application in this
[bankruptcy proceeding].” In re McCombs (“McCombs”), No. 07-3043, 2007 WL 4411909, at
*11 (Bankr. S.D. Tex. Dec. 17, 2007) (rev’d on other grounds), In re McCombs, 659 F.3d 503,
513 (5th. Cir. 2011), cert. denied, 132 S. Ct. 1810 (2012). In the absence of precedent applying
Rodgers’s holding in the bankruptcy context, the court declines to do so in this instance. Because
the court finds Rodgers inapplicable, the court need not address whether § 363 of the Bankruptcy
Code provides protection to Thaw’s interest in the Brandywine Property.
After Rodgers was decided, the United States Court of Appeals for the Fifth Circuit
examined the Texas homestead exemption in the bankruptcy context in Rogers and arrived at a
different conclusion, stating:
Unlike a homestead interest, title and equity both constitute vested economic
interests in the homestead property that can be acquired during the 1,215-day
period preceding the filing of the petition. These interests are vested because they
have an ascertainable economic value at the moment they are acquired by the
debtor. In contrast, for purposes of federal bankruptcy law, the homestead
exemption is valueless until it is claimed in bankruptcy, such that any value
attributable to the exemption is not realized by the debtor until after the filing of
Rogers, 513 F.3d at 224. In reaching its holding, the Fifth Circuit relied on the Texas Supreme
Court’s holding in Heggen, commenting that “[u]nder Texas law, ‘[t]he homestead interest is a
legal interest created by the constitution that provides prophylactic protection from all but [a few]
types of constitutionally permitted liens against homesteads. This interest . . . gives protective
legal security rather than vested economic rights.’” Id. at 224 (quoting Heggen, 836 S.W.2d at
Thaw claims the bankruptcy court erred by misconstruing both Rogers and Heggen.
According to Thaw, both Rogers and Heggen dealt with the concept of transferring the protective
homestead separate from the interest in the real property, whereas here, Moser is attempting to
take Thaw’s entire interest in the Brandywine property. Thaw’s argument, however, confuses an
interest in property with the protection of that interest from creditors. Both Rogers and Heggen
stand for the proposition that the Texas homestead interest is not a vested property right.
Accordingly, Moser is not taking anything from Thaw because the homestead interest is not a
cognizable private interest capable of being “taken” at all.
Moreover, Thaw’s argument that she has a separate, vested homestead property right that
did not enter the debtor’s estate and is not subject to the limits provided by Bankruptcy Code
§ 522(o) and (p), has been rejected by at least four other courts in Texas. See In re Bounds, 491
B.R. 440, 451 (Bankr. W.D. Tex. 2013); Dome Entm’t Ctr. v. Kim (In re Kim), 405 B.R. 179,
188 (Bankr. N.D. Tex. 2009); Douglass v. Langehennig (In re Douglass), No. 08-1007, 2008 WL
2944568, at *15 (Bankr. W.D. Tex. July 25, 2008); McCombs, No. 07-3043, 2007 WL 4411909,
at *7 (Bankr. S.D. Tex. Dec. 17, 2007). In McCombs, the bankruptcy court held that “the
[Bankruptcy] Code does not recognize [the non-debtor wife’s] claim to a homestead exemption
separate and distinct from the Debtor.” 2007 WL 4411909, at *8. Only the Debtor may exempt
property that has become property of the estate, which “‘effectively eliminates the rights of a non-
debtor spouse to manage and control community property.’” In re Kim, 405 B.R. at 187 (quoting
In re Rodriguez, 353 B.R. 144, 149 (Bankr. N.D. Tex. 2006)). “‘The Bankruptcy Code makes
no provision for a non-debtor to claim an exemption from the estate.’” Id. at 187-88 (quoting In
re Duncan, 294 B.R. 339, 344 (10th Cir. BAP 2003)).
Thaw argues that these cases are distinguishable. Nonetheless, she does not explain how
In re McCombs and In re Kim are distinguishable, merely noting that McCombs was not addressed
on appeal for procedural reasons and In re Kim is currently on appeal before the Fifth Circuit.
Both cases are on point, and In re Kim was affirmed by a district court.4 Thaw attempts to
distinguish In re Douglass by asserting that in that case, the non-filing spouse was attempting to
assert a “homestead” interest separate from an interest in the real estate, whereas here, Thaw
claims a community property interest in the Brandwine Property as her homestead. Thaw’s
distinction, however, is irrelevant because the characterization of the underlying property interest
as community or separate does not affect the nature of the Texas homestead interest. Rather, In
re Douglass reaffirms the broader principle that “[the homestead protection] gives protective legal
security rather than vested economic rights.” Heggen, 836 S.W.2d at 148.
The Fifth Circuit’s “interpretation of Texas law is binding on the district court, unless a
subsequent state court decision or statutory amendment renders [its] prior decision clearly wrong.”
Hughes v. Tobacco Inst. Inc., 278 F.3d 417, 421 (5th Cir. 2001) (citing Batts v. Tow-Motor
Forklift Co., 66 F.3d 743, 747 (5th Cir. 1995)). Therefore, the Fifth Circuit’s interpretation of
the Texas homestead interest in Rogers, in conjunction with the corroborating case law, compels
the court to hold that Thaw has no vested property interest in the homestead exemption.
McCombs was not reviewed by a district court because Appellant waived the homestead issue.
Consequently, because Thaw has no private property right in the homestead interest, no
unconstitutional taking occurred.
Consistent with the foregoing analysis, the judgment of the bankruptcy court is
AFFIRMED, and the Clerk of Court is directed to close the case.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 16th day of January, 2014.
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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