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United States Court of Appeals,

Fifth Circuit.

No. 94-30068

Summary Calendar.

In the Matter of Laurie Maria BROCATO, Debtor,

Laurie Maria BROCATO, Appellant,

v.

Cynthia Lee TRAINA, Appellee.

Sept. 6, 1994.

Appeal from the United States District Court for the Eastern

District of Louisiana.

Before GARWOOD, DAVIS and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

Does Louisiana law exempt from seizure a bankruptcy debtor's

real property occupied by the debtor as her home and owned by her

in indivision with another who is not the debtor's spouse? The

bankruptcy court and district court said no. Following our de novo

review, we agree and affirm.

FACTS

Debtor, Marie Louise Brocato, sought relief under Chapter 7 of

the Bankruptcy Code. She claimed a homestead exemption for her

residence in New Orleans which she owns in indivision with Mary

Louise Singleton. The trustee objected contending that the

homestead exemption provided by Article 12 § 9 of the Louisiana

Constitution of 1974, and Title 20 Section 1 of the Louisiana

Revised Statutes is not available for property owned in indivision

with another not the debtor's spouse. The bankruptcy court and
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district court agreed.

DISCUSSION

Article 12 Section 9 of the Louisiana Constitution of 1974

provides:

"The Legislature shall provide by law for exemptions from

seizure and sale, as well as waivers of and exclusions from

such exemptions. The exemption shall extend to at least

fifteen thousand dollars in value of a homestead, as provided

by law."

Title 20 Section 1 of the Louisiana Revised Statutes provides

in pertinent part:

A. The Bona fide homestead, consisting of a tract of land

or two or more tracts of land with a residence on the one

tract or a field, pasture, or garden on the other tract or

tracts, not exceeding one hundred sixty acres, buildings and

appurtenances, whether rural or urban, owned, and occupied by

any person, is exempt from any seizure and ale under any writ,

mandate or process whatsoever, except as provided by

Subsections C and D of this Section. This exemption extends

to fifteen thousand dollars in value of a homestead. It shall

extend to the surviving spouse or minor children of a deceased

owner and shall apply when the homestead is occupied as such

and title to it is in either the husband or wife but not to

more than one homestead owned by the husband or the wife. The

exemption shall continue to apply to a homestead otherwise

eligible while owned in indivision by the spouses, and

occupied by either of them, when the community property regime

of which the homestead is a part is dissolved by judgment

which so provides, pursuant to Articles 155, 159, or 2375 of

the Louisiana Civil Code. If either spouse becomes the sole

owner and continues to occupy the homestead as such, the

exemption as to that spouse shall be deemed to have continued

uninterrupted.

The Louisiana Supreme Court has not addressed the question

since adoption of the 1974 Constitution. We examine and give

"proper regard" to the decisions of other Louisiana courts which

have. Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct.

1776, 1783, 18 L.Ed.2d 886 (1967). The Supreme Court has addressed

the issue under earlier Constitution. We find an unbroken line of
 

1Additional cases from both the Supreme and appellate courts

are found collected in Gulfco, 482 So.2d at 1020. 

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Louisiana appellate court decisions beginning with Henderson v.

Hoy, 26 La.Ann. 156 (1874), and ending with Gulfco Finance Co. v.

Browder, 482 So.2d 1019 (La.App. 3rd Cir.1986), squarely holding

that property owned in indivision with others than a spouse and

children of that spouse in a community regime, cannot qualify for

the homestead exemption.1

Appellant argues that Gulfco is wrongly decided because the

law changed with the 1974 Constitution. It has, but not in this

regard. We agree with the Louisiana Third Circuit Court of Appeal

that:

"... the change in the law relates to the old requirement that

a party had to be the head of a household or have persons

dependent on him for support. This is no longer a

requirement. Now, "any person' may claim the exemption if he

owns and occupies the property. In addition, the exempted

value has changed." Gulfco, 482 So.2d at 1021.

As Appellee points out, to read the phrase "any person" in the

statute as broadly as Appellant does renders much of the statute

surplusage. Appellant argues that the words "any person" indicate

that anyone with a degree of ownership who occupies the property as

their home may claim the exemption. But that ignores the further

language in the statute which extends the exemption to "a homestead

otherwise eligible while owned in indivision by the spouses, and

occupied by either of them...." If the phrase "owned ... by any

person ..." included an owner in indivision, then the specific

extension to spouses and children in a community property regime

would be unnecessary. Additionally, to accept Appellant's reading
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of "any person" would necessarily include juridical persons and

even Appellant does not contend for that position.

The judgment of the district court is

AFFIRMED.