NOT FOR PUBLICATION*

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE TENTH CIRCUIT

_________________________________

IN RE AUSTIN FOX JENNINGS,

 Debtor. 

__________________________________

AUSTIN FOX JENNINGS,

 Appellant,

v.

RANDY L. ROYAL, Chapter 7 Trustee,

 Appellee.

BAP No. WY-17-002

Bankr. No. 10-21436

Chapter 7

OPINION

_________________________________

Appeal from the United States Bankruptcy Court

for the District of Wyoming

_________________________________

Submitted on the briefs.**

_________________________________

Before NUGENT, SOMERS, and MOSIER, Bankruptcy Judges.

_________________________________

NUGENT, Bankruptcy Judge.

 * This unpublished opinion may be cited for its persuasive value, but is not 

precedential, except under the doctrines of law of the case, claim preclusion, and issue 

preclusion. 10th Cir. BAP L.R. 8026-6.

** After examining the briefs and appellate record, the Court has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. Bankr. P. 8019(b). The case is therefore submitted without oral 

argument.

FILED

U.S. Bankruptcy Appellate Panel

of the Tenth Circuit

November 21, 2017

Blaine F. Bates

Clerk
2

_________________________________

Section 522(b)(3)(B) of the Bankruptcy Code1 exempts from property of the estate 

any property of the debtor that is held in a tenancy by the entirety, to the extent that 

property is exempt from process under nonbankruptcy law (the “TBE” or “entireties” 

exemption).2 Under Wyoming common law, property that is held by a married couple in 

a tenancy by the entirety can be claimed exempt by a debtor to the extent that the equity 

in the real property exceeds the amount of the couple’s joint debts.3 Tenancy by the 

entirety property is not exempt from execution for the joint obligations of the husband 

and wife.4 So, the extent of the TBE exemption under Wyoming law depends on the 

amount of joint claims against the husband and wife.

Austin Jennings filed an individual Chapter 7 bankruptcy on December 9, 2010. 

His wife Sheridan Jennings did not file. Before Jennings filed, the couple acquired a 

home in Casper, Wyoming. In Jennings’s schedules, he listed several joint claims against 

the two of them, including their home mortgage and a sizeable Internal Revenue Service

tax claim for prior years’ income taxes. He claimed the Casper home as his exempt 

homestead under the Wyoming homestead statute.5 He also claimed his entireties interest 

 1 All future references to “Code,” “Section,” and “§” are to the Bankruptcy Code, Title 11 

of the United States Code, unless otherwise indicated.

2 11 U.S.C. § 522(b)(3)(B).

3 In re Wenande, 107 B.R. 770, 774 (Bankr. D. Wyo. 1989).

4 Id. (citing Peters v. Dona, 49 Wyo. 306, 54 P. 2d 817 (1936)).

5 WYO. STAT. ANN. § 1-20-101 (West 2010). 
3

in it exempt under § 522(b)(3)(B).6 The trustee objected to the entireties exemption.7 A 

hearing on the exemption objection was continued at length because during the pendency 

of the bankruptcy case, Ms. Jennings sought relief from the Internal Revenue Service (the 

“IRS”) from joint liability on the tax claim under the “injured [sic] spouse”8 rule. The 

matter languished until late 2013 when the IRS ruled against Ms. Jennings. She then 

appealed her joint tax liability to the United States Tax Court (the “Tax Court”). The Tax 

Court concluded that Ms. Jennings was indeed jointly liable for back taxes amounting to 

$114,068.30. In a series of orders, the bankruptcy court held that Jennings could claim 

the entireties exemption “to the extent that the equity exceeds the total amount of the 

debts owed jointly by the debtor and his non-filing spouse.”9 The debtor appealed and we 

affirm. 

Jurisdiction and Standard of Review

This Court has jurisdiction to hear timely-filed appeals from “final judgments, 

orders, and decrees” of bankruptcy courts within the Tenth Circuit.10 On June 5, 2015, 

 6 Schedule C, in Appellant’s App. at 24.

7 Trustee’s Amended Objection to Debtor’s Claim of Exemption, in Appellant’s App. at 

39-40. 

8 Ms. Jennings claimed relief under the “innocent spouse” rule. See infra note. 30.

9 Order Granting Motion to Alter or Amend Order on Trustee’s Amended Objection to 

Debtor’s Claim of Exemptions at 8, in Appellant’s App. at 96-103. See also Order on 

Trustee’s Amended Objection to Debtor’s Claim of Exemption, in Appellant’s App. at 78-

82; and Order Approving Stipulation on Exemption Objections and Order Vacating 

Hearing, in Appellant’s App. at 119-20.

10 28 U.S.C. § 158(a)(1), (b)(1), and (c)(1); Fed. R. Bankr. P. 8001.
4

the bankruptcy court ruled that Jennings could take the entireties exemption, but that the 

amount of the exemption could not be determined until the tax appeal concerning the 

extent of the couple’s joint taxes had been decided (the “June 2015 Order”).11 Jennings 

appealed, and, at the urging of the Trustee, another panel of this Court dismissed the 

appeal as interlocutory.12 Jennings now contends that the June 2015 Order became final

when the parties’ stipulation resolving the exemption dispute was approved by the 

bankruptcy court and entered on January 12, 2017 (the “2017 Order”).

13 We agree. Fed. 

R. Bankr. P. 8002 provides that an appeal from a bankruptcy court’s final order must be 

taken not later than fourteen days after that order’s entry. Jennings filed his notice of 

appeal on January 20, 2017.

After the Tax Court ruled that Ms. Jennings was jointly liable for over $114,000 

with Jennings,

14 the parties filed a stipulation stating that the issues concerning the 

exemption had been resolved by the June 2015 Order and no further evidentiary hearing 

was necessary.

15 With the Tax Court’s decision, the value of the entireties exemption 

(i.e., the value of the homestead remaining after subtracting the amount of the couple’s

 11 June 2015 Order at 7, in Appellant’s App. at 102.

12 In re Jennings, BAP No. WY-15-025 (10th Cir. BAP July 9, 2015) (order dismissing 

case for lack of appellate jurisdiction) (stating that appealed orders were interlocutory).

13 Stipulation on Exemption Objections, in Appellant’s App. at 116-18; Order Approving 

Stipulation on Exemption Objections and Order Vacating Hearing, in Appellant’s App. 

at 119-20.

14 Decision at 1, in Appellant’s App. at 107.

15 Stipulation on Exemption Objections at 2, in Appellant’s App. at 117.
5

joint debts for which it might be liable) became readily ascertainable. By its terms, the 

June 2015 Order could not be final until the Tax Court ruled. The Trustee attached a copy 

of the Tax Court’s decision to his January 11, 2016 status report, but the mere fact of the 

Tax Court order’s attachment did not have the effect of rendering the June 2015 Order 

final.16 A year later, on January 12, 2017, the bankruptcy court accepted the stipulation 

between the debtor and Trustee,17 entering the 2017 Order that, in part, stated the validity 

of the entireties exemption had been resolved by the June 2015 Order and no issues 

remained.

18 That order was the final order that “ends the litigation on the merits and 

leaves nothing for the court to do but execute the judgment,” 19 and from which a timely 

appeal was taken. Therefore, we have jurisdiction over this appeal.

 16 Decision, in Appellant’s App. at 107-08 (attached to Status Report to the Court, in 

Appellant’s App. at 105-06). See Fed. R. Civ. P. 54(a) and Fed. R. Bankr. P. 7054, made 

applicable to contested matters by Fed. R. Bankr. P. 9014(a). See Zinna v. Congrove, 755 

F.3d 1177, 1181 (10th Cir. 2014) (“An order is final if it contains ‘a complete act of 

adjudication’ and evidences the [ ] court’s intention that it is the court’s final act in the 

matter.”).

17 Stipulation of Exemption Objections, in Appellant’s App at 116-118.

18 2017 Order, in Appellant’s App. at 119. A bankruptcy court order granting or denying 

an exemption is a final order. Duncan v. Zubrod (In re Duncan), 294 B.R. 339, 341-42 

(10th Cir. BAP 2003).

19 Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996) (quoting Catlin v. United 

States, 324 U.S. 229, 233 (1945)).
6

This appeal involves a review of the bankruptcy court’s legal conclusions 

concerning the debtor’s eligibility to claim the Wyoming common law TBE exemption 

and the extent of that exemption. We review legal conclusions de novo.

20

Facts

After Austin Jennings filed this Chapter 7 case, Randy Royal was appointed 

Chapter 7 trustee. Jennings and his wife purchased their home in Casper before Mr. 

Jennings filed.21 They hold it as tenants by the entirety, a species of title that is 

recognized by Wyoming common law. When Jennings filed his case, he claimed one 

hundred percent of the value of the home exempt under § 522(b)(3)(B). That section 

exempts entireties or joint tenant interests in property to the extent they are exempt from 

process under nonbankruptcy law. He also claimed the less generous Wyoming statutory 

homestead exemption of $10,000.22 According to the property tax assessor’s statement, 

the market value of the property was $304,823.

23 It is encumbered by a $132,858 

 20 In re Borgman, 698 F.3d 1255, 1259 (10th Cir. 2012) (Validity of claimed state law 

exemption is reviewed de novo, without deferring to the bankruptcy court’s interpretation 

of state law.); In re Duncan, 294 B.R. at 342.

21 Trustee’s Deed Exhibit 1 Trustee’s Memorandum in Support of Objection to Claim of 

Exemption, in Appellant’s App. at 74.

22 WYO. STAT. ANN. § 1-20-101 (West 2010). The Wyoming homestead exemption 

amount was $10,000 on the date of Jennings’s bankruptcy petition. It was raised to 

$20,000 in 2012.

23 Property Tax and Assessment Information Exhibit 1 Debtor’s Memorandum in Support 

of his Exemption Claim, in Appellant’s App. at 68. 
7

mortgage securing a debt jointly owed by Jennings and his wife.24 On Schedule C, 

Jennings stated the current value of his interest in the home was $152,411.50 – apparently 

representing the value of his one-half interest.

25 The Trustee objected to the entireties

exemption.

26

Jennings had scheduled more than the jointly-owed mortgage debt, including a

$116,629 unsecured priority claim of the IRS that he initially listed as jointly owed.27

According to the claims register, the IRS filed an amended proof of claim of $421,691.41 

on January 22, 2015, seeking a $11,620.60 priority claim and a $119,621.44 unsecured

claim.

28 Jennings’s wife applied to the IRS to be treated as an “innocent spouse,” which if 

fully allowed, may have absolved her of her joint liability on the tax debt.

29 After the IRS 

denied that application, she appealed to the Tax Court.

 24 Schedule D, in Appellant’s App. at 25. Using these figures, Jennings had $171,965 in 

equity in the home before deducting any other joint debts. 

25 Schedule C, in Appellant’s App. at 24.

26 Trustee’s Objection to Debtor’s Claim of Exemption, in Appellant’s App. at 37-40.

27 Schedule E, in Appellant’s App. at 28. 

28 Appellant’s App. at 44.

29 The parties have variously referred to Ms. Jennnings’s efforts for relief from joint 

liability for the tax debt under both the “injured spouse” rule and the “innocent spouse” 

rule. Different tax forms are filed for the respective relief but both types of relief may 

alter a spouse’s allocation of liability for taxes on a jointly filed return. IRS Form 8379 is 

filed for “injured spouse” relief. This enables the “injured spouse” to get back their share 

of a joint refund where the joint overpayment is applied to a past-due obligation of the 

other spouse. See https://www.irs.gov/forms-pubs/form-8379-injured-spouse-allocation 

(viewed Nov. 20, 2017). IRS Form 8857 is filed for “innocent spouse” relief. This relief 

is available if the other spouse should be solely responsible for an erroneous item or an 

underpayment of tax on the joint tax return. See www.irs.gov/form8857 (viewed Nov. 20, 
8

Jennings and the Trustee initially agreed that the exemption issues were not ripe 

for trial until the Tax Court ruled on Ms. Jennings’s appeal. Then, in February of 2015, 

Jennings’s counsel requested that the bankruptcy court hear and consider the legal merits 

of the Trustee’s objection. After receiving briefs, the bankruptcy court entered an order 

dated February 11, 2015, stating that the decision whether the debtor was entitled to take 

the TBE exemption depended on whether Ms. Jennings was jointly liable for the tax debt, 

the issue then pending before the Tax Court (the “February 2015 Order”).

30 Jennings 

moved to alter or amend that decision.31 After another hearing, the bankruptcy court 

entered the June 2015 Order, stating that “Wyoming law allows a debtor to exempt 

property held as tenants by entireties.”32 The bankruptcy court further held:

The allowable exemption provides the debtor an exemption in the real 

property, to the extent that the equity exceeds the total amount of debts 

owed jointly by the Debtor and his non-filing spouse. In this case, the 

Debtor is allowed this claimed exemption. However, the amount of the 

Debtor’s exemption cannot be determined until the appeal pending in the 

Tax Court is entered.33

 

2017). The only documentation of the relief sought by Ms. Jennings is the final stipulated 

Tax Court decision entered November 12, 2015 referencing I.R.C. § 6015(f) and it states 

that there were no overpayments in income tax. Appellant’s App. at 107-08. Based upon 

the limited facts of record before this Panel, and the fact that the Jennings did not pay 

their tax liability, it would appear that Ms. Jennings sought “innocent spouse” relief. See 

also 26 U.S.C. § 6015 (Relief from joint and several liability on joint return). In any 

event, the theory under which Ms. Jennings sought relief from joint liability for the tax 

debt is not material to the resolution of this appeal.

30 February 2015 Order, in Appellant’s App. at 78-82.

31 Motion for Further Findings and/or to Alter or Amend Order, in Appellant’s App. at 

85-87.

32 June 2015 Order at 7, in Appellant’s App. at 102.

33 Id. (second emphasis added).
9

Jennings appealed the June 2015 Order, but because it left open the possibility that 

Jennings might not have “equity”34 above the joint claim to exempt, another panel of this 

Court concluded that it was interlocutory and dismissed the appeal.35 Then, in November 

2015, the Tax Court entered its decision accepting an agreement between Ms. Jennings 

and the IRS that Ms. Jennings was jointly liable with Jennings for $114,068.30 of the tax 

debt.36 The Trustee attached a copy of that ruling to a status report dated January 11, 

2016 and filed it with the bankruptcy court.

37 In an order dated November 11, 2016, the 

bankruptcy court set the exemption objection for evidentiary hearing in January 2017.38

Jennings and the Trustee requested a status conference after which they submitted a 

Stipulation on Exemption Objections39 that recited the TBE exemption “was resolved by 

this court on June 5, 2015 by [the June 2015 Order],”40 stated that issues surrounding 

certain personal property exemptions had been resolved, and advised the bankruptcy 

 34 Id.

35 In re Jennings, BAP No. WY-15-025 (10th Cir. BAP July 9, 2015) (order dismissing 

case for lack of appellate jurisdiction) (stating the June 2015 Order and February 2015 

Order were interlocutory).

36 Decision, in Appellant’s App. at 107-08. This joint debt would further reduce the 

amount of debtor’s exemption: $171,965 equity - $114,068.30 joint tax liability = 

$57,896.70.

37 Status Report to the Court, in Appellant’s App. at 105-06.

38 Order Scheduling Evidentiary Hearing on Trustee’s Objection to Exemption, in 

Appellant’s App. at 109-10.

39 Appellant’s App. at 116.

40 Id. at 2, in Appellant’s App. at 117.
10

court that a hearing was unnecessary.41 The bankruptcy court then entered the 2017 

Order, approving the parties’ stipulation and finding that the “issue of the debtor’s claim 

of exemption in his real property was resolved by this Court on June 5, 2015 by [the June 

2015 Order]”42 and that no further issues relating to the debtor’s exemption claims 

remained.43 This appeal followed.

Analysis

Wyoming law provides that when a married couple acquires land by a deed “to 

husband and wife,”44 without saying more, a tenancy by the entireties is created.45 The 

Jennings’s deed to their Casper property fits this conveyance description.46 The 

Wyoming Supreme Court has described the nature of a tenancy by the entireties:

“A conveyance or devise to two persons, who are husband and wife at the 

time property vests in them,” says 2 Thompson on Real Property, 939, 

§ 1735, “creates an estate by entireties. By reason of their legal unity by 

marriage, they together take the whole estate as one person. Neither has a 

separate estate or interest in the land, but each has the whole estate. Upon 

the death of one the entire estate and interest belongs to the other, not by 

virtue of survivorship, but by virtue of the title that vested under the 

original limitation.”47

 41 Id.

42 2017 Order, in Appellant’s App. at 119-20.

43 Id.

44 Witzel v. Witzel, 386 P.2d 103, 105 (Wyo. 1963).

45 Id.

46 Trustee’s Deed Exhibit 1 Trustee’s Memorandum in Support of Objection to Claim of 

Exemption, in Appellant’s App. at 74.

47 Peters v. Dona, 54 P.2d 817, 819–20 (Wyo. 1936) (emphasis added). See also Ward 

Terry & Co. v. Hensen, 297 P.2d 213, 214-15 (Wyo. 1956).
11

Property that is held in the entirety cannot be subjected to a husband’s debt during the life 

of the wife without her consent.48 The husband and wife “together take the whole estate 

as one person, and ‘neither has a separate estate of interest in the land, but each has the 

whole estate.’”49 Likewise, Wyoming law provides that property held in the entirety 

cannot be subjected to the individual debts of either spouse.50 Because neither husband 

nor wife has a separate interest or estate, neither one can alienate or encumber TBE 

property without the other spouse’s consent. 

The Bankruptcy Code exempts a debtor’s entirety interest in § 522(b)(3)(B) by

exempting—

Any interest in property in which the debtor had, immediately before the 

commencement of the case, an interest as a tenant by the entirety or joint 

tenant to the extent that such interest as a tenant by the entirety or joint 

tenant is exempt from process under applicable nonbankruptcy law.51

Accordingly, Wyoming bankruptcy courts traditionally have held that Wyoming debtors 

may claim their entirety interests exempt because those interests would be “exempt from 

 48 Ward Terry, 297 P.2d at 215. See also Colo. Nat’l Bank v. Miles, 711 P.2d 390, 393-94 

(Wyo. 1985).

49 Zubrod v. Duncan (In re Duncan), 329 F.3d 1195, 1201 (10th Cir. 2003) (quoting

Talbot v. United States, 850 F.Supp. 969, 973 (D. Wyo. 1994)) (quoting Peters, 54 P.2d

at 820).

50 Peters, 54 P.2d at 826. See also Talbot, 850 F. Supp. at 973. (“[P]roperty held as a 

tenancy by the entireties ‘is not subject to execution or other creditor's process for the 

separate debts of one of the spouses.’”). 

51 11 U.S.C. § 522(b)(3)(B) (emphasis added).
12

process”52 as a matter of Wyoming law.53 The leading case is In re Wenande, where the 

bankruptcy court stated that while TBE property may not be used to satisfy individual 

claims against either debtor it may be used to satisfy the husband and wife’s joint debts. 

In effect, under Wyoming law, TBE property is not exempt from joint claims against both 

spouses. Thus, the amount of the exemption depends on the existence of joint creditors. 

The Wenande bankruptcy court concluded:

The amount of entireties property that these joint debtors may exempt out 

of their estate under § 522(b)(2)(B) is their equity in the entireties property, 

less the total sum of all joint claims against both debtors. If the sum of the 

total claims held by creditors with claims against both debtors exceeds the 

debtors’ equity in their entireties property, then none of their entireties 

property may be exempted from the estate. If there were not a single 

creditor with a claim against both of the debtors, their entireties property 

would be totally exempt.54

Any entireties property that is not exempt remains property of the estate. Once a debtor 

claims an exemption, the burden to prove that the exemption is not proper shifts to the 

Trustee.55

Jennings does not challenge these legal principles. He instead relies on several 

other arguments to defeat the Trustee’s efforts to administer that part of Jennings’s TBE 

property that may not be exempt. He first argues that the Trustee may not “stand in the 

 52 Id.

53 In re Wenande, 107 B.R. 770, 774 (Bankr. D.Wyo. 1989) (joint debtors case); In re 

Welty, 217 B.R. 907, 911 (Bankr. D. Wyo. 1998) (applying Wenande in single debtor 

case with non-filing spouse).

54 Wenande, 107 B.R. at 774.

55 Fed. R. Bankr. P. 4003(c).
13

shoes of”56 the IRS to challenge the exemption. He argues, without authority, that the 

“particular nature”57 of tax debt precludes the Trustee from challenging the exemption. 

Jennings mischaracterizes the Trustee’s position in this case. Jennings relies on the 

Fourth Circuit Court of Appeals decision in Schlossberg in vain.58 There, the Chapter 7 

trustee sought to invoke § 544(a)(2) hypothetical creditor status to step into the shoes of 

the IRS in an effort to reach TBE property debtor owned with her non-filing spouse and 

thwart the debtor’s exemption claim under Maryland law. The Fourth Circuit rejected the 

trustee’s attempt to invoke § 544(a)(2), stating that the dispositive issue was “whether 

§ 544(a)(2) vests a trustee with the rights and powers of the IRS as a hypothetical creditor 

to penetrate the entireties exemption for the benefit of the individual creditors of the 

debtor.”59 Here, the debt in question is a joint liability to the IRS; in Schlossberg it was 

the debtor’s individual debt. As in Wyoming, Maryland law exempts TBE property from 

process executed by the holder of a claim against one spouse.60 The Fourth Circuit also 

noted that § 544(a)(2) confers upon a trustee the rights and powers of a hypothetical 

“creditor that extends credit to the debtor.”61 The IRS is not a “creditor that extends 

 56 Appellant’s Br. 10.

57 Id. at 11.

58 Schlossberg v. Barney, 380 F.3d 174 (4th Cir. 2004).

59 Schlossberg, 380 F.3d at 177 (emphasis added).

60 Id. at 178. See Ward Terry & Co. v. Hensen, 297 P.2d 213, 215; Colo. Nat’l Bank v. 

Miles, 711 P.2d 390, 393-94 (Wyo. 1985).

61 11 U.S.C. § 544(a)(2).
14

credit”62 within the meaning of § 544(a)(2) and therefore the trustee cannot step into the 

shoes of the IRS. A § 544(a)(2) hypothetical creditor’s debt is voluntarily incurred; a 

debtor’s tax liability is not the product of a voluntary extension of credit.63 

In short, the trustee could not invoke § 544(a)(2) to defeat the debtor’s entireties 

exemption. Schlossberg is also irrelevant here because the Trustee did not invoke 

“strong-arm” powers under § 544(a)(2). Instead, he claimed that the joint debts, including 

the tax debt, of Jennings and his non-filing spouse reduced the extent of the entireties 

exemption, relying on In re Wenande.

Jennings further suggests that a trustee cannot not use a joint debt to exercise 

control over a non-debtor’s property because a non-filing spouse’s TBE interest is not 

property of the estate. But Jennings’s interest undoubtedly is part of the estate’s property; 

that interest is an indivisible interest in the whole property.

64 Debtors cannot shield 

property from the estate simply because it is TBE property.65

Jennings’s next argument was not presented to the bankruptcy court and is based 

upon facts occurring after the June 15 Order, after the conclusion of the tax appeal, and 

 62 Id.

63 Schlossberg, 380 F.3d at 180-81. See § 544(a)(2) (voiding transfers that are voidable 

by “a creditor that extends credit to the debtor.”).

64 Peters, 54 P.2d at 820; Zubrod v. Duncan (In re Duncan), 329 F.3d 1195, 1201 (10th 

Cir. 2003); In re Anselmi, 52 B.R. 479, 483 (Bankr. D. Wyo. 1985) (debtor’s interest in 

entirety property is property of debtor’s estate under 11 U.S.C. § 541(a)(3)).

65 In re Wenande, 107 B.R. 770, 774-75 (Bankr. D. Wyo. 1989) (concluding joint 

debtors’ non-exempt TBE property is property of the estate and may be used to satisfy all 

creditor claims.); In re Welty, 217 B.R. 907, 911 (Bankr. D. Wyo. 1989) (applying 

Wenande in single debtor spouse case); Anselmi, 52 B.R. at 483.
15

after Jennings filed this appeal.

66 Nevertheless, we note that on March 31, 2017, the 

Trustee filed an adversary proceeding to sell the TBE property under § 363(h).67 The 

bankruptcy court may determine whether the Casper property can be feasibly partitioned 

in kind or whether it must be sold and the proceeds divided between the estate and the 

non-debtor spouse. That proceeding is not relevant to the exemption issues presented in 

this appeal; nor is it complete. A discussion of its merits is not properly before us.

Finally, Jennings claims that the appealed order somehow violates the distribution 

priorities established by § 726(a).68 Jennings appears to conflate allowing the exemption 

with implementing the distribution scheme under the Bankruptcy Code.69 This issue is 

also premature because it does not appear that any distribution has occurred. 

Conclusion

All that is before us today is the June 2015 Order that upholds Jennings’s right to 

claim his entireties interest exempt so long as that interest is greater than Mr. and Ms. 

 66 Issues and arguments not raised below will not ordinarily be considered on appeal. 

Rademacher v. Colo. Ass’n. of Soil Conservation Dists. Med. Benefit Plan, 11 F.3d 1567, 

1571-72 (10th Cir. 1993). An appellate court may only consider materials actually before 

the trial court. Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1148 (10th Cir. 1990).

67 11 U.S.C. § 363(h); Appellant’s App. at 126-31.

68 11 U.S.C. § 726.

69 Wenande observes that entirety property that is not exempt is property of the estate. 

State law determines the extent of the exemption, but bankruptcy law, § 726, determines 

distribution and nowhere provides specifically for joint creditors. 107 B.R. at 774-75, 

citing Kalevitch, Some Thoughts on Entireties in Bankruptcy, 60 Am. Bankr. L.J. 141, 

148 (Spring, 1986).
16

Jennings’s joint indebtedness. Because we agree that he may exercise that exemption to 

that extent, we AFFIRM.