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FILED

NOV 07 2017

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. AZ-17-1110-FSKu

)

ABIGAIL J. DUNCAN, ) Bk. No. 2:15-bk-14927-PS

)

Debtor. )

_____________________________ )

)

ABIGAIL J. DUNCAN, )

)

Appellant, )

)

v. ) MEMORANDUM*

)

DALE D. ULRICH, )

)

Appellee. )

______________________________)

Argued and Submitted on October 26, 2017

at Phoenix, Arizona

Filed – November 7, 2017

Appeal from the United States Bankruptcy Court

for the District of Arizona

Honorable Paul Sala, Bankruptcy Judge, Presiding

 

Appearances: David L. Brown of Brown and Associates, PLLC 

argued on behalf of appellant Abigail J. Duncan;

Terry A. Dake argued on behalf of appellee Dale D.

Ulrich.

 

Before: FARIS, SPRAKER, and KURTZ, Bankruptcy Judges.

* This disposition is not appropriate for publication. 

Although it may be cited for whatever persuasive value it may

have, see Fed. R. App. P. 32.1, it has no precedential value, see

9th Cir. BAP Rule 8024-1.
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INTRODUCTION

Chapter 71 debtor Abigail J. Duncan appeals from the

bankruptcy court’s order sustaining chapter 7 trustee Dale D.

Ulrich’s (“Trustee”) objection to her homestead exemption. The

bankruptcy court found that, on the date of her bankruptcy

petition, Ms. Duncan intended to abandon the property as her

homestead. The issue of Ms. Duncan’s intent is a question of

fact. We discern no clear error and AFFIRM.

FACTUAL BACKGROUND

A. Prepetition events

Ms. Duncan and her then-husband resided in their home

located on Kingbird Drive in Gilbert, Arizona (the “Kingbird

Drive Property”) since 2006. In 2010, Ms. Duncan divorced her

husband and acquired his interest in the Kingbird Drive Property. 

Faced with the daunting prospect of making monthly mortgage

payments on her own, she obtained a modification of the existing

loan on the Kingbird Drive Property, which reduced the interest

rate on the loan to two percent per annum, with annual increases

to 5.25 percent in 2018.

At the end of 2013, realizing that she could no longer

afford to stay in the Kingbird Drive Property, Ms. Duncan decided

to move into a rental apartment on Market Street in Gilbert,

Arizona (the “Market Street Rental”). She continuously resided

at the Market Street Rental from January 10, 2014.2

1 Unless specified otherwise, all chapter and section

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532.

2 As of the evidentiary hearing, Ms. Duncan’s lease for the

(continued...)

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Ms. Duncan initially leased the Kingbird Drive Property to

Jan Krajniak and his wife from January 2014 through January 2015. 

Ms. Duncan thereafter orally agreed to allow the Krajniaks to

stay in the property until November 2017.

B. Bankruptcy filing and meeting of creditors

On November 23, 2015, Ms. Duncan filed her chapter 7

bankruptcy petition. On that date, she had been residing at the

Market Street Rental for nearly one year and eleven months. She

claimed a $150,000 exemption on the Kingbird Drive Property under

Arizona Revised Statutes section 33-1101(A). 

Ms. Duncan attended a § 341(a) meeting of creditors on

December 29, 2015. When the Trustee asked her about her claimed

homestead exemption and her intentions regarding the Kingbird

Drive Property, she testified that she could not afford to keep

the property and intended to sell it:

HEARING OFFICER: Okay. And what is the status of

[the Kingbird Drive Property]?

THE WITNESS: It’s currently rental. I have tried

to – I’m going to sell it. I have renters in there

right now. So, I want to get rid of it, because I’m

not going to be able to afford it for myself and two

kids. My salary’s not going to cut it.

. . . 

HEARING OFFICER: Are you intending to make any

more mortgage payments or are you going to let it get – 

THE WITNESS: Yeah. Yeah, because I want to just

get this done.

. . . 

2(...continued)

Market Street Rental continued through January 9, 2017. The

bankruptcy court found that she intended to extend her current

lease when it expired.

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HEARING OFFICER: You have it listed at all to try

and sell it?

MR. BROWN: We were waiting until you decided if

you were going to abandon it or not. 

(Emphases added.)

C. The Trustee’s objection to homestead exemption

On January 27, 2016, the Trustee filed a Motion to Extend

Exemption Deadline. He represented that he was attempting to

reach a settlement with Ms. Duncan regarding her claimed

homestead exemption and requested an extension of the objection

deadline to March 15. 

On February 5 - over a month after the meeting of creditors

and before the bankruptcy court ruled on the motion - the Trustee

filed an objection to the claimed homestead exemption

(“Objection”). The bankruptcy court subsequently granted the

motion to extend the deadline.

In his Objection, the Trustee argued that the Arizona

homestead exemption is only applicable to property “in which the

person resides.” Ms. Duncan had not resided at the Kingbird

Drive Property since late 2013 or early 2014, and she leased the

property to another person in January 2014. He also stated that

“the debtor testified that she has no intention of returning to

the property. Rather, she plans to sell the property or, as she

puts it, ‘I want to get rid of it.’ She further admitted she

cannot afford to keep the property.”

In response, Ms. Duncan contended that she had a valid

homestead exemption at the time she filed her bankruptcy petition

because she had resided at the Kingbird Drive Property from 2006

through January 2014. She argued that, although she was not then

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residing at the Kingbird Drive Property, she did not abandon the

homestead and did not intend to sell the property. She pointed

to her driver’s license and voter registration, which listed the

Kingbird Drive Property as her address, as well as the fact that

she had obtained an order in May 2015 preventing her ex-husband

from claiming any interest in the Kingbird Drive Property.

In March 2016, prior to the hearing on the Trustee’s

Objection, Ms. Duncan obtained a new modification of the mortgage

loan. The modification fixed the interest rate at four percent,

extended the amortization period to 2056, and set the monthly

payments at $2,016.44.

After an initial hearing, the court set an evidentiary

hearing and ordered the parties to file a joint pretrial

statement. The parties stipulated to certain facts, including

that “[t]he trustee filed a timely objection to the exemption

claimed by the Debtor in the Kingbird property . . . .” 

At the evidentiary hearing, Ms. Duncan testified that she

had been residing continuously at the Market Street Rental since

January 10, 2014 and intended to renew the lease for another year

beginning January 2017. She also testified that Mr. Krajniak had

been living continuously at the Kingbird Drive Property since

January 2014. She admitted that she listed her home address on

her 2014 and 2015 tax returns as the Market Street Rental and

reported the Kingbird Drive Property as a rental property.

The Trustee then asked Ms. Duncan about her statements

concerning the Kingbird Drive Property at the meeting of

creditors:

Q. So you said you want to get rid of [the Kingbird

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Drive Property]?

A. Yes.

Q. And that was what you were planning to do at the

time?

A. Yes.

Q. And that’s what you were planning to do when you

filed the bankruptcy case, was get rid of the house?

A. And if you see the last line, it said my salary’s

not going to cut it.

Q. So you needed to get rid of the house?

A. Things have changed since then.

Q. Okay. But I’m talking about when the bankruptcy was

filed and what you told the Trustee at the creditors’

meeting?

A. At that point in time, yes.

Ms. Duncan also agreed with the Trustee that, “[o]nce the trustee

decided not to abandon the property, then the Debtor changed her

mind about getting rid of it.”

The bankruptcy court took the matter under advisement and

entered a detailed ruling sustaining the Trustee’s Objection. It

first held that Ms. Duncan established her homestead at the

Kingbird Drive Property by residing there from 2006 through

January 2014. 

The critical question was whether Ms. Duncan had abandoned

her homestead interest. The court held that the mere fact that

Ms. Duncan moved from the Kingbird Drive Property and rented it

to Mr. Krajniak did not establish that she had permanently

removed from the property. Nevertheless, the court found that

the Trustee had established that Ms. Duncan had a clear intent to

permanently remove from the Kingbird Drive Property: Ms. Duncan

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had testified at the meeting of creditors that “she could not

afford the Kingbird Property, that she wanted to get rid of the

property and that she intended to sell it.” The court found that

she changed her mind only when she obtained a loan modification

in March 2016.

Regarding Ms. Duncan’s intention on the petition date, the

court found: 

The Debtor’s testimony that she changed her mind

regarding the sale of the property after the March 2016

loan modification reinforces that her prior intention,

expressed at the first meeting of creditors, which

[sic] was to sell the Kingbird Property. The loan

modification, and the self-admitted change in the

Debtor’s desire to sell the property, occurred more

than three months after the Petition Date. The

Debtor’s testimony at the first meeting of creditors

that she intended to sell the property was more close

in time to the Petition Date and is, therefore, more

instructive as to the Debtor’s intent on that date.

Ms. Duncan timely filed her notice of appeal. 

JURISDICTION

The bankruptcy court had jurisdiction pursuant to 28 U.S.C.

§§ 1334 and 157(b)(2)(B). We have jurisdiction under 28 U.S.C.

§ 158.

ISSUES

(1) Whether the bankruptcy court erred in sustaining the

Trustee’s Objection to Ms. Duncan’s homestead exemption based on

Ms. Duncan’s intention to remove permanently from the Kingbird

Drive Property on the petition date.

(2) Whether the Objection was untimely. 

STANDARDS OF REVIEW

A debtor’s right to claim an exemption is a question of law

that we review de novo. Similarly, we review de novo the

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bankruptcy court’s interpretation of state exemption laws. Diaz

v. Kosmala (In re Diaz), 547 B.R. 329, 333 (9th Cir. BAP 2016). 

De novo review requires that we consider a matter anew, as if no

decision had been rendered previously. United States v.

Silverman, 861 F.2d 571, 576 (9th Cir. 1988).

With regard to claimed exemptions, “the issue of a debtor’s

intent is a question of fact to be reviewed under the clearly

erroneous standard.” Kelley v. Locke (In re Kelley), 300 B.R.

11, 16 (9th Cir. BAP 2003) (citing Coughlin v. Cataldo

(In re Cataldo), 224 B.R. 426, 428–29 (9th Cir. BAP 1998)). “To

be clearly erroneous, a decision must strike us as more than just

maybe or probably wrong; it must . . . strike us as wrong with

the force of a five-week-old, unrefrigerated dead fish.” Papio

Keno Club, Inc. v. City of Papillion (In re Papio Keno Club,

Inc.), 262 F.3d 725, 729 (8th Cir. 2001) (quoting Parts & Elec.

Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir.

1988)); see Anderson v. City of Bessemer City, 470 U.S. 564, 573

(1985) (A factual finding is clearly erroneous if, after

examining the evidence, the reviewing court “is left with the

definite and firm conviction that a mistake has been

committed.”). The bankruptcy court’s choice among multiple

plausible views of the evidence cannot be clear error. United

States v. Elliott, 322 F.3d 710, 714 (9th Cir. 2003).

DISCUSSION

A. The bankruptcy court did not clearly err in determining that

Ms. Duncan intended to remove permanently from the Kingbird

Drive Property.

Ms. Duncan argues that the Trustee failed to establish that

she had a clear intent to abandon her homestead at the time she

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filed her bankruptcy petition. We disagree. The bankruptcy

court’s factual determination of Ms. Duncan’s intention on the

date of her bankruptcy filing was not clearly erroneous.

1. Abandonment of homestead in Arizona requires a clear

intent of a permanent removal. 

Our inquiry begins with the relevant statutes. Arizona has

opted out of the federal bankruptcy exemption scheme, so we must

examine and apply Arizona law. Ford v. Konnoff (In re Konnoff),

356 B.R. 201, 204 (9th Cir. BAP 2006). 

Section 33-1101 of the Arizona Revised Statutes provides a

homestead exemption. It states, in relevant part: 

A. Any person the age of eighteen or over, married or

single, who resides within the state may hold as a

homestead exempt from attachment, execution and forced

sale, not exceeding one hundred fifty thousand dollars

in value, any one of the following:

1. The person’s interest in real property in one

compact body upon which exists a dwelling house in

which the person resides.

. . . 

C. The homestead exemption, not exceeding the value

provided for in subsection A, automatically attaches to

the person’s interest in identifiable cash proceeds

from the voluntary or involuntary sale of the property. 

The homestead exemption in identifiable cash proceeds

continues for eighteen months after the date of the

sale of the property or until the person establishes a

new homestead with the proceeds, whichever period is

shorter. Only one homestead exemption at a time may be

held by a person under this section.

Ariz. Rev. Stat. § 33-1101.

The exemption statute is liberally construed and does not

necessarily require physical presence on a day-to-day basis. 

Garcia v. Garcia (In re Garcia), 168 B.R. 403, 408 (D. Ariz.

1994). A “temporary absence” will not defeat a homestead claim,

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but the debtor must intend that the home be her residence. Id.

Once a homestead has been established, section 33-1104

provides for abandonment under certain circumstances:

A. A homestead may be abandoned by any of the

following:

1. A declaration of abandonment or waiver.

2. A transfer of the homestead property by deed of

conveyance or contract for conveyance.

3. A permanent removal of the claimant from the

residence or the state. A claimant may remove

from the homestead for up to two years without an

abandonment or a waiver of the exemption.

Ariz. Rev. Stat. § 33-1104.

We discussed the application of these two statutes in

Calderon v. Lang (In re Calderon), 507 B.R. 724 (9th Cir. BAP

2014), which presented a similar factual situation. In that

case, the debtor filed for chapter 7 bankruptcy and claimed his

former residence as exempt. At the time the debtor filed for

bankruptcy, he had lived away from the property for a little more

than a year and had rented the property to third-party tenants

who had exercised their option to extend the lease through a

second year. Id. at 726.

The trustee objected to the homestead exemption, arguing

that the debtor had abandoned the property. However, the debtor

claimed that he had moved out only temporarily to reduce his

housing expenses and intended to return to the residence. Id. at

727.

The court held an evidentiary hearing and sustained the

trustee’s objection. The trustee’s evidence tended to show that

the debtor owned the residence but was not living there and had

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rented out the residence. The trustee conceded that the debtor

had expressed a generalized intent “to move back into [the

residence] at some point.” Id. at 728. The court held that the

totality of the evidence demonstrated that the debtor was not

living at the residence “for the better part of the last two

years” and, after moving out, he had been using the residence as

an income-producing property. Id. The court stated that the

debtor’s “vague” intent to return to the residence was not

sufficient to sustain the homestead exemption under

section 33-1101(A). Id.

On appeal, we remanded to the bankruptcy court on the issue

of the debtor’s intent. We stated that the appeal hinged on

section 33-1104(A)(3) and the debtor’s intent to “permanently”

remove from the property: 

So stated, the usual meaning of the word

“permanent” introduces an element of intent into the

statutory inquiry. This focus on intent for purposes

of determining whether debtors have permanently

abandoned their homestead is consistent with the

consideration of intent for purposes of determining

debtors’ “residence” under Arizona’s homestead

exemption laws.

Id. at 731 (citations omitted).

Construing the two sentences of section 33-1104(A)(3), we

summarized the meaning of that section: 

On the petition date, if the debtor has been living

elsewhere for less than two years, only evidence of a

clear intent of permanent removal will suffice to

permit the bankruptcy court to find that the debtor has

abandoned his homestead exemption under Arizona law. 

On the other hand, on the petition date, if the debtor

has been living elsewhere for two years or more, then

the debtor is presumed to intend for the removal to be

permanent, and only evidence of a clear intent for the

removal to be temporary will overcome that presumption.

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Id. at 732 (emphasis added). We held that the bankruptcy court

had misapplied the law by requiring the debtor, who had been

removed for less than two years, to prove that he had more than a

“vague intent” to return to the residence. Id. at 733. Because

the record as to the debtor’s intent was poorly developed, we

remanded for the bankruptcy court to determine whether to reopen

the evidence or to apply the correct law to the established

facts.

2. The bankruptcy court properly evaluated the evidence to

discern Ms. Duncan’s intent at the time she filed the

bankruptcy petition.

In the present case, the bankruptcy court followed the

correct legal standard that we outlined in Calderon. There is no

dispute, and the court found, that Ms. Duncan had established her

homestead in the Kingbird Drive Property by virtue of having

resided there from 2006 through January 2014. The question

becomes whether she intended to permanently remove from the

property and therefore abandoned her homestead interest.

As we stated in Calderon, “[o]n the petition date, if the

debtor has been living elsewhere for less than two years, only

evidence of a clear intent of permanent removal will suffice to

permit the bankruptcy court to find that the debtor has abandoned

his homestead exemption under Arizona law.” Id. at 732 (emphases

added).3 There is no dispute that Ms. Duncan had removed from

3 Ms. Duncan argued to the bankruptcy court that Calderon is

on all fours with her case. While Calderon is instructive for

laying out the statutory framework of a debtor’s abandonment of a

homestead and its underlying facts are strikingly similar, its

procedural posture is distinguishable from the present case. In

(continued...)

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the Kingbird Drive Property in January 2014 and filed her

petition on November 23, 2015 – less than two years after she

moved out of the property. Therefore, the Trustee had the burden

of proving that Ms. Duncan clearly intended on the petition date

to abandon the homestead permanently.

The bankruptcy court received testimony from Ms. Duncan

regarding her intent as to the disposition of the Kingbird Drive

Property. It found that, as of the petition date, Ms. Duncan had

a clear intent of permanent removal from the property because she

could not afford to keep the property and intended to “get rid of

it.” She only changed her intention to sell the property when

she was able to modify her mortgage loan in March 2016. We must

defer to the bankruptcy court’s findings as to a debtor’s intent

unless we are left with a firm conviction that the bankruptcy

court committed a mistake. All of these findings are supported

by the record, and the bankruptcy court did not clearly err. 

Ms. Duncan argues that the bankruptcy court erred in relying

on her testimony at the meeting of creditors to determine her

intent a month earlier, when she filed her bankruptcy petition. 

She is correct that exemptions are determined as of the petition

date. See Wolfe v. Jacobson (In re Jacobson), 676 F.3d 1193,

3(...continued)

that case, the bankruptcy court received only the slightest

evidence regarding the debtor’s intent: the trustee’s hearsay

testimony. Thus, we remanded for the court to decide whether to

take further evidence. Conversely, in the present case, the

evidentiary hearing focused almost exclusively on Ms. Duncan’s

intent to remove from the Kingbird Drive Property, and Ms. Duncan

herself testified. The bankruptcy court had ample evidence with

which to make a finding of Ms. Duncan’s intent.

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1199 (9th Cir. 2012) (“Under the so-called ‘snapshot’ rule,

bankruptcy exemptions are fixed at the time of the bankruptcy

petition.”). But the bankruptcy court properly concluded that

Ms. Duncan’s testimony at the meeting of creditors was the best

evidence of her intention at the time she filed the petition a

month earlier.4 Ms. Duncan does not offer any authority on

appeal that the bankruptcy court could not rely on her testimony

at the meeting of creditors. Rather, she asks us to look at

favorable facts in the years leading up to the petition and

following the March 2016 loan modification and to ignore all

evidence to the contrary. We decline to take such a selective

view of the evidence.

Ms. Duncan further contends that the bankruptcy court erred

in relying on her treatment of the Kingbird Drive Property as a

rental property as evidence of her intent. But the court did not

consider this factor in isolation, nor did it conclude that a

rental property always loses the homestead exemption; the court

merely found that she treated the Kingbird Drive Property as a

rental property and the Market Street Rental as her primary

residence. 

Ms. Duncan argues that the bankruptcy court misunderstood

the effect of the March 2016 loan modification, which allegedly

“resolved the issue of the intended sale raised at the 341

meeting.” But the bankruptcy court found that the March 2016

4 Ms. Duncan does not dispute her testimony at the meeting

of creditors, but implies that she would have testified that her

intent a month earlier was different. But the Trustee allowed

her to clarify her intent, and she did not offer a different

answer or explanation at the evidentiary hearing.

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loan modification only kept her monthly payments at their current

amount (rather than increasing with the variable interest rate),

even though she had testified that she could still not afford the

payments at the time. The court also found that she admitted

that she changed her mind about selling the Kingbird Drive

Property only after the March 2016 loan modification, indicating

that she had previously (including on the petition date) intended

to abandon the property. Although it may have become financially

possible for Ms. Duncan to retain the Kingbird Drive Property in

March 2016, the bankruptcy court was correct to focus on her

intent on the petition date.

She also argues that the bankruptcy court erred by not

addressing her homestead exemption in the proceeds from the sale

of the Kingbird Drive Property under section 33-1101(C). But the

only relevant question is whether Ms. Duncan intended to return

to her property and keep it as a homestead. The bankruptcy court

found that, as of the petition date, she did not have such

intent, so she had abandoned the homestead exemption and she

would not be able to thereafter claim the exemption on the sale

proceeds in any event.

She contends that the court did not consider all of the

evidence of her intent to keep the Kingbird Drive Property. But

the bankruptcy court was not required to explicitly address the

significance of every single piece of evidence.5

5 For example, Ms. Duncan argues that her intent to return

to the Kingbird Drive Property is evidenced by her efforts to

refinance the property; by her defense of her interest in the

property against her ex-husband; and by her desire to keep her

(continued...)

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B. The Trustee’s Objection was timely.

Ms. Duncan asserts that the Trustee’s Objection was both

tardy and premature. She argues that the Trustee did not file

his Objection within thirty days of the December 29 meeting of

creditors or obtain an extension of time before filing; in this

respect, his February 5 Objection was untimely. The court ruled

on the motion to extend time on February 25, but the Trustee had

already filed his Objection; in this respect, she argues that his

Objection was premature. 

This contention is frivolous. Ms. Duncan stipulated before

the bankruptcy court that the “[t]he trustee filed a timely

objection to the exemption claimed by the Debtor in the Kingbird

property . . . .” She cannot now argue on appeal that the

Objection was untimely. 

Ms. Duncan admits that she did not raise this argument

below. The court so noted the lack of an objection when ruling

on the request for an extension. Nor did Ms. Duncan take issue

with the Trustee’s timeliness in her response to the Objection. 

We will not consider issues raised for the first time on appeal. 

See Yamada v. Nobel Biocare Holding AG, 825 F.3d 536, 543 (9th

Cir. 2016). Even if she had not stipulated, she has waived the

timeliness argument.

Even if we were to consider this issue, it is meritless. 

The bankruptcy court extended the deadline to file an objection

5(...continued)

children in the same school district. The bankruptcy court’s

weighing of this evidence along with all of the other evidence

was not clearly erroneous.

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to the homestead exemption to March 15, 2016. The Trustee had

filed the Objection on February 5, which was well before the

court’s deadline. She provides no authority or analysis to

support her contention that the court needed to specify that its

order retroactively covered the Objection. It was thus timely. 

Further, she argues that the court’s order “did not provide

for an approval . . . for cause.” But the Trustee explained that

an extension was necessary because he was working toward reaching

a settlement with Ms. Duncan, and the court specifically found

“[g]ood cause appearing.” 

Accordingly, the Trustee’s Objection was neither tardy nor

premature, and Ms. Duncan’s argument to the contrary is

frivolous.

CONCLUSION

The bankruptcy court did not err in sustaining the Trustee’s

Objection to Ms. Duncan’s homestead exemption. Accordingly, we

AFFIRM.

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