COHEN

v.

KELLOGG

Aaron R. Cohen, Chapter 7 Trustee (Doc. 13; Reply Brief).3 Accordingly, the appeal is ripe for review.

I. Standard of Review

This Court has jurisdiction to hear an appeal from a final judgment entered by the United States Bankruptcy Court. See 28 U.S.C. § 158(a). In functioning as an appellate court, the Court reviews de novo the legal conclusions of a bankruptcy court but must accept a bankruptcy court’s factual findings unless they are clearly erroneous. See In re JLJ Inc., 988 F. 2d 1112,

1116 (11th Cir. 1993). “A finding [of fact] is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). Bankruptcy Rule

8013 further instructs district courts to give due regard “to the opportunity of the bankruptcy court to judge the credibility of the witnesses.” This is because “only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.” Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985) (discussing clearly erroneous standard under the Federal Rules of Civil Procedure). In addition, on appellate review the Court may not make independent factual findings. See In re JLJ, Inc., 988 F. 2d at 1116; In re Englander, 95 F. 3d 1028,

1030 (11th Cir. 1996). Accordingly, “[i]f the bankruptcy court is silent or ambiguous as to an outcome determinative factual question, the case must be remanded to the bankruptcy court for the necessary factual findings.” In re JLJ, Inc., 988 F. 2d at 1116.

II. Proceedings Before the Bankruptcy Court

On August 26, 2019, Kellogg filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code. See Bankruptcy Docket Sheet (Doc. 4-8; Bankruptcy Docket) at 12; see also Voluntary Petition for Individuals Filing for

Bankruptcy (Doc. 5-21; Petition) at 2. In his bankruptcy petition, Kellogg claimed a number of his personal assets as exempt, including, in relevant part, an exemption in his Thor Motor Coach 27’ M-25C E450 Ford V10 (Motor Home). See Petition at 17–18. On October 28, 2019, the Trustee filed objections to

Kellogg’s claimed exemptions, in which he objected to, amongst other items, Kellogg’s claimed exemption in the Motor Home. See Bankruptcy Docket at 11; see also Trustee’s Objections to Debtor’s Claims of Exemptions (Doc. 4-9; Objections). On the same date, the Trustee filed a motion seeking turnover of various property in Kellogg’s estate. See Trustee’s Motion for Turnover of Property of the Estate (Doc. 4-10; Turnover Motion). Following a joint trial on the Trustee’s Objections and Turnover Motion, the bankruptcy court sustained the Trustee’s objections and granted the Turnover Motion as to all matters except Kellogg’s claimed exemption in the Motor Home. See Memorandum Decision at 1; see also Partial Order Sustaining Trustee’s Objection to Debtor’s Claims of Exemptions in Part (Doc. 4-24), dated March⁴, 2020; Partial Order Granting Trustee’s Motion for Turnover of Property of the Estate in Part (Doc. 4-25), dated March⁴, 2020. In doing so, the bankruptcy court took under advisement the question forming the basis of this appeal—whether the Motor Home qualifies as Kellogg’s exempt homestead under Florida law. See Memorandum Decision at 1, 4 (citing 11 U.S.C. § 522(b)(2) and Florida Statutes section 222.20).

The bankruptcy court addressed this remaining issue at length in the subsequent Memorandum Decision. After thoroughly discussing the evidence proffered by the parties,⁴ the bankruptcy court applied the six-factor test outlined in In re Yettaw, 316 B.R. 560, 562–63 (Bankr. M.D. Fla. 2004), and ultimately concluded that the Motor Home qualifies as Kellogg’s “dwelling house” within the meaning of Florida Statutes section 222.05. See Memorandum Decision at 2–6. Thus, the bankruptcy court determined that Kellogg’s claimed homestead exemption in the Motor Home was valid, and accordingly overruled the Trustee’s remaining objection and denied the Trustee’s Turnover Motion as to the Motor Home. Id. at 6, 10. After filing an unsuccessful motion for reconsideration of the bankruptcy court’s Memorandum Decision, see Motion for Reconsideration of Memorandum Decision and Order

Property of the Estate (Doc. 11; Motion for Reconsideration) at 26–37; see also Order Denying Reconsideration, the Trustee appealed to this Court.⁵

III. Discussion

Ultimately, the question on appeal is whether the bankruptcy court correctly concluded, under the specific facts of this case, that the Motor Home qualifies as Kellogg’s “dwelling house” such that it is entitled to homestead protection under Florida law. The parties do not contest the relevant facts, rather, the Trustee maintains that the facts and circumstances surrounding

Kellogg’s ownership and use of the Motor Home preclude a finding that the Motor Home qualifies for homestead protection under Florida law. See generally Initial Brief; Reply Brief.

790 So. 2d 1018, 1020–21 (Fla. 2001)); see also In re Schumacher, 400 B.R. at 835 (quoting Quigley v. Kennedy & Ely Ins., Inc., 207 So. 2d 431, 432 (Fla.1968)) (“The Florida Courts have consistently and emphatically held the homestead exemption is to be construed liberally. It is ‘well settled’ in the Florida State

Courts the homestead exemption ‘should be liberally construed in the interest of protecting the family home.’”); In re Bubnak, 176 B.R. 601, 602–03 (Bankr. M.D. Fla. 1994) (observing the liberal construction afforded homestead status and determining that a motor home qualified for Florida’s homestead exemption); In re Mangano, 158 B.R. 532, 534–35 (Bankr. S.D. Fla. 1993) (same). Indeed, the Florida Supreme Court has recognized [a]s a matter of public policy, the purpose of the homestead exemption is to promote the stability and welfare of the state by securing to the householder a home, so that the homeowner and his or her heirs may live beyond the reach of financial misfortune and the demands of creditors who have given credit under such law. Public Health Trust v. Lopez, 531 So. 2d 946, 948 (Fla. 1988). Moreover, a debtor’s homestead exemption claim is presumptively valid, In re Schumacher, 400 B.R. at 835 (citing Colwell v. Royal Int'l Trading Corp., 196 F. 3d 1225, 1226 (11th Cir. 1999)), and the party objecting to a claimed exemption bears the burden of “‘mak[ing] a strong showing’ the debtor is not entitled to the claimed exemption,” id. (quoting In re Franzese, 383 B.R. 197, 202–03 (Bankr. M.D. Fla. 2008)). When determining whether an unconventional or nontraditional abode,

such as a motor home, qualifies for Florida’s homestead exemption, courts look to the six-factor test articulated in In re Yettaw, 316 B.R. at 562–63. These factors include—but are not limited to—the following:¹) the debtor’s intent to make the nontraditional abode his homestead; 2) whether the debtor has no other residence; 3) whether the evidence establishes a continuous habitation;⁴) whether the debtor maintains at least a possessory right associated with the land establishing a physical presence;⁵) whether the nontraditional abode has been physically maintained to allow long-term habitation versus mobility; and

6) whether the physical configuration of the abode permits habitation, otherwise the physical characteristics are immaterial. Id.; see also In re Schumacher, 400 B.R. at 835. Although no single factor is determinative, as the bankruptcy court recognized, the intent of the debtor bears the most weight in the analysis. See

Memorandum Decision at 5, n.21 (citing In re Schumacher, 400 B.R. at 835; and In re Mead, 255 B.R. 80, 84–85 (Bankr. S.D. Fla. 2000)). Here, the Court is satisfied that application of the In re Yettaw test to the facts and circumstances related to Kellogg’s Motor Home qualify it for homestead protection under Florida law. Upon a de novo review of the bankruptcy court’s legal conclusions, and review of the bankruptcy court’s factual determinations for clear error, the undersigned concludes that the bankruptcy court correctly found that the Motor Home in this case is Kellogg’s

“dwelling house,” and therefore, his exempt homestead. Indeed, upon consideration of the evidence introduced regarding the Motor Home, the bankruptcy court concluded that Kellogg purchased the Motor Home for use as his residence and has continuously used it in that manner. See Memorandum

Decision at 6. Moreover, the bankruptcy court determined that the Motor Home’s physical characteristics support habitation, Kellogg has no other residence and has maintained a possessory right to a location at Sunny Sands motor home resort,⁶ and—despite pre-petition travels—the Motor Home has

Thus, bearing in mind the liberal construction afforded homestead exemption claims, application of the in re Yettaw factors here qualify the Motor Home as Kellogg’s “dwelling house” within the meaning of Florida Statutes section 222.05. See Memorandum Decision at 6; see also In re Mead, 255 B.R. at 84–85 (concluding that rather than focusing on the mobility of a nontraditional abode, “[a] better test to determine homestead exemption is one based on function and use of the dwelling structure, rather than its size, design, utility hookups, or ability to be moved”); In re Mangano, 158, B.R. at 534 (“A liberal construction

[of homestead exemption claims] mandates that the Court focus more on the use of the [motor home] than its design or size.”). Therefore, based on the wellreasoned Memorandum Decision and Order Denying Reconsideration, the bankruptcy court’s findings are due to be affirmed.

Accordingly, it is hereby ORDERED: 1. The United States Bankruptcy Court’s Memorandum Decision and Order Overuling [sic], in Part, Chapter 7 Trustee’s Objection to

Debtor’s Claim of Exemption, and Denying, in Part, Chapter 7 Trustee’s Motion for Turnover of Property of the Estate (Doc. 4-4), entered in Bankruptcy Case No. 3:19-bk-3254-JAF, is AFFIRMED. 2. The United States Bankruptcy Court’s Order Denying Motion for

Reconsideration of Memorandum Decision and Order Over[r]uling, in Part, Chapter 7 Trustee’s Objection to Debtor’s Claim of Exemption, and Denying, in Part, Chapter 7 Trustee’s Motion for Turnover of Property of the Estate (Doc. 4-5), entered in Bankruptcy Case No. 3:19-bk-3254-JAF, is AFFIRMED. 3. The Clerk of the Court is directed to transmit a certified copy of this Order to the Clerk of the bankruptcy court. 4. The Clerk of the Court is further directed to enter judgment consistent with this Order, terminate any pending motions, and close this case. DONE AND ORDERED at Jacksonville, Florida, this 17th day of August, 2021.

MARCIA MORALES HOWARD

United States District Judge

1c27 Copies to: The Hon. Roberta A. Colton, United States Bankruptcy Judge Counsel of Record