Opinion
Case No. 8:16-bk-04379-RCT
09-30-2016
In re CHRISTOPHER P. DONOVAN, Debtor.
Chapter 13 ORDER GRANTING DEBTOR'S MOTION FOR SUMMARY JUDGMENT AND DENYING TAX COLLECTOR'S MOTION FOR RELIEF FROM STAY
THIS CASE came before the Court on Debtor's Motion for Summary Judgment (Doc. No. 35) on the Motion for Relief from Stay filed by Ken Burton, Jr., Manatee County Tax Collector (the "Stay Motion") (Doc. No. 15), and Ken Burton Jr., Manatee County Tax Collector's ("Tax Collector") amended response to the Debtor's motion. (Doc. No. 43). The Court conducted a hearing on Debtor's Motion for Summary Judgement on September 19, 2016, after which the parties were provided the opportunity to submit case law or further brief of the issues. The Tax Collector filed a memorandum of law in support of his position (Doc. No. 47). Debtor declined the opportunity.
The Tax Collector amended his initial response as per a conditional order striking the same. (Doc. No. 42).
In the Stay Motion, Tax Collector asks that the automatic stay be lifted on grounds that Debtor does not hold record title to and otherwise holds no equitable interest in the Property. Alternatively, Tax Collector asserts that he is not adequately protected. Debtor opposes the Stay Motion, asserting an equitable interest in the Property as heir to the record title owner. (Doc. Nos. 27, 35). Debtor moves for summary judgment on the issue of his interest in the Property and supports his motion with his sworn affidavit. (Doc. No. 35, Ex. A).
For the reasons below, the Court grants Debtor's Motion for Summary Judgment and denies Tax Collector's Stay Motion. The trial on the contested matter, scheduled for October 17, 2016, is cancelled.
STANDARD OF REVIEW
Summary judgment is appropriate where the movant shows there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Bankr. P. 7056 (incorporating Fed. R. Civ. P. 56); Taylor v. Grant (In re Taylor), 196 B.R. 197, 199-200 (Bankr. M.D. Fla. 1996). In determining whether factual disputes raise genuine issues for trial, courts must view the facts in a light most favorable to the nonmoving party. Macks v. United States (In re Macks), 167 B.R. 254, 256 (Bankr. M.D. Fla. 1994). If the moving party meets its burden, the "other party may not simply rest upon mere allegations or denials of the pleadings." Id. Instead, the nonmoving party must affirmatively show "the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial." Id.; see In re Taylor, 196 B.R. at 201.
DISCUSSION
Facts
On May 20, 2016, Debtor filed his Chapter 13 petition (Doc. No. 1) and Chapter 13 plan (Doc. No. 2). Tax Collector has filed two proofs of claim in Debtor's case. (Claim Nos. 1 and 2). Debtor's Plan provides for periodic payments of unpaid ad valorem taxes and non-ad valorem assessments owing on certain real property and on a mobile home situated at 205 52nd Avenue West, Bradenton, Manatee County, Florida (the "Property"). Debtor's sworn schedules state that Debtor lives at and has an "equitable interest" in the Property. (Doc. No. 1).
Debtor has lived at the Property for over ten years. He moved into the Property shortly after his grandmother, Janet Taylor, purchased it in 2005. (Doc. No. 35, Debtor's Aff. ¶¶ 3, 4). It is undisputed that Janet Taylor is the record owner of the Property. Per the Debtor, Janet Taylor died unmarried in 2008, survived by Debtor's mother Cynthia Jean Slagle and Debtor's uncle, William Paul Lilly. Id. at ¶ 5. After Janet Taylor died, Debtor's mother moved into the Property with Debtor. Id. at ¶ 4. Debtor's mother died unmarried in September 2015, survived by Debtor and his brother Victor Mason Poston. Id. at ¶ 4, 6.
Debtor has no knowledge of any testamentary wills executed by his grandmother or mother. Id. at ¶ 7. To Debtor's knowledge, neither estate has been probated. Id. Indeed, Debtor himself would probate their estates if he had the money to do so. Id. at ¶ 9. Debtor claims an equitable interest in the Property as an heir to Cynthia Jean Slagle and Janet Taylor.
The Tax Collector offered no affidavit or other evidence contradicting these facts.
Analysis
Whether a debtor has an interest in property sufficient to bring it within the ambit of property of the estate is determined by state or other applicable non-bankruptcy law. Butner v. United States, 440 U.S. 48, 55 (1979). Florida law provides that the "decedent's death is the event that vests the heirs' right to the decedent's intestate property." Fla. Stat. § 732.101(2); see Slater v. Slater (In re Estate of Slater), 437 So. 2d 1110, 1112 (Fla. Dist. Ct. App. 1983) ("[T]itle to real property owned by an intestate decedent descends at death directly to the heirs subject to the administration of the estate.").
Debtor has met his burden of establishing that there is no genuine dispute as to the facts material to the resolution of this matter. Debtor's grandmother was the record owner of the Property. She died unmarried and was survived by Debtor's mother and uncle. Debtor's mother also died unmarried and was survived by Debtor and his brother. Thus, under Florida law, Debtor is heir to his mother, who was heir to Debtor's grandmother, who is still the record owner of the Property. See, e.g., Balboni v. LaRocque, 991 So. 2d 993, 994 (Fla. Dist. Ct. App. 2008).
As an heir, Debtor has a vested interest in the Property under Florida law. Indeed, if the Tax Collector attempted to foreclose against the Property, Debtor would be a necessary party to such suit. Jones v. Fed. Farm Mortgage Corp., 182 So. 226, 228 (Fla. 1938).
In his opposition to Debtor's Motion for Summary Judgment, the Tax Collector has done no more than "rest upon mere allegations or denials of the pleadings." In re Macks, 167 B.R. at 256. Tax Collector challenges Debtor's personal knowledge of certain facts averred in his affidavit, but offers no evidence to counter Debtor's understanding that his grandmother and mother both died unmarried and intestate. Accordingly, the Tax Collector has failed to meet his burden in opposing the Debtor's Motion for Summary Judgment.
Statements by family members regarding family history are generally recognized as credible, even absent a definite showing of personal knowledge. Cf. 2 McCormick on Evidence § 322 (7th ed.); 1 Charles W. Erhardt, Erhardt's Florida Evidence § 804.5 (West's Fla. Prac. Series 2016 ed.). --------
Debtor's equitable interest in the Property constitutes property of the estate and is therefore protected by the automatic stay. Debtor has lived on the Property for almost ten years; and he is attempting to make full payment of all the Property's taxes and assessments through his Chapter 13 plan. Therefore, Debtor's Chapter 13 plan, and the payments contemplated therein, constitute adequate protection of the Tax Collector's interest.
Accordingly, it is ORDERED:
1. The Debtor's Motion for Summary Judgment (Doc. No. 35) is GRANTED.
2. Tax Collector's Stay Motion (Doc. No. 15) is DENIED.
3. The trial scheduled for October 17, 2016, on the Stay Motion is cancelled.
ORDERED. Dated: September 30, 2016
/s/_________
Roberta A. Colton
United States Bankruptcy Judge Attorney Christopher Hittel is directed to serve a copy of this order on interested parties and shall file a certificate of service within three days of entry of this order.