In re Kasden

Full title: In re: Kenneth L. Kasden, Debtor. Steiner and Saffer, Plaintiff/Appellee…

Court: United States Court of Appeals, Eighth Circuit

Date published: Jun 4, 1996

84 F.3d 1104 (8th Cir. 1996)

Opinion

No. 95-3078

Submitted May 16, 1996

Filed June 4, 1996

Appeal from the United States District Court for the District of Minnesota

Counsel who represented the appellant was Thomas G. Wallrich of Minneapolis, MN.

Counsel who represented the appellee were Daniel J. Boivin and Konstandinos Nicklow of Minnetonka, MN.

Before MURPHY and ROSS, Circuit Judges, and VAN SICKLE, District Judge.^_

_ The HONORABLE BRUCE M. VAN SICKLE, United States District Judge for the District of North Dakota, sitting by designation.

PER CURIAM.

Kenneth Kasden filed for protection under Chapter 7 of the Bankruptcy Code in August 1994, and identified property located in Edina, Minnesota as exempt homestead property. Steiner and Saffer, which is a judgment creditor of Kasden, filed an objection to his claimed homestead exemption,¹ arguing that Kasden had lost his homestead exemption to the property when he ceased to occupy it for more than six months without filing notice as required by Minnesota Statute 510.07. Kasden has not resided on the property since it was damaged extensively by fire in November 1993 and has not filed a homestead notice with the county recorder.

1 The bankruptcy trustee also filed an objection to the claimed exemption, but is not a party to this appeal.

The bankruptcy court denied the objection of Steiner and Saffer on two grounds: that a person forced from homestead property due to casualty has not ceased to occupy it within the meaning of the statute, and that Kasden physically occupied the property, albeit not as a residence. The district court² reversed and remanded on the basis that Minnesota law does not recognize a casualty exception to statutory abandonment, Joy v. Cooperative Oil Ass'n, 360 N.W.2d 363, 366 (Minn.Ct.App. 1984) (en banc), review denied (Minn. March 6, 1985) (owner absent from property more than six months due to destruction of premises by fire lost homestead exemption when he failed to file notice), and requires that a property owner occupy the property as a residence to maintain a homestead exemption.

2 The Honorable Donald D. Alsop, United States District Judge the District of Minnesota.

After careful review of the record before us and the arguments raised, we conclude the district court correctly resolved the issues. The order is affirmed. See 8th Cir. R. 47B.