Martinson

Martinson v. Michael (In re Michael)

Bad Law
163 F.3d 526·98 Daily Journal DAR 12405·1998 U.S. App. LEXIS 30721·98 Cal. Daily Op. Serv. 8843
United States Court of Appeals for the Ninth CircuitDecember 4, 1998No. 97-35552California1,273 words

Opinion

Lead Opinion

Boochever, J.

Jereld and Shirley Michael amended their voluntary petition for bankruptcy relief under Chapter 7 to claim a homestead exemption. Upon an earlier remand from this court, the Bankruptcy Appellate Panel reversed the Bankruptcy Court and held that the Michaels could amend their schedule to claim the exemption. We affirm.

*528 FACTS

In 1979, Jereld J. and Shirley K. Michael, husband and wife, purchased real property in Yellowstone County, Montana. The Mi-chaels entered into a mortgage as security for a loan. The Michaels have lived on the property and treated it as their home from the date of purchase.

In January 1991, the Michaels filed a voluntary petition for bankruptcy relief under Chapter 7, 11 U.S.C. § 101 et seq. They failed, however, to record a declaration of homestead as required by Montana law. Mont.Code Ann. §§ 70-32-105, 106, 107. They subsequently filed the schedules of property and exhibits required by the Bankruptcy Code, but omitted to set forth their intent to claim the real property as exempt under the homestead exemption on them bankruptcy Schedule B-4. In March 1991, when they realized their error, the Michaels advised the trustee that they intended to claim…

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