In re Pashenee

OPINION RE CLAIM OF EXEMPTION

INTRODUCTION

Before the court is an objection by the chapter 7 trustee to an exemption claimed by the debtor. The debtor claimed an exemption for an asset described in Schedule C as a “retirement — IRA Fidelity # 6486” in the amount of $380,348. The debtor claimed this IRA as exempt under California Code of Civil Procedure § 703.140(b)(10)(E), which exempts a right to a payment under a stock bonus, pension, profit-sharing, annuity, or similar plan or contract on account of illness, disability, *835 death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor. There are two critical factual questions involved in determining if the exemption applies in this case: (1) the source of the right to the payment claimed as exempt and (2) the extent to which the payment claimed as exempt is reasonably necessary to support the debtor and any dependent of the debtor.

The trustee’s objection to the debtor’s claim of exemption raises a legal question which the court must first resolve before it can make factual determinations as to whether the elements of the California exemption statute are…