Preview
FILED: NASSAU COUNTY CLERK 09/08/2023 05:52 PM INDEX NO. 601610/2015
NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 09/08/2023
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------x
In re:
Case No.: 16-70141-ast
NELSON ROJAS, Chapter 7
Debtor.
----------------------------------------------------------x
ORDER DISALLOWING DEBTOR’S
CLAIM OF HOMESTEAD EXEMPTION
UPON the motion (the “Motion”) of Allan B. Mendelsohn, the chapter 7 trustee (the
“Trustee”) of the estate of Nelson Rojas, the debtor (the “Debtor”), by and through his attorneys,
Law Offices of Avrum J. Rosen, PLLC, seeking the entry of an Order disallowing Debtor’s
claim of a homestead exemption pursuant to NYCPLR § 5206, as to the real property commonly
known as 136 Henry Street, Valley Stream, New York (the “Henry Street Property”); and the
matter having come on for a hearing before the Court on March 22, 2016; and the Trustee having
appeared by Fred S. Kantrow, one of his attorneys; and there being no opposition to the relief
sought by the Trustee in his Motion; or, said opposition having been withdrawn or otherwise
overruled; and the Court, having considered the Motion, the exhibits attached thereto as well as
the arguments of counsel; and after due deliberation having determined that the Debtor is not
entitled to a claim of a homestead exemption as to the Henry Street Property; it is hereby
ORDERED that the Debtor’s claim of a homestead exemption pursuant to NYCPLR §
5206 as to the Henry Street Property is hereby disallowed.
____________________________
Dated: April 27, 2016 Alan S. Trust
Central Islip, New York United States Bankruptcy Judge
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NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 09/08/2023
Law Offices of Avrum J. Rosen, PLLC
Attorneys for Allan B. Mendelsohn, Trustee
38 New Street
Huntington, New York 11743
631 423 8527
Fred S. Kantrow
Scott T. Dillon
UNITED STATES BANKRUPTCY COURT RETURN DATE: 3/22/16
EASTERN DISTRICT OF NEW YORK TIME:9:30 a.m.
----------------------------------------------------------x
In re:
Case No.: 16-70141-ast
NELSON ROJAS, Chapter 7
Debtor.
----------------------------------------------------------x
TRUSTEE’S OBJECTION AND MOTION FOR ENTRY OF
AN ORDER DISALLOWING THE DEBTOR’S CLAIM OF EXEMPTION
TO: THE HON. ALAN S. TRUST
UNIUTED STATES BANKRUPTCY JUDGE
Allan B. Mendelsohn, the trustee (the “Trustee”) of the estate of Nelson Rojas, the debtor
(the “Debtor”), by and through his counsel, Law Offices of Avrum J. Rosen, PLLC, as and for
his objection (the “Objection”) to the Debtor’s claim of a homestead exemption in the amount of
$116,381.00 with respect to the real property commonly known as 136 Henry Street, Valley
Stream, New York (the “Henry Street Property”), and motion for entry of an Order pursuant to
section 522(I) of title 11 of the United States Code (the “Bankruptcy Code”) and Rule 4003(b) of
the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) and Local Bankruptcy
Rule 1009-1 (the “Local Rules”) disallowing the Debtor’s claim of a homestead exemption with
respect to the Henry Street Property, and states as follows:
PRELIMINARY STATEMENT
1. Trustee objects to Debtor’s claim of a homestead exemption, as listed on
Schedule C of the Debtor’s voluntary petition, in the amount of $116,381.00 with respect to the
Henry Street Property, and moves for the entry of an Order disallowing the Debtor’s claim of a
Case 8-17-71674-ast Doc 49-1 Filed 10/18/22 Entered 10/18/22 10:15:07
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FILED: NASSAU COUNTY CLERK 09/08/2023 05:52 PM
NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 09/08/2023
homestead exemption. For the reasons set forth herein, the Debtor’s claim of a homestead
exemption with respect to the Henry Street Property must be denied.
BACKGROUND
2. The Debtor filed a voluntary petition for relief from his creditors pursuant to
chapter 7 of the Bankruptcy Code on January 13, 2016 (the “Petition Date”).
3. Allan B. Mendelsohn was appointed Interim Trustee and thereafter duly qualified
as the permanent Trustee.
4. The Trustee conducted the initial section 341 meeting of creditors on February 10,
2016. The Debtor appeared and was examined under oath.
5. According to the Debtor’s petition and schedules, which are signed under penalty
of perjury and constitute the sworn statements of the Debtor, the Debtor resides in the property
commonly known as 30 Carroll Avenue, Valley Stream, New York (the “Carroll Avenue
Property”).1 However, despite testifying that he resides at the Carroll Avenue Property, the
Debtor claimed a homestead exemption pursuant to NYCPRL § 5206 as to the Henry Street
Property.
DOCUMENTS PROVIDED BY DEBTOR
6. Prior to filing this motion, the Trustee undertook an investigation of certain
documents provided by the Debtor in an attempt to determine what address constitutes the
Debtor’s residence for the purpose of claiming a homestead exemption.
7, As a starting point, the Debtor’s petition and schedules, which are annexed hereto
as Exhibit “A”, provide a basis for this Court to conclude that the Debtor’s residence, at least for
1
Notably, Rule 1008 of the Bankruptcy Rules requires that the petition, lists, schedules and any amendment to these
documents be sworn to or that the debtor execute a declaration that the documents are signed under the penalty of
perjury.
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the purposes of claiming a valid homestead exemption, must be the Carroll Avenue Property.
For example, as to question 5 on the Debtor’s voluntary petition and schedules, entitled “Where
you live”, the Debtor indicated the Carroll Avenue Property. Moreover, the Debtor indicated
that his two automobiles (Mitsubishi Eclipse and Honda Pilot) are both located at the Carroll
Avenue Property address. Moreover, as to various personal items, the Debtor likewise indicated
that they were located at the Carroll Avenue Property address as well.
8. Beyond that, Trustee is in possession of copies of the Debtor’s payroll checks
annexed hereto as Exhibit “B”. These checks, issued by Shoe Service Plus, Inc., believed to be
the Debtor’s employer, are addressed to the Debtor at the Carroll Avenue Address. The Debtor’s
tax returns for calendar 2014 and 2013, redacted copies of which are annexed hereto as Exhibit
“C”, also indicate the Debtor’s address to be the Carroll Avenue Property address. The Debtor’s
bank statements, redacted copies of which are annexed hereto as Exhibit “D”, provide further
documentary evidence that the Debtor resides at the Carroll Avenue Property.
9. These documents all support a conclusion that the Debtor’s residence, and the
only property to which the Debtor is entitled to claim a homestead exemption pursuant to
NYCPLR is the Carroll Avenue Property.
BASIS FOR RELIEF
10. Simply put, the Debtor is not entitled to claim a homestead exemption with
respect to the Henry Street Property. Section 5206 of New York’s Civil Practice Laws & Rules,
provides that a homestead exemption may be claimed for property “owned and occupied as a
principal residence. . .” See, N.Y.C.P.L.R. Section 5206(a). The statute allows an exemption to
any owner who resides on the property on the date of the bankruptcy filing. In re Martiny, 378
B.R. 52, 53 (Bankr. W.D.N.Y. 2007). A debtor could not claim a homestead exemption pursuant
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to NYCPL § 5206 when the trustee demonstrated that the debtor did not occupy the premises at
the time that the exemption was claimed. In re Bace, 364 B.R. 166 (Bankr. W.D.N.Y. 2007).
11. A homeowner may have only one principal residence. In re Miller, 203 B.R. 65,
68 (Bankr. N.D.N.Y. 1989). For purposes of establishing that the residence constitutes a
principal residence in connection with the claim of a homestead exemption, there must be (1)
“actual physical occupancy of the residence on a regular basis” meaning that the residence is
“occupied by the debtor on a more regular basis than any other residence”; and (2) “intent to
reside there permanently.” In re Scott, 233 B.R. 32, 40 (Bankr. N.D.N.Y. 1998). See also, In re
Moulterie, 398 B.R. 501, 505 (Bankr. E.D.N.Y. 2008),
12. According to the Debtor’s petition, the Debtor resides at the Carroll Avenue
Property. As stated inter alia, the numerous documents provided by the Debtor all provide that
his address is the Carroll Avenue Property. Moreover, his personal property is likewise located
at the Carroll Avenue Property. Thus, all of the documents support that his residence, at least for
the purposes of where he “resides” must be the Carroll Avenue Property. Accordingly, the claim
of a homestead exemption as to the Henry Street Property must be disallowed.
CONCLUSION
13. Absent admissible evidence to the contrary, this Court must conclude that the
Debtor resides at the Carroll Avenue Property and thus, the Debtor is not entitled to a claim of a
homestead exemption under the NYCPLR as to the Henry Street Property.
WHEREFORE, the Trustee respectfully requests that this Honorable Court enter an
Order sustaining the Trustee’s objection to the claim of a homestead exemption pursuant to
NYCPLR as to the Henry Street Property, together with such other and further relief that this
Court determines just and proper under the facts and circumstances herein.
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NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 09/08/2023
Dated: Huntington, New York
February 18, 2016
Law Offices of Avrum J. Rosen, PLLC
Attorneys for Allan B. Mendelsohn, Trustee
BY: S/Fred S. Kantrow
Fred S. Kantrow
38 New Street
Huntington, New York 11743
631 423 8527
fskantrow@gmail.com
Preview
FILED: NASSAU COUNTY CLERK 09/08/2023 05:52 PM INDEX NO. 601610/2015 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 09/08/2023 UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------------------------x In re: Case No.: 16-70141-ast NELSON ROJAS, Chapter 7 Debtor. ----------------------------------------------------------x ORDER DISALLOWING DEBTOR’S CLAIM OF HOMESTEAD EXEMPTION UPON the motion (the “Motion”) of Allan B. Mendelsohn, the chapter 7 trustee (the “Trustee”) of the estate of Nelson Rojas, the debtor (the “Debtor”), by and through his attorneys, Law Offices of Avrum J. Rosen, PLLC, seeking the entry of an Order disallowing Debtor’s claim of a homestead exemption pursuant to NYCPLR § 5206, as to the real property commonly known as 136 Henry Street, Valley Stream, New York (the “Henry Street Property”); and the matter having come on for a hearing before the Court on March 22, 2016; and the Trustee having appeared by Fred S. Kantrow, one of his attorneys; and there being no opposition to the relief sought by the Trustee in his Motion; or, said opposition having been withdrawn or otherwise overruled; and the Court, having considered the Motion, the exhibits attached thereto as well as the arguments of counsel; and after due deliberation having determined that the Debtor is not entitled to a claim of a homestead exemption as to the Henry Street Property; it is hereby ORDERED that the Debtor’s claim of a homestead exemption pursuant to NYCPLR § 5206 as to the Henry Street Property is hereby disallowed. ____________________________ Dated: April 27, 2016 Alan S. Trust Central Islip, New York United States Bankruptcy Judge Case 8-17-71674-ast Doc 49-1 Filed 10/18/22 Entered 10/18/22 10:15:07 INDEX NO. 601610/2015 FILED: NASSAU COUNTY CLERK 09/08/2023 05:52 PM NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 09/08/2023 Law Offices of Avrum J. Rosen, PLLC Attorneys for Allan B. Mendelsohn, Trustee 38 New Street Huntington, New York 11743 631 423 8527 Fred S. Kantrow Scott T. Dillon UNITED STATES BANKRUPTCY COURT RETURN DATE: 3/22/16 EASTERN DISTRICT OF NEW YORK TIME:9:30 a.m. ----------------------------------------------------------x In re: Case No.: 16-70141-ast NELSON ROJAS, Chapter 7 Debtor. ----------------------------------------------------------x TRUSTEE’S OBJECTION AND MOTION FOR ENTRY OF AN ORDER DISALLOWING THE DEBTOR’S CLAIM OF EXEMPTION TO: THE HON. ALAN S. TRUST UNIUTED STATES BANKRUPTCY JUDGE Allan B. Mendelsohn, the trustee (the “Trustee”) of the estate of Nelson Rojas, the debtor (the “Debtor”), by and through his counsel, Law Offices of Avrum J. Rosen, PLLC, as and for his objection (the “Objection”) to the Debtor’s claim of a homestead exemption in the amount of $116,381.00 with respect to the real property commonly known as 136 Henry Street, Valley Stream, New York (the “Henry Street Property”), and motion for entry of an Order pursuant to section 522(I) of title 11 of the United States Code (the “Bankruptcy Code”) and Rule 4003(b) of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) and Local Bankruptcy Rule 1009-1 (the “Local Rules”) disallowing the Debtor’s claim of a homestead exemption with respect to the Henry Street Property, and states as follows: PRELIMINARY STATEMENT 1. Trustee objects to Debtor’s claim of a homestead exemption, as listed on Schedule C of the Debtor’s voluntary petition, in the amount of $116,381.00 with respect to the Henry Street Property, and moves for the entry of an Order disallowing the Debtor’s claim of a Case 8-17-71674-ast Doc 49-1 Filed 10/18/22 Entered 10/18/22 10:15:07 INDEX NO. 601610/2015 FILED: NASSAU COUNTY CLERK 09/08/2023 05:52 PM NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 09/08/2023 homestead exemption. For the reasons set forth herein, the Debtor’s claim of a homestead exemption with respect to the Henry Street Property must be denied. BACKGROUND 2. The Debtor filed a voluntary petition for relief from his creditors pursuant to chapter 7 of the Bankruptcy Code on January 13, 2016 (the “Petition Date”). 3. Allan B. Mendelsohn was appointed Interim Trustee and thereafter duly qualified as the permanent Trustee. 4. The Trustee conducted the initial section 341 meeting of creditors on February 10, 2016. The Debtor appeared and was examined under oath. 5. According to the Debtor’s petition and schedules, which are signed under penalty of perjury and constitute the sworn statements of the Debtor, the Debtor resides in the property commonly known as 30 Carroll Avenue, Valley Stream, New York (the “Carroll Avenue Property”).1 However, despite testifying that he resides at the Carroll Avenue Property, the Debtor claimed a homestead exemption pursuant to NYCPRL § 5206 as to the Henry Street Property. DOCUMENTS PROVIDED BY DEBTOR 6. Prior to filing this motion, the Trustee undertook an investigation of certain documents provided by the Debtor in an attempt to determine what address constitutes the Debtor’s residence for the purpose of claiming a homestead exemption. 7, As a starting point, the Debtor’s petition and schedules, which are annexed hereto as Exhibit “A”, provide a basis for this Court to conclude that the Debtor’s residence, at least for 1 Notably, Rule 1008 of the Bankruptcy Rules requires that the petition, lists, schedules and any amendment to these documents be sworn to or that the debtor execute a declaration that the documents are signed under the penalty of perjury. Case 8-17-71674-ast Doc 49-1 Filed 10/18/22 Entered 10/18/22 10:15:07 INDEX NO. 601610/2015 FILED: NASSAU COUNTY CLERK 09/08/2023 05:52 PM NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 09/08/2023 the purposes of claiming a valid homestead exemption, must be the Carroll Avenue Property. For example, as to question 5 on the Debtor’s voluntary petition and schedules, entitled “Where you live”, the Debtor indicated the Carroll Avenue Property. Moreover, the Debtor indicated that his two automobiles (Mitsubishi Eclipse and Honda Pilot) are both located at the Carroll Avenue Property address. Moreover, as to various personal items, the Debtor likewise indicated that they were located at the Carroll Avenue Property address as well. 8. Beyond that, Trustee is in possession of copies of the Debtor’s payroll checks annexed hereto as Exhibit “B”. These checks, issued by Shoe Service Plus, Inc., believed to be the Debtor’s employer, are addressed to the Debtor at the Carroll Avenue Address. The Debtor’s tax returns for calendar 2014 and 2013, redacted copies of which are annexed hereto as Exhibit “C”, also indicate the Debtor’s address to be the Carroll Avenue Property address. The Debtor’s bank statements, redacted copies of which are annexed hereto as Exhibit “D”, provide further documentary evidence that the Debtor resides at the Carroll Avenue Property. 9. These documents all support a conclusion that the Debtor’s residence, and the only property to which the Debtor is entitled to claim a homestead exemption pursuant to NYCPLR is the Carroll Avenue Property. BASIS FOR RELIEF 10. Simply put, the Debtor is not entitled to claim a homestead exemption with respect to the Henry Street Property. Section 5206 of New York’s Civil Practice Laws & Rules, provides that a homestead exemption may be claimed for property “owned and occupied as a principal residence. . .” See, N.Y.C.P.L.R. Section 5206(a). The statute allows an exemption to any owner who resides on the property on the date of the bankruptcy filing. In re Martiny, 378 B.R. 52, 53 (Bankr. W.D.N.Y. 2007). A debtor could not claim a homestead exemption pursuant Case 8-17-71674-ast Doc 49-1 Filed 10/18/22 Entered 10/18/22 10:15:07 INDEX NO. 601610/2015 FILED: NASSAU COUNTY CLERK 09/08/2023 05:52 PM NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 09/08/2023 to NYCPL § 5206 when the trustee demonstrated that the debtor did not occupy the premises at the time that the exemption was claimed. In re Bace, 364 B.R. 166 (Bankr. W.D.N.Y. 2007). 11. A homeowner may have only one principal residence. In re Miller, 203 B.R. 65, 68 (Bankr. N.D.N.Y. 1989). For purposes of establishing that the residence constitutes a principal residence in connection with the claim of a homestead exemption, there must be (1) “actual physical occupancy of the residence on a regular basis” meaning that the residence is “occupied by the debtor on a more regular basis than any other residence”; and (2) “intent to reside there permanently.” In re Scott, 233 B.R. 32, 40 (Bankr. N.D.N.Y. 1998). See also, In re Moulterie, 398 B.R. 501, 505 (Bankr. E.D.N.Y. 2008), 12. According to the Debtor’s petition, the Debtor resides at the Carroll Avenue Property. As stated inter alia, the numerous documents provided by the Debtor all provide that his address is the Carroll Avenue Property. Moreover, his personal property is likewise located at the Carroll Avenue Property. Thus, all of the documents support that his residence, at least for the purposes of where he “resides” must be the Carroll Avenue Property. Accordingly, the claim of a homestead exemption as to the Henry Street Property must be disallowed. CONCLUSION 13. Absent admissible evidence to the contrary, this Court must conclude that the Debtor resides at the Carroll Avenue Property and thus, the Debtor is not entitled to a claim of a homestead exemption under the NYCPLR as to the Henry Street Property. WHEREFORE, the Trustee respectfully requests that this Honorable Court enter an Order sustaining the Trustee’s objection to the claim of a homestead exemption pursuant to NYCPLR as to the Henry Street Property, together with such other and further relief that this Court determines just and proper under the facts and circumstances herein. Case 8-17-71674-ast Doc 49-1 Filed 10/18/22 Entered 10/18/22 10:15:07 INDEX NO. 601610/2015 FILED: NASSAU COUNTY CLERK 09/08/2023 05:52 PM NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 09/08/2023 Dated: Huntington, New York February 18, 2016 Law Offices of Avrum J. Rosen, PLLC Attorneys for Allan B. Mendelsohn, Trustee BY: S/Fred S. Kantrow Fred S. Kantrow 38 New Street Huntington, New York 11743 631 423 8527 fskantrow@gmail.com