In re: Nahed Abdelbassir Eleiwa

FILED JUN 05 2013 1 SUSAN M SPRAUL, CLERK U.S. BKCY. APP. PANEL 2 OF THE NINTH CIRCUIT

3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT

5 In re: ) BAP No. CC-12-1559-ClDKi ) 6 NAHED ABDELBASSIR ELEIWA, ) Bk. No. 6:12-bk-22839 MJ ) 7 Debtor. ) ______________________________) 8 ) NAHED ABDELBASSIR ELEIWA, ) 9 ) Appellant, ) 10 ) v. ) M E M O R A N D U M1 11 ) ROBERT S. WHITMORE, Chapter 7 ) 12 Trustee, ) ) 13 Appellee. ) ______________________________) 14 Argued and Submitted on May 16, 2013 15 at Pasadena, California

16 Filed - June 5, 2013

17 Appeal from the United States Bankruptcy Court for the Central District of California 18 Honorable Meredith A. Jury, Bankruptcy Judge, Presiding 19 _________________

20 Appearances: Zulu Ali of the Law Offices of Zulu Ali argued for Appellant Nahed AbdElbassir Eleiwa; Scott H. 21 Talkov of Reid & Hellyer, APC argued for Appellee Robert S. Whitmore, Chapter 7 Trustee. 22 _________________

24 1 This disposition is not appropriate for publication. 25 Although it may be cited for whatever persuasive value it may have (see Fed. R. App. P. 32.1), it has no precedential value. 26 See 9th Cir. BAP Rule 8013-1.

1 Before: CLEMENT,2 DUNN, and KIRSCHER, Bankruptcy Judges. 2 INTRODUCTION 3 The debtor filed a chapter 73 bankruptcy in which she 4 claimed homestead exemptions in two real properties that she 5 neither owned, nor lived in, on the date of the petition and 6 “tools of the trade” exemptions in two vehicles. The chapter 7 7 trustee objected to these exemptions, which the bankruptcy court 8 sustained. An appeal followed, and we now AFFIRM in part and 9 VACATE and REMAND in part. 10 FACTS 11 Nahed Eleiwa filed a chapter 7 petition, and Robert Whitmore 12 was appointed as the trustee over her estate. On the petition, 13 Eleiwa described her street address as 1040 South Mt. Vernon 14 Avenue, #G-105, Colton, California and her county of residence as 15 San Bernardino. Colton is a city in San Bernardino County. In the 16 Statement of Financial Affairs, she denied residing at any other 17 address within the past three years. 18 On Schedule A, Eleiwa listed two real properties: one 19 located in Mission Viejo, California and another in Irvine, 20 California. But she did not indicate the nature of her interest 21 in these properties (i.e., fee simple, community property, etc.). 22 Mission Viejo and Irvine are each located in Orange County. On

23 2 Hon. Fredrick E. Clement, United States Bankruptcy Judge 24 for the Eastern District of California, sitting by designation. 3 25 Unless otherwise indicated, all chapter, section, and rule references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and 26 to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.

1 Schedule B, Eleiwa listed two vehicles: a 2003 Toyota Camry and a 2 2011 Toyota Sienna.4 However, she indicated that they were the 3 property of her spouse Alaa Touni. 4 Although Eleiwa scheduled the Mission Viejo and Irvine 5 properties, grant deeds recorded in Orange County showed that 6 each property was transferred, without consideration, 7 approximately fourteen months prior to the petition date. The 8 transferor, as stated in the grant deeds, was the Keant Trust, of 9 which Eleiwa and her spouse are the co-trustees. The transferee 10 was Amro Elawa. The record is silent as to the identities of the 11 settlor and beneficiary and the terms of the Keant Trust, 12 including whether the trust is revocable. 13 Believing the grant deeds to be fraudulent transfers, 14 Whitmore commenced an adversary proceeding against Elawa to 15 recover the real properties. When Elawa failed to respond to the 16 complaint, Whitmore obtained a default judgment, which voided the 17 grant deeds and reverted title back to the Keant Trust. 18 Before the entry of the default judgment, Eleiwa amended 19 Schedule C to change how she exempted the two real properties and 20 two vehicles.5 She now claimed homestead exemptions in the

21 4 We have taken judicial notice of the bankruptcy court 22 docket and various documents filed through the electronic docketing system. See O’Rourke v. Seaboard Sur. Co. (In re E.R. 23 Fegert, Inc.), 887 F.2d 955, 957-58 (9th Cir. 1988); Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 24 (9th Cir. BAP 2003). 5 25 In the original Schedule C, Eleiwa utilized the exemption scheme found at California Code of Civil Procedure § 703.140(b). 26 (continued...)

1 Mission Viejo and Irvine properties in the amounts of $150,000 2 and $25,000, respectively, pursuant to California Code of Civil 3 Procedure § 704.730(a)(3)(B). She also claimed a $7,279 exemption 4 in the Camry and a $2,000 exemption in the Sienna as “tools of 5 the trade” under California Code of Civil Procedure § 704.060. 6 Whitmore timely filed an objection to the amended 7 exemptions, and the bankruptcy court sustained the objection, 8 disallowing each of the four exemptions. 9 JURISDICTION 10 The bankruptcy court had jurisdiction under 28 U.S.C. 11 §§ 1334 and 157(b)(2)(B). An order disallowing a debtor’s claim 12 of exemption constitutes a final, appealable order. See Preblich 13 v. Battley, 181 F.3d 1048, 1056 (9th Cir. 1999). We therefore 14 have jurisdiction pursuant to 28 U.S.C. § 158(a)(1) and (b). 15 ISSUES 16 This appeal presents but two issues: did the bankruptcy 17 court err in disallowing Eleiwa’s (1) homestead exemptions in the 18 Mission Viejo property and the Irvine property, and (2) tools of 19 the trade exemptions in the Camry and the Sienna? 20 STANDARDS OF REVIEW 21 We review legal issues de novo and the bankruptcy court’s 22

23 5 (...continued) 24 Specifically, she claimed a $14,849 homestead exemption in the Irvine property, a $0 wildcard exemption in the Mission Viejo 25 property, and a $2,011 wildcard exemption in the Sienna. For the Camry, she combined a $3,525 vehicle exemption and a $3,754 26 wildcard exemption.

1 factual findings under a clearly erroneous standard. Kelley v. 2 Locke (In re Kelley), 300 B.R. 11, 16 (9th Cir. BAP 2003). A 3 factual finding is clearly erroneous if the record is devoid of 4 evidence to support it or if the reviewing court is “left with 5 the definite and firm conviction that a mistake” has been made in 6 the finding. Greene v. Savage (In re Greene), 583 F.3d 614, 618 7 (9th Cir. 2009). If the bankruptcy court’s view of the evidence 8 is plausible, viewed from the prism of the entire record, the 9 court’s factual findings cannot be clearly erroneous. See 10 Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 11 (1985). 12 DISCUSSION 13 I. The Law of Exemptions. 14 When a debtor files a chapter 7 petition, all of her assets 15 become property of the estate and may be used to pay creditors, 16 subject to the debtor’s ability to reclaim specified property as 17 exempt. Schwab v. Reilly, 130 S. Ct. 2652, 2657 (2010). 18 A debtor may exempt property either as permitted by the 19 federal exemption scheme found at § 522(d) or, if the applicable 20 state has opted out of that scheme, as allowed under relevant 21 state law. See 11 U.S.C. § 522(b). California has elected not to 22 utilize the federal exemptions and, instead, offers a debtor the 23 choice between two different exemption schemes. See Cal. Civ. 24 Proc. Code §§ 703.130, 703.140(a). Here, Eleiwa has chosen the 25 set of exemptions provided in California Code of Civil Procedure 26 §§ 703.010-704.995 (except for those exemptions provided in

1 § 703.140(b)). See id. § 703.140(a). 2 Once a debtor claims an exemption, it is presumptively 3 valid, and the objecting party shoulders the burden of proving 4 that the exemption is not properly claimed. See Rule 4003(c); 5 Carter v. Anderson (In re Carter), 182 F.3d 1027, 1029 n.3 (9th 6 Cir. 1999). 7 II. Homestead Exemptions. 8 Eleiwa claimed homestead exemptions under California Code of 9 Civil Procedure § 704.730(a)(3)(B) based on her alleged status as 10 a disabled person6 and attempted to split the allowed $175,000

11 6 12 This exemption statute provides, in relevant part,

13 (a) The amount of the homestead exemption is one of the following: 14 . . . 15 (3) One hundred seventy-five thousand dollars 16 ($175,000) if the judgment debtor or spouse of the judgment debtor who resides in the homestead is at 17 the time of the attempted sale of the homestead any one of the following: 18 . . . 19 (B) A person physically or mentally disabled 20 who as a result of that disability is unable to engage in substantial gainful employment. 21 There is a rebuttable presumption affecting the burden of proof that a person receiving 22 disability insurance benefit payments under Title II or supplemental security income 23 payments under Title XVI of the federal Social Security Act satisfies the 24 requirements of this paragraph as to his or her inability to engage in substantial 25 gainful employment.

26 (continued...)

1 exemption amount between the Mission Viejo and Irvine 2 properties.7 The bankruptcy court sustained Whitmore’s objection 3 to the two homestead exemptions on multiple, alternative grounds: 4 (1) that the two real properties were not property of the estate; 5 and (2) that Eleiwa did not reside in either of the properties.8 6 On appeal, Eleiwa has challenged both of these grounds. 7 A. Property of the Estate. 8 First, we review the bankruptcy court’s findings that the 9 Mission Viejo and Irvine properties were not property of the 10 estate both on the petition date and after Whitmore’s avoidance 11 of the fraudulent transfers. 12 It is a “well settled rule that property cannot be exempted 13 unless it is first property of the estate.” Heintz v. Carey 14 (In re Heintz), 198 B.R. 581, 586 (9th Cir. BAP 1996); accord 15 Owen v. Owen, 500 U.S. 305, 308 (1991). As the Ninth Circuit has 16 stated, 17 Whether [a] [d]ebtor’s [property is] excluded from the

18 6 (...continued) 19 Cal. Civ. Proc. Code § 704.730(a)(3)(B). 7 20 However, a debtor is entitled to only one such exemption. See Cal. Civ. Proc. Code § 704.710(c) (defining “homestead” as 21 debtor’s “principal dwelling”); see also id. § 704.720(c) (permitting only one homestead exemption where debtor and spouse 22 each reside in separate homesteads); cf. Rowe v. Jackman (In re Rowe), 236 B.R. 11, 14 (9th Cir. BAP 1999) (holding that 23 married couple was entitled to one homestead exemption under Nevada law). 24 8 The bankruptcy court also sustained the objection on the 25 ground that § 522(g) precludes Eleiwa from claiming exemptions in the two fraudulently transferred properties. However, since we 26 affirm on the other two grounds, we do not reach this issue.

1 estate is a question that should be addressed by the bankruptcy court in the first instance. The exemption 2 question arises only if the [property is] first determined to be property of the estate. In fact, if 3 the [property is] not property of the estate, the bankruptcy court should not make a decision on the 4 exemption question.

5 Ehrenberg v. S. Cal. Permanente Med. Grp. (In re Moses), 167 F.3d 6 470, 474 (9th Cir. 1999) (quoting Spirtos v. Moreno 7 (In re Spirtos), 992 F.2d 1004, 1007 (9th Cir. 1993)). 8 Since property of the estate includes “all legal or 9 equitable interests of the debtor in property as of the 10 commencement of the case,” 11 U.S.C. § 541(a)(1), a debtor can 11 exempt property that she owned as of the petition date. See 12 Robertson v. Alsberg (In re Alsberg), 161 B.R. 680, 683 (9th Cir. 13 BAP 1993), aff’d, 68 F.3d 312 (9th Cir. 1995). However, in this 14 instance, the bankruptcy court correctly found that Eleiwa did 15 not have an interest in the two real properties on the petition 16 date. The evidence shows, on that date, Amro Elawa, a third 17 party, held title to the Mission Viejo and Irvine properties. 18 Alternatively, “[a]ny interest in property that the trustee 19 recovers under [§ 550]” also becomes property of the estate. 20 11 U.S.C. § 541(a)(3). Yet, in this case, once the bankruptcy 21 court entered the default judgment in favor of Whitmore, voiding 22 the grant deeds, title reverted back to the Keant Trust, the 23 transferor, rather than to Eleiwa. The Keant Trust held title to 24 the two properties, and Eleiwa was only a co-trustee of that 25 trust. Under California law, the Keant Trust is presumed to be 26 the owner of that property. See Cal. Evid. Code § 662. And

1 without any evidence showing that Eleiwa was the trustor and that 2 the trust was revocable, the bankruptcy court appropriately found 3 that Eleiwa did not own the properties upon Whitmore’s recovery. 4 The fact that Eleiwa was the co-trustee of the Keant Trust did 5 not mean that the trust’s property became her bankruptcy estate’s 6 property. See 11 U.S.C. § 541(b)(1), (d); Foothill Capital Corp. 7 v. Clare’s Food Mkt., Inc. (In re Coupon Clearing Serv., Inc.), 8 113 F.3d 1091, 1099 (9th Cir. 1997). 9 B. Residency. 10 More problematic to Eleiwa’s homestead exemption claims are 11 the bankruptcy court’s findings that she did not reside in either 12 the Mission Viejo or Irvine property on the petition date. The 13 California homestead exemption “applies when a [debtor] has 14 continuously resided in a dwelling from the time that a 15 creditor’s lien attaches until a court’s determination that the 16 exemption applies.” Kelley, 300 B.R. at 17 (citing Cal. Civ. 17 Proc. Code § 704.710(c)). 18 On appeal, Eleiwa argues that the evidence presented below 19 unequivocally established her residency in the two real 20 properties. However, we reject that argument and conclude that 21 the bankruptcy court’s findings that Eleiwa did not reside at 22 either property were not clearly erroneous. 23 Eleiwa first takes issue with the bankruptcy court’s 24 conclusion that she is “kind of stuck with what [she] told the 25 Court under penalty of perjury” in her petition. Hr’g Tr. 5:8-9, 26 Oct. 23, 2012. Specifically, the petition shows that Eleiwa

1 claimed the Colton address as her street address, rather than the 2 Mission Viejo or Irvine property. Further, on the petition, she 3 indicated her county of residence as being San Bernardino (where 4 Colton is located), rather than Orange (where the two real 5 properties are located). 6 Any representation made in a debtor’s petition, signed under 7 penalty of perjury, is an admission that may be offered against 8 that debtor. See Am. Express Travel Related Servs. Co. v. Vee 9 Vinhnee (In re Vee Vinhnee), 336 B.R. 437, 449 (9th Cir. BAP 10 2005); Campbell v. Verizon Wireless S-CA (In re Campbell), 11 336 B.R. 430, 436 (9th Cir. BAP 2005). Thus, notwithstanding 12 Eleiwa’s contention that she withdrew the admissions,9 it was 13 appropriate for the bankruptcy court to consider Eleiwa’s 14 admissions made in the petition about her street address and her 15 county of residence as evidence in ruling on the homestead 16 exemptions. 17 Second, Eleiwa argues that the bankruptcy court erred by 18 looking only at the mailing address on the utility bills while 19 failing to give any weight to the service address listed on those 20 bills (which had the Mission Viejo property as the service 21 address).10 However, this argument also falls short because that

22 9 Eleiwa argues that by amending the schedules, she withdrew 23 any admissions she may have made in the original schedules. However, Eleiwa never amended the petition, which contained the 24 subject admissions considered by the bankruptcy court. 10 25 In her opposition to Whitmore’s objection to the exemptions, Eleiwa attached several utility bills addressed to 26 (continued...)

1 portion of the bills is equivocal at best on the issue of where 2 Eleiwa resided on the petition date. 3 Evidence that a utility service is provided to a particular 4 address under a specific customer’s name gives rise to two 5 possible inferences: one that the customer resided at that 6 address and another that the customer did not reside at that 7 address but was only paying for the service provided there. Here, 8 the bankruptcy court adopted the latter version of the facts, 9 possibly in light of the fact that the bills were mailed to 10 Eleiwa at an address different than the service address. Where 11 there are two plausible versions of the facts to be drawn from 12 the evidence, the court’s findings cannot be clearly erroneous. 13 Vill. Nurseries v. Gould (In re Baldwin Builders), 232 B.R. 406, 14 410 (9th Cir. BAP 1999). Thus, the bankruptcy court did not err 15 in finding that the utility bills failed to establish that Eleiwa 16 17

18 10 19 (...continued) either her or her spouse. Each bill listed a service address 20 (i.e., where the utility service was provided) and a mailing address (i.e., where the bill was mailed to). All of the utility 21 bills showed the Mission Viejo property as the service address. While the earlier bills listed that property also as the mailing 22 address, the more recent bills (i.e., for those months immediately before and after the petition date) were mailed to a 23 post office box. When reviewing the bills, the bankruptcy court noted that “if you look at where those bills were mailed, they 24 were mailed to a post office box of the husband.” Hr’g Tr. 5:15-17, Oct. 23, 2012. The court then concluded, “If they did 25 live in the Mission Viejo address, they would get their mail there, and they are not getting their mail there.” Id. at 26 5:18-20.

1 resided at the Mission Viejo or Irvine property.11 2 For these reasons, we affirm the bankruptcy court’s 3 disallowance of the two homestead exemptions. 4 III. Tools of the Trade Exemptions. 5 Eleiwa also appeals the bankruptcy court’s disallowance of 6 her claimed exemptions in the Camry and the Sienna as tools of 7 the trade of her spouse. The court’s ruling was based on (1) the 8 lack of evidence showing that Eleiwa’s spouse used the vehicles 9 in his business and (2) the aggregate exempted value of the 10 vehicles exceeding the statutory exemption amount. 11 California Code of Civil Procedure § 704.060 authorizes a 12 debtor to exempt tools of the trade up to an aggregate equity 13 value of $6,075 if such tools are “reasonably necessary” to and 14 “actually used” by the debtor or the debtor’s spouse in the 15 exercise of his or her trade, business, or profession.12

16 11 Eleiwa did not actually present any evidence to show that 17 she resided at the Irvine property. As previously noted, the utility bills were only for the Mission Viejo property. 18 12 The relevant portions of this statute provide, 19 (a) Tools, implements, instruments, materials, 20 uniforms, furnishings, books, equipment, one commercial motor vehicle, one vessel, and other personal property 21 are exempt to the extent that the aggregate equity therein does not exceed: 22 (1) Six thousand seventy-five dollars ($6,075), if 23 reasonably necessary to and actually used by the judgment debtor in the exercise of the trade, 24 business, or profession by which the judgment debtor earns a livelihood. 25 (2) Six thousand seventy-five dollars ($6,075), if 26 (continued...)

1 Here, Eleiwa claimed a $7,279 exemption in the Camry and a 2 $2,000 exemption in the Sienna. On appeal, she appears to argue 3 that the bankruptcy court’s factual findings were clearly 4 erroneous, but Eleiwa’s argument is premised on new evidence not 5 presented below. 6 A. Burden of Proof. 7 Because the party objecting to an exemption has the burden 8 of proof, Rule 4003(c), that party has the initial burden of 9 producing evidence to rebut the presumptively valid exemption. 10 Carter, 182 F.3d at 1029 n.3. Here, Whitmore did produce some 11 evidence, in the form of Eleiwa’s Schedule I and Statement of 12 Financial Affairs, showing that Eleiwa was currently unemployed

13 12 14 (...continued) reasonably necessary to and actually used by the 15 spouse of the judgment debtor in the exercise of the trade, business, or profession by which the 16 spouse earns a livelihood.

17 . . .

18 (c) Notwithstanding subdivision (a), a motor vehicle is not exempt under subdivision (a) if there is a motor 19 vehicle exempt under Section 704.010 which is reasonably adequate for use in the trade, business, or 20 profession for which the exemption is claimed under this section. 21 (d) Notwithstanding subdivisions (a) and (b): 22 (1) The amount of the exemption for a commercial 23 motor vehicle under paragraph (1) or (2) of subdivision (a) is limited to four thousand eight 24 hundred fifty dollars ($4,850).

25 . . . . 26 Cal. Civ. Proc. Code § 704.060.

1 and had not operated a business in years. This evidence was 2 sufficient to meet Whitmore’s initial burden to establish that 3 Eleiwa could not exempt the two vehicles as her own tools of the 4 trade under California Code of Civil Procedure § 704.060(a)(1). 5 However, Whitmore did not come forward with any evidence to rebut 6 Eleiwa’s presumptively valid exemptions as her non-debtor 7 spouse’s tools of the trade under § 704.060(a)(2). 8 Nevertheless, the bankruptcy court concluded that Eleiwa did 9 not meet her burden of producing evidence to demonstrate that the 10 vehicles qualified as her spouse’s tools of the trade. Yet, the 11 burden of production does not shift to a debtor until the 12 objecting party has initially produced evidence to rebut the 13 exemption. See id. Because no evidence was presented by Whitmore 14 on this issue, the bankruptcy court erred in finding that Eleiwa 15 failed to produce any unequivocal evidence when that burden had 16 not yet shifted to her. 17 But even if the tools of the trade exemptions in the 18 vehicles are presumptively valid under California Code of Civil 19 Procedure § 704.060(a)(2), we must address other preliminary 20 issues affecting whether Eleiwa can claim these exemptions. 21 B. Exemption Limit. 22 First, a debtor cannot claim an exemption in an amount 23 greater than what the applicable statute will allow. For tools of 24 the trade, the statute provides that the aggregate equity of such 25 tools claimed exempt cannot exceed $6,075. See Cal. Civ. Proc. 26 Code § 704.060(a)(1), (2). Here, Eleiwa claimed a $7,279

1 exemption in the Camry and a $2,000 exemption in the Sienna. She 2 valued the two vehicles at $7,279 and $19,017, respectively, on 3 Schedule B, and she did not include any debts securing them on 4 Schedule D. Thus, the aggregate equity of the vehicles claimed 5 exempt was $9,279, clearly above the $6,075 limit. 6 However, we need not choose which of the two exemptions in 7 the vehicles must be disallowed because the $7,279 exemption in 8 the Camry, by itself, exceeds the statutory limit. Thus, the 9 bankruptcy court properly disallowed the exemption in that 10 vehicle as a tool of the trade. 11 C. Property of the Estate. 12 Second, as previously discussed, the bankruptcy court must 13 find that the property belongs to the estate before deciding 14 whether that property has been properly exempted. See Moses, 15 167 F.3d at 474. Here, the bankruptcy court did not make adequate 16 findings as to whether the vehicles were property of the estate. 17 The court noted, “The Debtor is now claiming the cars are owned 18 by the non-filing husband. I don’t know whether the estate has a 19 community property interest in the cars. It may well have. I 20 don’t know why it wouldn’t.” Hr’g Tr. 7:22-8:1, Oct. 23, 2012. As 21 a result, this matter must be remanded to the bankruptcy court on 22 the property of the estate issue. However, since the exemption in 23 the Camry must be disallowed for exceeding the statutory limit, 24 the proceeding on remand will only encompass determining whether 25 the Sienna is property of the estate. 26

1 D. Commercial Motor Vehicle. 2 Lastly, we address the “commercial motor vehicle” argument 3 raised by Whitmore. While California Code of Civil Procedure 4 § 704.060 places no limitation on the number of “tools,” 5 “implements,” or ”other personal property” that a debtor can 6 exempt, the statute strictly permits the debtor to exempt only 7 “one commercial motor vehicle” and “one vessel.” Cal. Civ. Proc. 8 Code § 704.060(a). Whitmore contends that Eleiwa cannot exempt 9 both vehicles but that she is limited to choosing one due to the 10 statute’s “one commercial motor vehicle” language.13 11 However, we need not reach that issue at this point since we 12 affirm the bankruptcy court’s disallowance of the claimed 13 exemption in one of the two vehicles. Additionally, the 14 bankruptcy court made no finding that either of the vehicles was 15 a commercial motor vehicle. Rather, the record shows that the 16 court disallowed the exemptions in the vehicles generally as 17 tools of the trade. 18 CONCLUSION 19 For the reasons set forth above, we AFFIRM the bankruptcy 20 court’s order disallowing Eleiwa’s exemptions in the Mission 21 Viejo property, the Irvine property, and the Camry. We VACATE 22 that part of the order disallowing the exemption in the Sienna 23 and REMAND for a determination of whether Eleiwa has an interest

24 13 It is unclear whether Whitmore is arguing that a debtor 25 can only exempt a motor vehicle under § 704.060 as a “commercial motor vehicle” and that she can never exempt it as a “tool” or 26 “other personal property.”

1 in the Sienna that would constitute property of the estate. 2 On remand, if the bankruptcy court finds that the Sienna is 3 property of the estate, the court must then determine whether 4 Eleiwa can claim the Sienna as her spouse’s tool of the trade, 5 applying the appropriate burden of proof. In contrast, if the 6 court finds that the estate has no interest in the Sienna, the 7 exemption will be disallowed. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26