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United States Court of Appeals,
Fifth Circuit.
No. 94-30068
Summary Calendar.
In the Matter of Laurie Maria BROCATO, Debtor,
Laurie Maria BROCATO, Appellant,
v.
Cynthia Lee TRAINA, Appellee.
Sept. 6, 1994.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before GARWOOD, DAVIS and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge:
Does Louisiana law exempt from seizure a bankruptcy debtor's
real property occupied by the debtor as her home and owned by her
in indivision with another who is not the debtor's spouse? The
bankruptcy court and district court said no. Following our de novo
review, we agree and affirm.
FACTS
Debtor, Marie Louise Brocato, sought relief under Chapter 7 of
the Bankruptcy Code. She claimed a homestead exemption for her
residence in New Orleans which she owns in indivision with Mary
Louise Singleton. The trustee objected contending that the
homestead exemption provided by Article 12 § 9 of the Louisiana
Constitution of 1974, and Title 20 Section 1 of the Louisiana
Revised Statutes is not available for property owned in indivision
with another not the debtor's spouse. The bankruptcy court and
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district court agreed.
DISCUSSION
Article 12 Section 9 of the Louisiana Constitution of 1974
provides:
"The Legislature shall provide by law for exemptions from
seizure and sale, as well as waivers of and exclusions from
such exemptions. The exemption shall extend to at least
fifteen thousand dollars in value of a homestead, as provided
by law."
Title 20 Section 1 of the Louisiana Revised Statutes provides
in pertinent part:
A. The Bona fide homestead, consisting of a tract of land
or two or more tracts of land with a residence on the one
tract or a field, pasture, or garden on the other tract or
tracts, not exceeding one hundred sixty acres, buildings and
appurtenances, whether rural or urban, owned, and occupied by
any person, is exempt from any seizure and ale under any writ,
mandate or process whatsoever, except as provided by
Subsections C and D of this Section. This exemption extends
to fifteen thousand dollars in value of a homestead. It shall
extend to the surviving spouse or minor children of a deceased
owner and shall apply when the homestead is occupied as such
and title to it is in either the husband or wife but not to
more than one homestead owned by the husband or the wife. The
exemption shall continue to apply to a homestead otherwise
eligible while owned in indivision by the spouses, and
occupied by either of them, when the community property regime
of which the homestead is a part is dissolved by judgment
which so provides, pursuant to Articles 155, 159, or 2375 of
the Louisiana Civil Code. If either spouse becomes the sole
owner and continues to occupy the homestead as such, the
exemption as to that spouse shall be deemed to have continued
uninterrupted.
The Louisiana Supreme Court has not addressed the question
since adoption of the 1974 Constitution. We examine and give
"proper regard" to the decisions of other Louisiana courts which
have. Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct.
1776, 1783, 18 L.Ed.2d 886 (1967). The Supreme Court has addressed
the issue under earlier Constitution. We find an unbroken line of
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Louisiana appellate court decisions beginning with Henderson v.
Hoy, 26 La.Ann. 156 (1874), and ending with Gulfco Finance Co. v.
Browder, 482 So.2d 1019 (La.App. 3rd Cir.1986), squarely holding
that property owned in indivision with others than a spouse and
children of that spouse in a community regime, cannot qualify for
the homestead exemption.1
Appellant argues that Gulfco is wrongly decided because the
law changed with the 1974 Constitution. It has, but not in this
regard. We agree with the Louisiana Third Circuit Court of Appeal
that:
"... the change in the law relates to the old requirement that
a party had to be the head of a household or have persons
dependent on him for support. This is no longer a
requirement. Now, "any person' may claim the exemption if he
owns and occupies the property. In addition, the exempted
value has changed." Gulfco, 482 So.2d at 1021.
As Appellee points out, to read the phrase "any person" in the
statute as broadly as Appellant does renders much of the statute
surplusage. Appellant argues that the words "any person" indicate
that anyone with a degree of ownership who occupies the property as
their home may claim the exemption. But that ignores the further
language in the statute which extends the exemption to "a homestead
otherwise eligible while owned in indivision by the spouses, and
occupied by either of them...." If the phrase "owned ... by any
person ..." included an owner in indivision, then the specific
extension to spouses and children in a community property regime
would be unnecessary. Additionally, to accept Appellant's reading
1Additional cases from both the Supreme and appellate courts
are found collected in Gulfco, 482 So.2d at 1020.
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of "any person" would necessarily include juridical persons and
even Appellant does not contend for that position.
The judgment of the district court is
AFFIRMED.

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