Benn v. Cole (In Re Benn)

Because I disagree with the majority’s premise that “not being subject to attachment and execution” is the equivalent of “exempt” or “exempt from attachment and execution,” I dissent.

Before October 1, 1979, the concepts of exempt property and property not subject to attachment were explicitly distinct. Under § 70(a) of the Bankruptcy Act of 1898 (“Act”), the trustee was “vested by operation of law with the title of the bankrupt ... except insofar as it is to property which is held to be exempt ....” 11 U.S.C. § 110(a) (repealed). In other words, exempt property never came into what we now…