Opinion
NOT FOR PUBLICATION
ORDER ON CHAPTER 13 TRUSTEE'S MOTION TO MODIFY PLAN
PETER W. BOWIE, Judge.
Debtor's plan was confirmed on February 10, 2012. On April 28, 2014, Debtor filed a motion for authority to sell her residence at 5565 Adobe Falls (Property). In the motion Debtor asserted that the "proceeds the Debtor is to receive is within the amount of the homestead amount claimed in her Chapter 13 case." However, the motion did not seek a ruling to that effect. Initially the Trustee filed opposition to the motion on the ground that Debtor was not entitled to a homestead exemption because she had not recorded a Declaration of Homestead. However, on June 6, 2 014, the Trustee changed tack. He simultaneously withdrew his opposition to the sales motion, and filed the motion to modify the plan, based upon the argument that Debtor could not exempt the proceeds, and that such proceeds ought to be applied to increase the distribution to creditors.
On June 20, 2 014, the Court granted Debtor's motion authorizing the sale of the Property. The Court made no ruling on whether the proceeds were exempt.
On July 23, 2 014, the Court held a hearing on the Trustee's Motion to Modify. At the hearing, counsel for the Debtor informed the Court that the Property had not been sold. Rather, Debtor hoped to get a ruling from the Court on the exemption issue before going ahead (or not) with the sale. The Court took the Trustee's motion under submission.
Upon reflection the Court concludes that the motion to modify cannot be granted at this time. Pursuant to the motion, the Trustee "seeks to increase the pro-rata paid to the general unsecured creditors ... to include the non-exempt proceeds from the sale of Debtor's dwelling." However, as of present date there are no such proceeds. If the Debtor goes forward with the sale and proceeds are generated, the Trustee is of course entitled to renew the motion.
At the hearing counsel for the Debtor suggested that Debtor wanted the Court to rule on the exemption issue prior to the sale, so she could decide whether or not to proceed with the sale. However, this Court, like all federal courts, lacks jurisdiction to render advisory opinions. The Court "may not decide questions that cannot affect the rights of litigants in the case before them or give opinions advising what the law would be upon a hypothetical state of facts." Chafin v. Chafin, ___ U.S. ___, 133 S.Ct. 1017, 1023, 185 L.Ed.2d 1 (2013).
For the reasons set forth above, the Trustee's motion to modify is denied without prejudice. The Court makes no ruling on whether Debtor would be entitled to claim an exemption in any proceeds of her Property, should she decide to sell.
IT IS SO ORDERED.