HELP! Exemption question

[starr4law]

Because the way that I am reading Oregon rule is that you must actually RESIDE in Oregon at the time of filing in order to use their exemptions.

The one thing I didn't factor in was whether or not homestead issues are at play here. That could change the picture quite a bit. But, for the sake of argument, let's assume there are none.

The 730 rule applies if and only if the state that you moved from allows you to actually use their exemptions (some states, like Arizona and Oregon, actually specify that you must be an actual resident at the time of filing).

Now remember that I am NOT an attorney and you should seek legal advice from one, but I have seen this once or twice before. I will be curious to see what advice the OP gets from her attorney.

[mrskal]

Found this for you, while it may no help what exemptions you have with what state, looks like the retirement funds would be exempt no matter what, hope that helps

Under a new provision of the bankruptcy law, enacted in October 2005, virtually all types of pension and retirement accounts recognized by the IRS are completely exempt regardless of what state you live in.

This provision exempts "retirement funds to the extent that those funds are in a fund or account that is exempt from taxation under Sections 401, 403, 408, 408A, 414, 457, or 501(a) of the Internal Revenue Code."

This list covers 401(k)s, 403(b)s, profit-sharing and money purchase plans, IRAs (including SEP and SIMPLE plans), as well as defined-benefit plans.

The exemption applies whether you rely on the list of federal bankruptcy exemptions (11 U.S.C. 522(d)(12)) or the exemption laws of your own state (See 11 U.S.C. 522(b)(3)(C)). Section 522(b)(4) spells out the specific requirements for qualifying under these provisions.

These exemptions are unlimited, except for Roth and traditional IRAs, which are capped at an aggregate IRA account value of $1 million per individual (adjusted every three years for inflation). (See 11 U.S.C. 522(n))

SEP and SIMPLE IRAs, along with all other types of non-IRA retirement accounts such as 401(k)s and 403(b)s, are completely exempt.

[justfiveofus]

MrsKal, thanks. I saw that today and I want to definitely go to an attorney because that retirement account is really the only thing of real value that we have so I don't want to screw it up and risk losing it. Of course, it's a government retirement program so it's a fairly long process to get it out... they told us somewhere in the neighborhood of 6+ months.

[justfiveofus]

Okay this is getting a little frustrating because the lawyer won't take our case because he doesn't practice in Oregon and he doesn't want to look at all of our BK papers.

[Pandora]

Okay this is getting a little frustrating because the lawyer won't take our case because he doesn't practice in Oregon and he doesn't want to look at all of our BK papers.

Just change the schedules and exemptions to what Oregon allows - its the only thing you can do at this point if no attorney will take your case on given the circumstances; you cant use federal exemptions according to Iowa and/or Oregon law. You also need to look at what the timeframe the trustee gave you to get those papers to him/her also, I think its something like 15 calendar days from the 341 (read that somewhere I know...but not sure where - maybe on one of the links I gave you previously?).

[Pandora]

Because the way that I am reading Oregon rule is that you must actually RESIDE in Oregon at the time of filing in order to use their exemptions.

The one thing I didn't factor in was whether or not homestead issues are at play here. That could change the picture quite a bit. But, for the sake of argument, let's assume there are none.

The 730 rule applies if and only if the state that you moved from allows you to actually use their exemptions (some states, like Arizona and Oregon, actually specify that you must be an actual resident at the time of filing).

Now remember that I am NOT an attorney and you should seek legal advice from one, but I have seen this once or twice before. I will be curious to see what advice the OP gets from her attorney.

Otherwise, the law of the state where the debtor was domiciled for the 180 days immediately preceding such 730-day period is used."

Now - Iowa is stating the exact same thing:

* If you have lived or made your residence in your current state for at least two years, you can use that state’s exemptions. (cant use this one)

* If you have lived or made your residence in your current state for more than 91 days but less than two years, you must use the exemptions of the state where you lived for the better part of the 180-day period immediately prior to the two-year period preceding your filing. (this one is the ticket)

* If you have lived or made your residence in your current state for fewer than 91 days, you’ll need to wait until you have lived there for at least 91 days before you can file (and then use whatever exemptions are available to you according to the rules set out above). (this one applies in part, but number 2 above still applies no matter what)

* If the state you are filing in offers a choice between the state and federal bankruptcy exemptions, you can use the federal exemption list regardless of how long you’ve been living in the state. (Neither Iowa nor Oregon offer a choice for federal)

* If these rules deprive you of the right to use any state’s exemptions, you can use the federal exemption list. For example, some states allow their exemptions to be used only by current state residents, which might leave former residents who haven’t lived in their new home state for at least two years without any available state exemptions. (this one doesnt apply at all because Oregon's exemptions can be used)

ETA (after further searching to try to understand better):

Found this neat little chart http://exemptionsexpress.com/Montana_to_Wyoming.html

Oregon is a screwed up state after reading through all of this - thats all I gotta say LMAO!

Good grief. One place says you can use federal exemptions - the other says No... WTH?

[starr4law]

[Pandora]

starr4law

it is confusing isnt it? On one hand its saying one thing but on the other, its saying something different.

I thought domicile and residency could be separate entities for the purpose of BK depending on the state and how they worked it - confusing. In the NOLO book it states due to BK laws changing in 2005 then the 730 / 180 day rule applies no matter what, but then it just goes haywire from there LOL

*hands up* I quit

[starr4law]

Of course, now we are both dying of curiosity I am going to have to make a few phone calls just to satisfy my OWN self!

I do know of a case personally where the filer had lived in AZ for 5 yrs prior to filing, then moved to WI and after 91 days could use Federal exemptions - not because they were available in WI, but rather because she wasn't a CURRENT resident of AZ she was precluded from using AZ state exemptions (AZ is a Fed opt out state). I assumed because OR reads just like AZ regarding residency that the same would apply . . .

Crazy!!

[Pandora]

let me know when you do LOL

[mrskal]

I will be waiting to hear this one too! I am hoping mine will be fine just filing in Illinois where I currently live. There may be an issue with my hubby living in Florida, but the lawyer was going to talk to a trustee about it and find out. All of his stuff still has Illinois on it and he just gives a guy a couple hundred a month toward rent, no lease or anything. Only his pay stub has a Florida address. We shall see.

[justfiveofus]

Thanks everyone! I've read through this and my hubby and I think that we should use the Oregon exemptions. However, I believe that I'm going to spend part of tomorrow contacting attorney's in Oregon to try and get the best answer. I just don't want to mess this up as our retirement is really the only thing of significant value that we have.

[justfiveofus]

Scratch that.

http://exemptionsexpress.com/How.html

This is how you determine which states rules apply to you. For us, we'll use Oregon's. This webiste is exactly what I was looking for and breaks it down into something a tad simpler than other websites. It didn't make my brain shut down after 3 sentences. Pandora great website! THANK YOU! MrsKal you should check it out.

[mrskal]

Yes, I have looked at that one, and in my case the question is if my husband can file here in Illinois or has to in Florida. Either way we use Illinois exemptions.