Vehicle exemption/valuation - Tampa division/Middle District Florida

[ferretlady]

I am looking around for local lawyers to meet with for advice, but I thought I'd get your thoughts on this, as I see that some of you have had dealings here in the Middle District of Florida.

The Ch. 7 checklist for the Tampa division specifically states that they use NADA Retail value on cars. As such, my 2005 Taurus w/ 154k miles shows a 'clean retail value' of $3950. As Florida only allows $1000 vehicle exemption, that leaves right at $3k non-exempt. BUT - the car does need a good bit of repairs. Earlier this year, my shop gave me a write-up of what it needed & it came to something just over $2k actual repair work (they had some preventative-maintenance type things on the estimate too - but the actual 'repairs' are roughly that amount) Largest item was major A/C work, but a lot of other smaller issues.

Do the trustess (in Tampa specifically) usually allow the vehicle value to be adjusted for repairs? I would obviously get a current up-to-date written estimate to back up my adjusted figures, but it should be the same, as I haven't been able to fix anything on the car. I know things can vary from one trustee to the next - but ?? Or are they more likely to just stick to the straight NADA retail value, regardless of condition?

If I lived in the city, I'd be half-tempted to just let them have the car, take the $1k for it, and save up money for a while to get another car. But there is no public transportation where I live, and I'm a widow, and have no family or friends around who could take me to get groceries & other necessities - so I need to try to hang onto the car if possible. If they DO allow for the needed repairs, I could hopefully work out a payment plan for the remaining small non-exempt part -- but I can't pay $3k non-exempt (nor do I think it would be worth it to pay that much for the car)

Again - I will hopefully be getting a few consultations with lawyers soon - but this one thing just keeps eating away at me, and I'd appreciate hearing your thoughts on the matter! Thanks in advance for any advice!

[justbroke]

It can be adjusted and you just provide documentation to the Trustee. They don't want to deal with a vehicle that they can't really sell. When I have done this, I have always listed the NADA value and then explained the defects in the vehicle (needs new tires, 120K miles, engine check light is on, major mechanical work needed, etc.). I have never been questioned on the value. I would, however, be prepared to demonstrate this to the Trustee by way of an appraisal or estimate to repair.

In a Chapter 7, the Trustee doesn't want to waste their time on things that won't retrieve any money. Well, at least not the smart Trustees.

Also please realize that you may have extra left over from any unused Florida Homestead Exemption (222.25(4) I think) if you're not claiming or receiving the benefit of that exemption. It's worth $4K. Ask your attorney about protecting all your assets.

[ferretlady]

Thank you so much, Justbroke! You are such a help to folks here - I've been reading, reading & more reading - this forum is amazing. (I had my fingers crossed that *you* would answer my post!

I do own my (older 1984) mobile home, so the $4k wildcard might be off-limits to me. But I do not own any land - the home is in a park & I pay monthly lot rent. I have read on several FL attorney's sites (including one who is also a ch. 13 Trustee in Orlando) that a mobile home on a rented lot can be claimed exempt solely under the *statutory* homestead exemption that specifically applies to mobile home on leased lots. And since the *constitutional* homestead exemption is not claimed, that one can then use the $4k wildcard.

In re Lisowski and in re Heckman are two cases cited, where a trustee objected to the exemptions, and in both cases, the judges ruled that the statutory exemption was separate from the constitutional exemption - and that the debtors were legally allowed to use § 222.05 alone to exempt their mobile home (since it was on leased lot), and were still entitled to use § 222.25(4), as they were not claiming the constitutional homestead exemption .

Whenever I can get a consultation with an attorney, I'm going to ask them their thoughts on this also.

I'm scared stiff, after reading some of the horror stories here, about the trustees here in the Middle District. I don't have much of anything worth protecting - just my old home & car, and a handful of meaningful items that should be covered with the $1k personal property exemption, I may go over a little bit, because I still have both of my late husband's power wheelchairs, and I'd really hate to lose them, just because they were his. Neither are operational - but even so, they'd still be worth a couple hundred each, and if I do exempt them, I might run over just a little bit with other items - I don't know yet. I haven't finished writing up a detailed complete list just yet.

I just want to get through this without creating more stress than is already there - so IF they will most likely allow the vehicle value to be adjusted for the repairs, maybe that would be the easiest way to go, even if I do have to pay a little bit back on the car. I'd *like* to go the § 222.05 'mobile home exemption' route, as that way, there would be no problem exempting the car entirely, ensuring I keep the wheelchairs, etc -- but I'd be afraid of the trustee objecting & it getting dragged into court & ??.

Unfortunately - my financial situation simply will not allow me to hire an attorney so I'll be filing pro se I'm going to have to apply for the payment plan on the filing fee as it is. (I actually could qualify for the fee waiver as I'm under the 150% poverty level) - but it seems as if there are more hearings & stuff involved in getting the waiver, than if you do the payment plan? Once the debt is off my back, I can manage to pay the filing fee over the 120 day allotted time. I know - everyone says they can't afford an attorney - but I truly cannot. And my county doesn't seem to have any legal aid resources available that will assist in bankruptcy - the agencies here that provide any legal aid are very limited in what type of cases they consider assisting with.

But I see that the Tampa Bar has volunteer legal assistance at the courthouse on certain days, to give pro se filers some help - so I definitely plan on availing myself of that! I'm thinking, I'll get everything in order, then go meet with one of the people there & have them look over everything, to make sure it's all in order, that I haven't missed something, etc. I'm very thankful that we do have that resource available to us! (And I will see if I can find a few 'free consultations' with attorneys also)

Ugh - sorry to ramble - so stressed out these days, I babble when I'm stressed. THANK YOU again for your reply!!!!

It can be adjusted and you just provide documentation to the Trustee. They don't want to deal with a vehicle that they can't really sell. When I have done this, I have always listed the NADA value and then explained the defects in the vehicle (needs new tires, 120K miles, engine check light is on, major mechanical work needed, etc.). I have never been questioned on the value. I would, however, be prepared to demonstrate this to the Trustee by way of an appraisal or estimate to repair.

In a Chapter 7, the Trustee doesn't want to waste their time on things that won't retrieve any money. Well, at least not the smart Trustees.

Also please realize that you may have extra left over from any unused Florida Homestead Exemption (222.25(4) I think) if you're not claiming or receiving the benefit of that exemption. It's worth $4K. Ask your attorney about protecting all your assets.

[justbroke]

The Middle District Trustees have calmed down a bit after they were beat several times on the "statutory" versus the "constitutional" exemptions. In fact, I believe it was the 3rd District Court of Appeals for Florida that weighed in and TOLD the bankruptcy court that the intention of the statute and constitutional exemptions was being applied incorrectly in bankruptcy cases in Florida. Slap in the face.

The reason Middle District was so tough was that you only had a $1K wildcard and a $1K vehicle exemption and if you "owned" a home (or otherwise "claimed" the constitutional exemption) you could not get the $4K wildcard even if you didn't benefit from that exemption. So the 3DCA or the Florida Supreme Court weighed in and set the record straight.

Prior to this, it was quite easy to see that a person owned more than $1K worth of furnishings and clothing so the some Trustees would always send an appraiser to try to get money for the estate (while earning commission of course).

So glad that Florida stepped up and showed the Bankruptcy Court the light.

[ferretlady]

OMG OMG OMG --- I'm sitting here truly in tears. I hunted & hunted & hunted, to try to find more about that -- but you're saying that (probably) - I *COULD* claim the specific statutory exemption for my mobile home (since it is on leased lot), and also take the wildcard, and (probably-possibly), the trustee wouldn't automatically object & pitch a fit about it????? I kept looking for more recent rulings on that, since the Lisowski & Heckman cases were a few years back, & I hadn't been able to find anything else - so I was afraid if I even so much as *tried* to claim both exemptions, the trustee would object immediately.....

OMG, I can't see straight for the tears in my eyes.... if you were here in person, I'd just HUG you right now!!!!!!! THANK YOU!!!!!! (I know, there are no guarantees that a trustee might not try to object anyway - but you've given me a ray of hope that possibly he/she won't, or that if he does, that there's a decent chance of the judge ruling in my favor anyway!)

OMG THANK YOU THANK YOU THANK YOU! And thank you again, on behalf of everyone - for ALL you do here!!!!!

The Middle District Trustees have calmed down a bit after they were beat several times on the "statutory" versus the "constitutional" exemptions. In fact, I believe it was the 3rd District Court of Appeals for Florida that weighed in and TOLD the bankruptcy court that the intention of the statute and constitutional exemptions was being applied incorrectly in bankruptcy cases in Florida. Slap in the face.

The reason Middle District was so tough was that you only had a $1K wildcard and a $1K vehicle exemption and if you "owned" a home (or otherwise "claimed" the constitutional exemption) you could not get the $4K wildcard even if you didn't benefit from that exemption. So the 3DCA or the Florida Supreme Court weighed in and set the record straight.

Prior to this, it was quite easy to see that a person owned more than $1K worth of furnishings and clothing so the some Trustees would always send an appraiser to try to get money for the estate (while earning commission of course).

So glad that Florida stepped up and showed the Bankruptcy Court the light.

[justbroke]

I would go to one of the Pro Bono clinics at the courthouse and pose these questions. They will know more about the current state of Trustee objections in cases that claim the statutory wildcard (unused homestead exemption).

[ferretlady]

Thanks again, Justbroke! I hope to get over there sometime soon & will see what they say. I'm going to get a written repair estimate on my car, regardless which way I go with the exemption for the mobile home, and hopefully that will help, even if they don't allow me to use the combined § 222.05 and § 222.25(4) exemptions.

LOL - I wonder, would a trustee really try to take my mobile home, if I didn't claim either of the homestead exemptions on it? It's 30 years old, and so one cannot get homeowners insurance on it - it cannot be moved, it's in an age-restricted community, and it's in need of a some repairs and needs a LOT of interior cosmetic work. There's no way in hades that anyone could sell it for much of anything right now, before putting quite a bit of work into it. (Ha, if it were in good selling condition, I'd sell it myself, use the money to pay debts & get an apartment somewhere...) But I wouldn't want to take the risk of not claiming exemption on it - with my luck, I'd get the worst trustee possible, who'd come snatch it just for whatever salvage materials he could get out of it.

I'll get to the clinic as soon as I'm able & see what they say.

I've been *trying* to calm down a little bit (whew, that's so hard to do!). I guess, if I were to go in there, with a repair estimate on my car, AND having claimed the home under the statutory mobile home exemption, along with using the wildcard (as was done in the Lisowski & Heckman cases) --- worst that could happen would be the trustee objecting, and if a judge sustained his objection, then I'd have to change my exemptions? As long as they discount the value of the car, for the repairs, then probably there would only be a small amount of equity left over & as long as they let me make payments, I could do that.

*weak grin* I'm just keep trying to convince myself that this isn't the absolute end of the world, that I'll get through it somehow.... I just don't know how I'd get along though, if I DO lose the car. Maybe someday, the bus system will work it's way out here - but right now, in my location, a vehicle is a sheer necessity, unless one wants to order groceries exclusively from Amazon! LOL!

Thanks so much for your replies!!!

[justbroke]

It isn't the end of the world. The Trustee "might" even abandon the mobile home (have no "interest" in it and claim it's worthless to the Estate), but I wonder what kind of "pressure" a Trustee might place on a Pro Se debtor. (I mean to say that "pressure" is take advantage of.)

Personally I would rely on Lisoswki and if you have trouble at the Pro Se clinic or with the Trustee, just keep saying that "Lisoswski" says otherwise. (And, Lisoswki was opined by former Chief Judge Glenn who was the predecessor to Chief Judge Jenneman. Their opinions are well received by the other judges across the Middle District of Florida.)

[ferretlady]

UPDATE!! Well, I was still so scared about everything, and kept trying to tell myself that *maybe* I could avoid bankruptcy... but finally realized that it is the only logical thing for me to do, as I kept paying & paying, but never really getting ahead on my debt - and letting so many necessary things slide (home repairs, doctor visits, etc) while handing over all my $$ to the credit card companies. I just need to learn a hard lesson from this, and definitely live cash-only from here on out!

SO - today, I *finally* had an appointment with a local BK attorney, who had lots of good reviews. My biggest concern was saving my car, as mentioned above.

Well, before I even had the chance to ask him specifically about the situation with a mobile home on a rented lot -- he brought it up himself, that I would be able to take the wildcard exemption, that because it is on rented land, the mobile home falls under the *statutory* exemption only, and is definitely NOT counted under the constitutional homestead exemption!! (And therefore, since I'm NOT claiming the constitutional homestead exemption, I can take the wildcard)

So - that eased my biggest fears! With that additional $4k exemption, I should have no problem in protecting my car & personal property that I want to keep! He said that is in *addition* to the $1k vehicle & $1k personal property exemptions, so that I have $6k altogether to work with. That is more than enough!

I had decided that I would go ahead & get an attorney to handle this for me. I could probably do it myself - but I'm so stressed out these days, I'd rather not take the chance of making mistakes & making a mess of things. I know it's advisable to see several attorneys, but there are only two I could find in my immediate area & due to PTSD from a bad car accident, it's really tough for me to drive into neighboring "big cities" with the heavier traffic. (Just going to Tampa that *one* time for the 341 meeting will be pure hell!)

I was VERY impressed with this guy - he answered half of my questions before I even asked them, he was both very professional and very friendly & personable at the same time. He spent quite a bit of extra time with me, way over the time limit of what the "free consultation" was supposed to be. He'll work with me on paying the fee, in whatever time frame I need. No "rigid" payment plan, just whatever I can manage, when I can manage. And his fee is just a little bit less than the other local attorney also) I just feel really good about him, so I'm going to use him.

Whew --- so.... later this week, the first due dates on some cards will hit & I'll be doing the unthinkable, by not paying them. Ouch - that's a toughie - I have never deliberately "ignored" a bill before in my life! But there's no way I can pay them & even begin to set aside money for an attorney. I'll just have to suck up the guilt & learn to get over it!

Wow -- so I've finally bit the bullet & actually made the decision & took action on it, after waffling on it again for several months. Now - for the nasty months of phone calls - but I do have Google Voice set up, so hopefully that will help. I feel rotten about doing this - but at the same time, I do feel a small measure of relief, that this is the first little step in getting my life back on track (hopefully!!!) And a *HUGE* relief at finding out that I can definitely protect my car after all!!! That durn $1k vehicle exemption - that's a stinker! So many times, I've hated the fact that my home is in a "park" -- but for once, it's turned out to be in my benefit!!

Even if I decided against going pro se --- **THANK YOU** for all the advice!!!

[justbroke]

I am glad to be reading your update and finding that you have found an attorney that you like. I hope that one day this is all behind you and you have your fresh start. Best Wishes!

[AngelinaCat]

Congratulations on taking that HUGE first step. It marks the beginning of your journey toward Financial Freedom!

[ferretlady]

Thank you both!! These next months are going to be tough - but at least I know there's a light at the end of the tunnel - somewhere on down the road... I'm glad to finally get moving with it - though still so ashamed of myself for getting in this position to start with... But I'll make it through it...

[df04527]

Congrats! The day you file the relief will set in! Middle district is where my dd filed also in 2010. No problems for her. Good luck to you. Very glad to hear you will use an attorney too!