Most BK "friendly" state

[AMISLANDER]

You really think FL is bk friendly??? All it has is an unlimited homestead and for someone like me with no equity in my homestead, I got screwed. 1K for car and 1K for personal property. To me, that STINKS!

And if you don't have a homestead you only get 4K personal property in lieu of the homestead and that only changed recently. Used to be you only got the 1K!

I almost got screwed with the $1K on the vehicle...as I owned my vehicle...only thing that saved me was that my mom was on title prior to my filing a few years back....they kept my tax refund for 2005, when I filed & made me pay $1,500 to keep the vehicle....not too shabby (2000 4Runner SRV)

[DivorceRuinedMe]

Florida's Tenancy by the Entireties laws make FL a goldmine for a married person filing BK singly. The property that the married person owns with the spouse as tenancy by the entireties can't be touched.

I asked my lawyer about this because I am in this situation and she told me there is no case law on this yet. I'm not saying what you say is not true (b/c that's how I interpret it as well) but I did bring it up to my atty and she was like, gonna have to look into that one.

[keepmine]

There is caselaw.

http://www.bankruptcyorlando.com/2007/03/new_residents_i.html#more

Plus, 2 more.


2 more recent Fl. rulings on this issue.


In re Schwarz,(Bankr. SD Fla. Olson

The January 30, 2007 case of In re Schwarz, (Bankr. SD Fla. Olson) held certain real property as exempt from administration in the estate under 11 USC 522 (b)(3)(B) which allows for the exemption of any interest in property which the debtor held as tenants by the entireties to the extent that it is exempt from process under applicable non-bankruptcy law.

In this case, the debtor was unable to exempt his real property under the Florida homestead provision of Art. X Section 4 (a)(1) of the Florida Constitution as the new provisions of BAPCPA of 11 USC 522 (b)(3) required the debtor to use the Maryland exemptions as the debtor had not been a domiciliary of Florida for the entire 730 day period prior to filing of the bankruptcy case. The parties agreed that Maryland does not provide for a specific homestead exemption. Nonetheless, the debtor was able to exempt his entire interest in the real property in Florida as he held it as tenants by the entireties on the date of filing pursuant to section 522 (b)(3)(B).

It is significant that the Court looked to Florida tenants by the entireties law as the "applicable non-bankruptcy law" for such determination and not Maryland law.

Property held by a debtor in a tenancy by the entireties is exempt from the claims of individual creditors in bankruptcy under Florida common law with certain exceptions for joint creditors or fraudulent conveyances. In this case, there were no joint creditors nor any indication of a fraudulent conveyance.

Interestingly enough, section 522 (b)(3)(B) does not require the debtor to be residing in the property on the date of filing, but only requires that the debtor hold an interest in the property as a tenant by the entireties immediately before the commencement of the case. In this case, the debtor did not move into the property until after the filing of the case but held an interest in the property as a tenant by the entireties before the commencement of the case.

In Buonopane B.R M.D.Fla, 2007

Judge Williamson of the Middle District of Florida issued his decision in the case of In Buonopane B.R M.D.Fla, 2007 On January 26, 2007 in which he held that the cap imposed by BAPCPA on the state homestead exemption that a debtor can claim in residential property acquired within 1,215 days of the petition date applied only to the Florida homestead exemption that the debtor could claim under 522(b)(3)(A) and not to the separate entireties exemption available under section 522(b)(3)(B). Section 522(b)(3)(B) provides for the exemption of property held as a tenant by the entireties. This decision is in accord with Judge Olson's recent decision in the Southern District of Florida in the case of In re Schwarz of the S.D. Fla.).The Court stated while its ruling would appear to provide a way for a debtor to "end run" the $125,000 cap contained in section 522(p), that its ruling is consistent with the legislative history of section 522(p)(1) which was directed to close the "mansion loophole" and not against a state's common law on tenancy by the entireties..

All of the case law on "tenanct by the entireties" include inherently to only ONE maried debotor filing "married but not filing solo."

This strategy is worthless if both spouses have substantial unsecured debt in both names.

--------------------------------------------------------------------------------

[DivorceRuinedMe]

There is caselaw.

http://www.bankruptcyorlando.com/2007/03/new_residents_i.html#more

Plus, 2 more.


2 more recent Fl. rulings on this issue.


In re Schwarz,(Bankr. SD Fla. Olson

The January 30, 2007 case of In re Schwarz, (Bankr. SD Fla. Olson) held certain real property as exempt from administration in the estate under 11 USC 522 (b)(3)(B) which allows for the exemption of any interest in property which the debtor held as tenants by the entireties to the extent that it is exempt from process under applicable non-bankruptcy law.

In this case, the debtor was unable to exempt his real property under the Florida homestead provision of Art. X Section 4 (a)(1) of the Florida Constitution as the new provisions of BAPCPA of 11 USC 522 (b)(3) required the debtor to use the Maryland exemptions as the debtor had not been a domiciliary of Florida for the entire 730 day period prior to filing of the bankruptcy case. The parties agreed that Maryland does not provide for a specific homestead exemption. Nonetheless, the debtor was able to exempt his entire interest in the real property in Florida as he held it as tenants by the entireties on the date of filing pursuant to section 522 (b)(3)(B).

It is significant that the Court looked to Florida tenants by the entireties law as the "applicable non-bankruptcy law" for such determination and not Maryland law.

Property held by a debtor in a tenancy by the entireties is exempt from the claims of individual creditors in bankruptcy under Florida common law with certain exceptions for joint creditors or fraudulent conveyances. In this case, there were no joint creditors nor any indication of a fraudulent conveyance.

Interestingly enough, section 522 (b)(3)(B) does not require the debtor to be residing in the property on the date of filing, but only requires that the debtor hold an interest in the property as a tenant by the entireties immediately before the commencement of the case. In this case, the debtor did not move into the property until after the filing of the case but held an interest in the property as a tenant by the entireties before the commencement of the case.

In Buonopane B.R M.D.Fla, 2007

Judge Williamson of the Middle District of Florida issued his decision in the case of In Buonopane B.R M.D.Fla, 2007 On January 26, 2007 in which he held that the cap imposed by BAPCPA on the state homestead exemption that a debtor can claim in residential property acquired within 1,215 days of the petition date applied only to the Florida homestead exemption that the debtor could claim under 522(b)(3)(A) and not to the separate entireties exemption available under section 522(b)(3)(B). Section 522(b)(3)(B) provides for the exemption of property held as a tenant by the entireties. This decision is in accord with Judge Olson's recent decision in the Southern District of Florida in the case of In re Schwarz of the S.D. Fla.).The Court stated while its ruling would appear to provide a way for a debtor to "end run" the $125,000 cap contained in section 522(p), that its ruling is consistent with the legislative history of section 522(p)(1) which was directed to close the "mansion loophole" and not against a state's common law on tenancy by the entireties..

All of the case law on "tenanct by the entireties" include inherently to only ONE maried debotor filing "married but not filing solo."

This strategy is worthless if both spouses have substantial unsecured debt in both names.

--------------------------------------------------------------------------------

I LOVE YOU! I'm forwarding this to my attorney now. Thank you, thank you, Thank you!!!!!!!!!!!!

[ann1073]

http://bankruptcy.lawyers.com/consum...our-State.html

Thank you - this is exactly what I've been looking for!

ann

[Rover]

I asked my lawyer about this because I am in this situation and she told me there is no case law on this yet.

Ouch! If it's not too late, you might want to consider retaining a more experienced lawyer. There's significant case law on Florida's tenancy by the entireties, as pointed out above.

It's my understanding that in Florida tenancy by the entireties applies not only to real property but also to personal property of those who are married.

Here's a tip. Up until about two years ago, it wasn't possible for automobiles to be titled as a tenancy by the entireties. But the Florida Department of Highway Safety and Motor Vehicles added a "Tenancy By the Entirety" option to the Form 82040 (Application for Certificate of Title..."). I contacted the Department to find out how one changed auto titles to Tenancy By the Entirety. Basically, you have to transfer the title to you and your spouse as though there was a sale to yourself. Then, go to your local tax collector's office with the title and Form 82040 with the "AND" box and "Tenancy By the Entirety" box checked.

When I did this recently, the lady who handled my transfer at the tax collector's office was totally unfamiliar with the issue even though she had worked for the tax collector for 25 years.

In any event, with your autos titled as Tenancy By the Entirety, the autos are exempt if one owner files BK.

In Florida, the Tenancy By the Entirety rules apply to determining exempt assets for judgment collection as well as BK. Also, Florida law presumes that ownership of assets in the case of a married couple is in the form of a tenancy by the entireties. The reason autos are an issue is that autos are one of the few assets that has a specific title designation.

I don't recall just where I saw this, but several months ago, I read somewhere on the net that the Florida Tenancy By the Entirety rules are frequently overlooked by Florida lawyers handling bankruptcy. Perhaps, it's because it's not common for a married person to file BK singly.

I would be interested in hearing what your lawyer's research reveals. When I started doing research several years ago about BK in Florida, the tenancy by the entireties issue was one of the first things I found. So, it's a little disturbing that a BK lawyer doesn't know about it.

[Rover]

Here are more links to Florida T of E references:

http://floridaassetprotection.blogs....y_by_enti.html

http://jbublick.blogspot.com/2007/11...-of-in-re.html

http://www.clarkskatoff.com/asset-protection.php

http://www.alperlaw.com/joint_ownership.html

http://www.franklindebtrelief.com/te...-entirety.html

http://www.solomonlawoffice.com/floridahomestead.jsp

http://www.************************/2007/08/10/bankruptcy-and-separation-or-divorce/

BTW, the last link is where I saw the reference to too many lawyers missing the T of E exemption.

[DivorceRuinedMe]

Well, this is what I got back from my lawyer and after doing my own research, it's a moot point for me anyway because our house was purchased BEFORE we got married (one month before!). This means that I can't claim t by e. ARGH. But in any event, I don't have the money to pay her for a trial or anything so it's all for naught in my situation. I'm not upset about it at all. I had no idea at the time I bought my house that I would be filing bankruptcy so it's not like I could have planned it.

This is from my attorney:

"I did research this and spoke with other trustees. It appears you have to claim the exemption for the tenancy by entireties house. They are not allowing people to not claim homestead just to get to the 4k. This would likely apply no matter the situation, tenancy by the entireties or if no equity and no homestead protection needed. While I haven't found a case that specifically has held this in the Middle District of Florida with respect to tenancy by the entireties, the issue is coming up a lot in houses that do not have any equity. Homeowners have tried to not use the homestead exemption, and get the 4k. To force the issue, the trustee's office is taking the position that if you are not claiming homestead then you owe them rent for use of the property b/c you haven't claimed an exemption. However, I haven't located a case on point. But none of the trustees or debtors' attorneys I spoke to (uninvolved in our case) are doing this (keeping 4k exemption when keeping house).

Since there is no case on point, it is possible to try this, but I don't realistically expect our chances are any higher than 50/50 (probably much less), and the extra attorney's fees would likely exceed $2,500 anyway (exemption litigation is separate from the chapter 7 flat fee, and will have discovery, depositions possibly and a short trial or legal briefs to the judge with the relevant case law and argument)."

[CindyLou]

Texas is the most friendly state for "doing nothing".....you can wait as long as you want to file because they really can't do much to you. As far as BK friendly, I would say its pretty good, but like HHM said, its more debtor friendly than BK friendly.

[Rover]

Well, this is what I got back from my lawyer and after doing my own research, it's a moot point for me anyway because our house was purchased BEFORE we got married (one month before!). This means that I can't claim t by e.

If you are in Florida, why don't you maintain that the personal property you want to protect is owned jointly by you and your spouse as tenants by the entireties? In that case, your personal property exemption would be unlimited.

Check out the links I provided above.

Choosing a homestead exemption vs the $4,000 exemption isn't even relevant to your situation.

[DivorceRuinedMe]

If you are in Florida, why don't you maintain that the personal property you want to protect is owned jointly by you and your spouse as tenants by the entireties? In that case, your personal property exemption would be unlimited.

I can't claim T by E because in order to claim T by E six separate characteristics have to be met (I read that in the researching that I did myself). The final characteristic is that the homestead would have had to have been purchased WHILE we were married. In my case it wasn't. So I can't claim T by E.

It came out of this link that I also found myself that you posted above: See the last characteristic - that's where I don't qualify.

http://www.clarkskatoff.com/asset-protection.php

"Tenancy by the Entireties Overview

Tenancy by the entireties has been an excellent form of asset protection for many years. Florida broadly recognizes the ability of spouses to hold title to real property and financial accounts as tenants by the entireties. Property held as a tenancy by the entireties must possess six characteristics: (1) unity of possession (joint ownership and control); (2) unity of interest (the interests must be identical); (3) unity of title (the interests must have originated in the same instrument); (4) unity of time (the interests must have commenced simultaneously); (5) survivorship; and (6) unity of marriage (the parties must be married at the time the property became titled in their joint names). Beal Bank, SSB v. Almand and Associates, Etc., 780 So2d. 45 (Fla. 2001)."

[Rover]

I can't claim T by E because in order to claim T by E six separate characteristics have to be met

I'm not talking about claiming T by E for your real property (your house).

I'm talking about using it for your personal property. Isn't exempting your personal property your objective or am I missing something?

[DivorceRuinedMe]

I'm not talking about claiming T by E for your real property (your house).

I'm talking about using it for your personal property. Isn't exempting your personal property your objective or am I missing something?

Nothing I own is jointly titled in my husband's name. All my property is solely mine (apart from the tax return which she can only take a portion of anyway b/c it is a joint return). So I guess I'm missing what personal property that I could claim as T by E?

The only thing I wanted to be able to protect was my engagement ring (which the trustee took and had appraised and it's value is only $600). All other personal property that I have was mine only and came in under the 1K personal property exemption limit for Florida. The ring and the tax return were fair game though b/c I had no exemptions left. That's why I was trying to use the 4K exemption limit with the T by E for my homestead. That way I would have been able to protect all my assets. Does that make sense?

[Rover]

DivorceRuinedMe,

OK. I see.

I guess I was assuming that you had more personal property and could still claim it as T by E property. But it sounds like it's too late to do that anyway.