Florida homestead exemption

[philipjs]

I'm about to file Chapter 7, but at the last minute my attorney said I will more than likely lose my home as I purchased it in the prior 40 months (so the unlimited Florida equity exemption does not apply).

However, my reading of the Florida regulations is that if I bought a home in the 40 months prior to filing then I can exempt up to $146,450 in equity. I have about $150,000 in equity in the house. Am I wrong? I can't get the attorney to respond to me, and I'm concerned that HE may be wrong!

I have been FL resident for 5 years.

[AngelinaCat]

It may not be the Homestead Exemption that the attorney is referring to, but the mortgage. If you are truly homesteaded in Florida, no one can kick you out. But if you are behind on the mortgage, and are in danger of foreclosure, you might have trouble there.

Have you been filing your homestead exemption every year? After a certain period of time, it becomes automatic...

Welcome to the forum, BTW...

[philipjs]

No I'm current on the mortgage and have been keeping current per the attorney's advice a couple of months ago. I have filed homestead exemptions for 2011 and 2012 (I believe it's automatic after filing the first year). I bought the house for $450k, I owe $295k on the mortgage so, assuming house is valued at where I bought it (unlikely, but let's just assume), then by my limited mathematical abilities I have about $155k in equity.

Here's a quote from attorney email yesterday: "Ch 7 Rule: If you own you hose LESS than four (4) years, any equity is not protected ("Exempt"). Therefore, as you have only owned for two (2) years, you would need to come up with somewhere between $100,000-$150,000 to keep the house in Bankruptcy. To have the house's equity fully exempt (protected) you need to have owned it more than 3.3 years, (1215 days)".

I then enquired about the the $146k+ exemption if you've owned a home less than 1,215 days, and he responded: "You can't claim that $146,450 exemption if you have owned the homestead property less than 3.3 years (1215 days)". This seems to run counter to every bit of research I've done....

I'm so frustrated!!! THanks for the welcome btw!

[AngelinaCat]

I did a search through the forum concerning Florida Homestead exemption and found the following threads:

http://www.bkforum.com/search.php?searchid=1553301

I have looked at a couple, but not all of them...

[justbroke]

I think that the attorney misread the statute. What happens is that the Florida Unlimited homestead exemption is valid for any homestead. However, Federal Bankruptcy law limits the amount to the $146K.

I would certainly advise the attorney that they still need to claim the property under the Florida Constitutional unlimited homestead exemption and for the attorney to read 11 USC 522(p).

..., a debtor may not exempt any amount of interest that was acquired by the debtor during the 1215-day period preceding the date of the filing of the petition that exceeds in the aggregate ($146,450)...

Keyword is "that exceeds". It does not read that they can't claim the homestead exemptions. (The $146,450 is the current value as the value adjusts every 3 years based on the Statute. It was originally $125,000 when the statute was created in 2005.)