91 days residency

[matthewcl]

Do you have to live in your current state for 91 days or 180 days before you can file. I know I need to use the exemptions from the state I previously resided in(arizona), but I don't know how long I need to wait and file in my new state(california).

Thanks

[AngelinaCatHub]

Usually, it is six months and you have to file a document of residency as well. 'Hub

Edit: Google your state plus residency.

[HHM]

It's 91 days.

The code reads, where the debtor has resided the longer of the previous 180 days. So, that means 91 days.

[justbroke]

It's 91 days.

The code reads, where the debtor has resided the longer of the previous 180 days. So, that means 91 days.

I always wondered why The Code and other Statutes always read "the longer of the previous 180 days", when they can write either "the majority of the time" or "91 days". LOL

This is why we have to hire lawyers!

It actually comes from 28 USC 1408 on Venue for a Bankruptcy...

28 USC 1408... Venue...

... in which the domicile, residence, principal place of business in the United States, or principal assets in the United States, of the person or entity that is the subject of such case have been located for the one hundred and eighty days immediately preceding such commencement, or for a longer portion of such one-hundred-and-eighty-day period than the domicile, residence, or principal place of business, in the United States, or principal assets in the United States, of such person were located in any other district;

[AngelinaCatHub]

It's 91 days.

The code reads, where the debtor has resided the longer of the previous 180 days. So, that means 91 days.

WELL, again I learn. Thanx. 'Hub

[justbroke]

WELL, again I learn. Thanx. 'Hub

Actually, now that you say that... the answer really is that the Code (28 USC 1408) only controls the Venue, not whether or not you can file. (Notice that this is not in Title 11 at all, where the Bankruptcy Code lives. This little nugget is in Title 28 which covers Judiciary and Judicial Procedure.)

So, to make it even clearer... the Code (28 USC 1408) only reads that the Venue is determined by where you have live in the last 180 days. This part of the Code has neither anything to do with exemptions, nor disallowing one to file. It only goes to Venue.

If you just moved to Florida, from California, and only lived in Florida for 30 days, you could

[AngelinaCatHub]

Actually, now that you say that... the answer really is that the Code (28 USC 1408) only controls the Venue, not whether or not you can file. (Notice that this is not in Title 11 at all, where the Bankruptcy Code lives. This little nugget is in Title 28 which covers Judiciary and Judicial Procedure.)

So, to make it even clearer... the Code (28 USC 1408) only reads that the Venue is determined by where you have live in the last 180 days. This part of the Code has neither anything to do with exemptions, nor disallowing one to file. It only goes to Venue.

If you just moved to Florida, from California, and only lived in Florida for 30 days, you could file in California.

You mean.... I am right??? Gee, according to Mrs. this will be a first. 'Hub

[justbroke]

You mean.... I am right??? Gee, according to Mrs. this will be a first. 'Hub

Umm... I mean you're wrong, but for the wrong reason. (Hi Mrs. Cat!)

[HHM]

It gets even more complicated if you start factoring in which exemptions to apply if the person has moved around a lot.

If you want a real mindbneder, read section 522(b)(3)(A)

(3) Property listed in this paragraph is--
(A) subject to subsections (o) and (p), any property that is exempt under Federal law, other than subsection (d) of this section, or State or local law that is applicable on the date of the filing of the petition at the place in which the debtor's domicile has been located for the 730 days immediately preceding the date of the filing of the petition or if the debtor's domicile has not been located at a single State for such 730-day period, the place in which the debtor's domicile was located for 180 days immediately preceding the 730-day period or for a longer portion of such 180-day period than in any other place;

I had one attorney tell me of client that he had to use exemptions from a state the debtor lived in 5 years and 4 states ago. This was the provision put in to try and circumvent 100% homestead exemptions like in Florida.

[justbroke]

If you want a real mindbneder, read section 522(b)(3)(A)

I still don't understand the real purpose of that section other than to confuse. They (Congress) could have really just said use the current State you live in or use the Federal Exemptions. But then, that may penalize a person who just moved from a State with great Exemptions... so use the...

Now I can see how messy it gets. It's the Congresscritters trying to please their constituency, but really just making it worse.

This was the provision put in to circumvent 100% homestead exemptions like in Florida.

Ooops, so I was wrong on the Congresscritters, oh well.

I guess the bottom line is... don't move.

[HHM]

I agree, these sorts of provisions are rediculous. After all, for the average BK filer, who "really" would move just to file BK in a more advantagous state. Forum shopping in BK is one of those things that could "potentially" be abused, but in reality, rarely is.

Just like with most of the 2005 law changes, the changes were based on "hypothetical" problems in the system, not real ones.

[bankjob]

does sole-proprietorship location trump residency?

does anyone have the same issue as I do? Namely, my sole-proprietorship is registered in Illinois since 2001. I too lived in Illinois all my life except for 2 years between aug 07 and oct 09. Now i'm back in chicago because i ran out of money and thought it necessary to file chpt 7 in the state that the business is registered in. Was i wrong about that? Or do i just have to wait a full 91 days of living in chicago before i can file in illinois. The alternative is to file in California because i've only been gone 14 days so the law sees me as still a resident of CA. I've been asking online and see this is a real gray area. I even called an attorney just to ask and he said hmmmmm, let me get back to you on that, i need to double check.

thanks for sharing your knowledge...

[justbroke]

does anyone have the same issue as I do? Namely, my sole-proprietorship is registered in Illinois since 2001. I too lived in Illinois all my life except for 2 years between aug 07 and oct 09. Now i'm back in chicago because i ran out of money and thought it necessary to file chpt 7 in the state that the business is registered in. Was i wrong about that? Or do i just have to wait a full 91 days of living in chicago before i can file in illinois. The alternative is to file in California because i've only been gone 14 days so the law sees me as still a resident of CA. I've been asking online and see this is a real gray area. I even called an attorney just to ask and he said hmmmmm, let me get back to you on that, i need to double check.

If you read the Code (Title 28 and Title 11), you get to file in the venue in which you have your principal residence or principal place of business! The easy "test" is to just answer the question, where are the majority of your assets!

The only one that usually challenges Venue is the Trustee. Since you lived in Illinois predominantly and had your principal place of business still there... it may be possible to use Illinois as your venue without waiting.

For principal place of business though, I would think that you'd need to meet the "non-consumer" test in order to use the business locale as the venue.

[bankjob]

non-consumer test?

thanks for your reply. Could you elaborate on what is the non-consumer test you mentioned??

[justbroke]

thanks for your reply. Could you elaborate on what is the non-consumer test you mentioned??

A non-consumer bankruptcy filing is one in which the majority of debt is from "business" related debt. For example, if you owned several rental properties, your total debt may be mostly "non-consumer".