Federal Statute, 11 USC Section 522 and Florida State Statute, Section 222.21 provide that all ERISA qualified retirement plans and pensions, are Exempt or protected from attachment, seizure or garnishment, by Creditors in the State of Florida.
Florida has an unlimited Homestead Exemption, in terms of the Fair Market Value of the Homestead. Provided you property sits on less than one-half acre in a municipality of less than 160 acres if outside a municipality, then the property can have an unlimited value in Fair Market Value. However, if you lived in your Homestead for less than 1215 days before filing Bankruptcy, you are limited to using the Federal Exemption, as it applies to your Homestead property. As of the time of the Read More +
In the State of Florida, if you file Bankruptcy, you will most likely use the State Exemptions of Florida, rather than the Federal Exemptions, or the Exemptions of any other State. There is an Exception to this Rule. To use the State Exemptions of Florida when filing Bankruptcy in Florida, you must be Domiciled in the State of Florida for at least 730 days before filing Bankruptcy. This is known as the 730 day rule. If you lived in more than one State in the Read More +
In 1998, In re McFadyen, a Bankruptcy Court decision in the Middle District of Florida, held that a Federal Tax Lien is enforceable against Homestead property in the State of Florida. There are three exceptions to the Florida Homestead Exemption, in which a Creditor can force the sale of a Homestead, according to the Florida Supreme Court in the case of Havoco of America, Ltd v. Hill: Payment of taxes and assessments on the Homestead; Obligations contracted for the purchase, improvement or repair of the Read More +
Most Florida Courts have held that in order to claim the Homestead Exemption as a protection against Creditors, the homeowner must reside in the property. In 1882 in Drucker v Rothstein, a Florida Court held that a piece of land that was never occupied by the Claimant, as a home or dwelling, and not capable of occupancy, does not qualify as a Homestead under the Constitution of the State of Florida. Furthermore, in the case of In Re. Estate of Ritter, another Florida Court Read More +
In order for a Debtor to claim the Homestead Exemption in the State of Florida as a protection against his Creditors, he generally must be occupying the dwelling.
Chapter 222 is the Florida Statute, enacted by the Florida Legislature, that implements the Homestead Exemption protection, that is contained in the State Constitution of the State of Florida. Florida Statute 222.05 states: Any person owning and occupying any dwelling house, including a mobile home used as a residence, or modular home, on land not his or her own which he or she may lawfully possess, by leased of otherwise and claiming such house, mobile home, or modular home as his or her homestead, shall Read More +
In Southern Walls, Inc v. Stilwell Corp, the 5th District Court in Florida, in discussing the Florida Homestead Exemption, stated, “although a castle to one may be a shanty to another, the law does not so discriminate. Thus, regardless of whether one’s castle is a traditional home or a modest cottage, whether it is a rural farmhouse or a villa by the sea, whether it floats or sits on wheels, whether it is a condominium or a co-op, it should receive the same protection under Read More +
In order for a Debtor to claim the benefit of the Florida Homestead Exemption, against a Creditor, he must be a Resident of the State of Florida. In re Bermudez, a 1992 South District Court decision held that a Debtor who has a permanent visa or green card can qualify as a Resident of Florida for purposes of the Florida Homestead Exemption. An Alien Debtor, or a Debtor illegally within the borders of the United States, and specifically Florida, cannot claim the Homestead Exemption against Read More +
Florida has a Head Of Family or Head Of Household Exemption that provides that the Wages of the Head Of Family are Exempt from Garnishment. That means the Wages of the Head Of Family cannot be Garnished in the State of Florida. There are some exceptions to this Law.
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