A debtor who is not a U.S. citizen is not entitled to a Florida homestead exemption unless the debtor holds a so-called green card entitling the debtor to permanent residence in the U.S.
The debtor was a woman who lived in the U.S. but was not a citizen. She had owned her home for more than 20 years and claimed a Florida homestead exemption. Other family members lived in the home, but none had permanent residence in the U.S.
The chapter 7 trustee objected to the exemption and won in a March 8 decision by Bankruptcy Judge Karen S. Jennemann of Tampa, Fla.
Eligibility for Florida’s homestead exemption has both an objective and a subjective test, Judge Jennemann said. The debtor met the objective test because she actually occupied the home.
The debtor failed the subjective test, Judge Jennemann said, because she could not “form an actual intent to live permanently in the Home.” [Emphasis in original.]
Judge Jennemann was not alone in her conclusion. She cited seven bankruptcy and state court decisions “uniformly” holding that “homeowners who lack permanent resident status in the United States cannot claim a homestead exemption under Florida law because they subjectively cannot formulate an intent to live here forever.”
Judge Jennemann said that a “few courts” allowed an exemption if the debtor had a family member with permanent residence in the U.S. She also cited two cases where the debtors had applied for political asylum. They were allowed homestead exemptions, Judge Jennemann said, because “they demonstrated sufficient indicia to allow them to acquire a quasi-permanent legal residency status.”
The debtor argued that one of her younger children had arrived in the U.S. at an early age and hoped eventually to gain permanent residence under the Deferred Action for Childhood Arrivals program. DACA was no help, Judge Jennemann said, because neither the youngster nor any family member “has any permanent residence status.” [Emphasis in original.]
Judge Jennemann sustained the objection to the exemption claim but urged the trustee to administer the home in a manner that might avoid foreclosure.
A debtor who is not a U.S. citizen is not entitled to a Florida homestead exemption unless the debtor holds a so-called green card entitling the debtor to permanent residence in the U.S.
The debtor was a woman who lived in the U.S. but was not a citizen. She had owned her home for more than 20 years and claimed a Florida homestead exemption. Other family members lived in the home, but none had permanent residence in the U.S.
The chapter 7 trustee objected to the exemption and won in a March 8 decision by Bankruptcy Judge Karen S. Jennemann of Tampa, Fla.
Eligibility for Florida’s homestead exemption has both an objective and a subjective test, Judge Jennemann said. The debtor met the objective test because she actually occupied the home.
The debtor failed the subjective test, Judge Jennemann said, because she could not “form an actual intent to live permanently in the Home.” [Emphasis in original.]