Florida Bankruptcy Law Blog

Can Motor Home Be Homestead?

A client reports that he lives in a motor home. Most of the time he parks the motor home in a rented space in Florida, and for all other reasons, he maintains Florida as his residence. He neither owns nor rents any real property in Florida or anywhere else. He asked me whether the motor home qualifies as his homestead because it is the place where he resides with his spouse.

Motor homes are treated similarly to house boats under the majority of court decisions. My initial research indicates that the general rule is that if the motor vehicle or boat is licensed and operable then it is not sufficiently grounded to constitute a form of homestead property even if it is the debtor’s primary residence. Boats permanently attached to a dock or motor homes parked permanently have been afforded homestead protection. Court decisions addressing this issue vary in their analysis, and the particular facts of each motor home or houseboat are most important.

posted by Jonathan Alper, bankruptcy and asset protection attorney, Orlando, Florida

Does Debtor Who Files Bankruptcy After Moving From Florida To Another State Claim Florida Exemptions?

I would appreciate anyone’s thoughts on the following questions posed by a bankruptcy attorney in Kentucky. The attorney represented prospective bankruptcy debtors who moved to Kentucky from Florida within the past two years. Under the new bankruptcy law, they are ineligible to use Kentucky exemptions because they had not resided in that state for two years. The last state where they lived for two years was Florida. The attorney concluded that Florida exemptions would apply to his Kentucky case, except for one issue. He asked me whether a person has to be a resident of Florida to be eligible for Florida’s exemption under a Florida statute or the Florida constitution. If so, his clients, now Kentucky residents, could not use Florida exemptions and would file bankruptcy under federal default exemptions.

Only Florida residents can file bankruptcy in Florida. Any of my clients who filed bankruptcy, being Florida residents, were eligible for Florida exemptions in bankruptcy. I never have had to determine whether a person had to be a Florida resident to claim Florida exemptions because I never did, or could, file a bankruptcy in Florida for a non-resident. I cannot find any provision of the Florida statutes that specifically states that only Florida residents are protected by Florida’s exemptions. Clearly, only Florida residents can claim homestead protection of the Florida Constitution because the definition of homestead is one’s place of residence, and if your homestead is in Florida you are a resident of Florida.

I do not know the answer to the question facing the Kentucky attorney. If a reader knows authority that supports the position the person filing bankruptcy in Kentucky cannot take Florida exemptions and is under federal bankruptcy exemptions, please send me an email. Thanks.

posted by Jonathan Alper, bankruptcy and asset protection attorney, Orlando, Florida.

Chapter 7: Median Income Definition Within Extended Family

One of the more interesting issues involved in the means test is defining the size of the debtor’s household. Household size together with total household income determines whether the debtor is above the state’s median income and therefore subject to means testing. A new bankruptcy client presented the situation where she and her daughter live in a home owned jointly with her mother. The client’s income is under the median income for a two person family. The mother pays part of the mortgage, but otherwise, the mother keeps her money separate to pay only the mother’s personal bills. The daughter is primarily responsible for the household bills and expenses and totally responsible for her child. However, if you add the mother’s income to the daughter’s income the total household income is well above median income for a household of three people.

I have not yet received the detailed income and expense records to calculate a means test analysis. It appears that by the law’s definition the household consist of three people. I am not aware of any means test provisions that would allocate less income to the household because of the unwritten agreement among the income earners concerning their respective responsibility for expenses and dependants within the household. The means test allows debtor’s to show "special circumstances" to adjust means test results. In this case, I don’t’ know if the mother’s refusal to contribute her fair share of income to the expenses of others would be a special circumstance that would avoid the results of means test analysis.

This case illustrates that means test definitions are unclear, complicated, and could impose unfair results on families truly unable to meet legitimate expenses.

posted by Jonathan Alper, bankruptcy and asset protection attorney, Orlando, Florida