In re Oyola

571 B.R. 874, 2017 Bankr. LEXIS 2507
CourtUnited States Bankruptcy Court, M.D. Florida
DecidedAugust 24, 2017
DocketCase No. 8:15-bk-08716-MGW
StatusPublished
Cited by1 cases

This text of 571 B.R. 874 (In re Oyola) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Oyola, 571 B.R. 874, 2017 Bankr. LEXIS 2507 (Fla. 2017).

Opinion

ORDER AND MEMORANDUM OPINION OVERRULING TRUSTEE’S OBJECTION TO DEBTOR’S CLAIM OF EXEMPTIONS

. Michael G. Williamson, Chief United States Bankruptcy Judge

Ordinarily, a debtor who is not a U.S. citizen cannot legally formulate the intent to reside here permanently for homestead purposes unless the debtor is a permanent resident as of the petition date. Here, the Debtor was not a permanent resident as of the petition date. So she cannot legally intend to reside here permanently. But the Debtor’s adult daughter, who is living in the Debtor’s house, was a permanent resident as of the petition date. And her minor granddaughter, who is also living in her house, was a U.S. citizen. Because the Florida Constitution permits an owner to claim property as homestead if the owner’s family is living on the property, the Debtor is entitled to claim the homestead exemption.

[876]*876Background

The Debtor is a Colombian citizen.1 It appears she came to the United States, along with her daughter, sometime before 1997.2 Her initial basis for entry into the U.S. -is unclear. But .in June 1997, the Debtor married a U.S. citizen,3 which would have made her immediately eligible for conditional permanent residence.4 In two years, she could have had those conditions removed, making her eligible for permanent residence—i.e., a “green card.”5 For some reason, perhaps because her marriage ended after only a few years, the Debtor never obtained her green card.6

At some point, the Debtor apparently left the country, only to later return. It is undisputed, though, that the Debtor has been living in the U.S. since 2008 or so. The Debtor currently lives in her home at 12143 Armenia Gables Circle, Apt, #12143, Tampa, Florida, with her 30-year-old daughter, who was a permanent resident at the time this case was filed, as well her four-year-old granddaughter, who is a U.S. citizen.

In 2015, the Debtor filed for chapter 7 bankruptcy.7 In her schedules, the Debtor claimed the Armenia Gables Circle property as exempt homestead.8 There is no dispute the Debtor currently lives at the Armenia Gables Circle property and that she (subjectively) intends to reside there.9 Although she will be eligible for a green card once her daughter becomes a citizen, which is expected to happen soon, the Debtor was not a permanent resident at the time , she filed this case.10

The Trustee objected to the Debtor’s homestead exemption.11 Because the Debt- or was not a permanent resident at the time she filed, the Trustee says the Debtor cannot legally form the intent to reside at the Armenia Gables Circle property permanently, which the Trustee argues is a requirement to claim the homestead exemption.12 The Court must now decide whether the fact that the Debtor was not a permanent resident as of the petition date bars her from claiming the homestead exemption.

Conclusions of Law

More than ten years ago, this Court, in In re Fodor, considered whether a debtor who was not a permanent resident as of the petition date could claim the homestead exemption.13 In Fodor, the debtor was a Hungarian citizen, He married a U.S. citizen ten months before filing for bankruptcy, which meant he was eligible for conditional permanent resident status based on the marriage.14 But the debtor did not obtain his conditional permanent residence until three months after filing for bankruptcy.15 This Court ruled, in sustaining the objection to the Debtor’s homestead exemption claim, that the debtor [877]*877could not legally formulate the intent to reside at his house permanently because he was not a permanent resident as of the petition date.16

At first glance, the rationale for denying the homestead exemption in Fodor appears to apply equally here. Like the debt- or in Fodor, the Debtor here was not a permanent resident as of the petition date. It’s true that the Debtor will likely be eligible for permanent residence once her daughter becomes a U.S, citizen, which is expected to happen soon (or may have already happened). And that was true of the debtor in Fodor. In fact, the debtor in Fodor actually obtained his permanent residence just three months after the petition date. But that was not enough to support the homestead exemption. The Debtor, however, argues the Court should follow the Third District Court of Appeal’s decision five years ago in Grisolia v. Pfeffer,17

In Grisolia, the Third District Court of Appeal held that a Venezuelan citizen here on a temporary visa could claim the homestead exemption.18 In that case, Favio Gri-solia Sanchez and Ivonne Grisolia, both Venezuelan citizens, moved to the U.S. after a kidnapping attempt on their son, a U.S. citizen, who was four years old at the time.19 Later, Favio died, and two of his creditors made a claim against his estate. In response, his estate sought a determination from the probate court that Favio’s apartment, where his wife and son were still living, was exempt homestead.20 After the probate court denied the homestead claim, his estate appealed.

On appeal, the Grisolia court, relying on the Florida Supreme Court’s decision in In re Cooke, correctly noted that the Florida Constitution permits an owner to claim property as homestead, even if the owner is not living there, so long as the owner’s family is living on the property:

The Florida Supreme Court has addressed the issue of homestead exemption and held that “although it is not necessary that the head of the family reside in the state or intend to make the property in question his permanent residence, he must establish that he intended to make his property his family’s permanent residence.” We have also acknowledged that article X, section 4(a)(1) specifies that a homestead exemption is limited to the residence of the owner or the owner’s family and, “[a]c-cordingly, ‘the Florida Constitution does not require that the owner claiming homestead exemption reside on the property; it is sufficient that the owner’s family reside on the property.’ ”21

The Grisolia court noted that in Cooke, the Florida Supreme Court rejected the homestead claim by Canadian citizens temporarily in the U.S. because none of them had the legal right to reside in Florida.22 But in Grisolia, Favio’s son, who was a U.S. citizen, had the legal right to reside in Florida permanently, so the Grisolia court held that the probate court was wrong in determining the property was not homestead.23

[878]*878This ease is similar to Gñsolia in one significant respect. Like in Gñsolia, the Debtor’s family has the legal right to reside in Florida permanently. Here, the Debtor’s daughter is a permanent resident (and may be a citizen); and the Debtor’s granddaughter is a U.S. citizen. But the cases are different in one crucial respect: unlike in Gñsolia,

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Related

In re Mendoza
597 B.R. 686 (S.D. Florida, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
571 B.R. 874, 2017 Bankr. LEXIS 2507, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-oyola-flmb-2017.