The Bankruptcy Court of the Middle District of Florida issued its decision in In re Gatto, et al, ___ B.R. ___, 2007 WL 4554217 (Bkrtcy.M.D.Fla.)(Williamson, J.) on various aspects of new Section 222.25(4), Florida Statutes which was effective on July 1, 2007. This new section provides for the exemption of the debtor's interest in personal property not to exceed $4,000 if the debtor does not "claim or receive the benefits of a homestead exemption under s. 4, Art. X of the State Constitution. In these three cases, the trustee's objected to the debtors' claim of exemptions under section 222.25(4), Florida Statutes on the basis that while the debtors did not specifically claim their homes as exempt on their form schedule C, that they nonetheless received various "benefits" from their ownership of the homestead. The court disagreed with the trustees and concluded that the fact that the debtor did not claim their homes as exempt combined with their timely indication on their statement of intention to surrender of their homes, resulted in their receiving no benefit of the Florida constitutional homestead exemption.
The trustees also objected to the debtors' "stacking" of their $1,000 personal property exemption under section 4(a)(2) of article X of the Florida Constitution with the $4,000 section 222.25(4) statutory exemption. The court held that nothing in section 222.25(4) makes it unavailable to a debtor who is also claiming the $1,000 constitutional personal property exemption. The court held that the debtors are entitled to claim the $4,000 section 222.25(4) exemption in addition to the $1,000 constitutional personal property exemption for a total of $5,000 in personal property exemptions. This conclusion is in accordance with the court's prior decision in In re Bezares, 377 B.R. 413 (Bankr.M.D.Fla.2007)(Paskay, J.) The court further noted that in a joint case whether neither debtor claims nor receives the benefit of the homestead exemption, the debtors may each claim up to $5,000 of personal property as exemption for a total of $10,000 of exempt personal property.
