Miami Personal Bankruptcy Lawyer Jordan E. Bublick has over 25 years of experience in filing Chapter 13 and Chapter 7 bankruptcy cases. His office is centrally located in Miami at 1221 Brickell Avenue, 9th Fl., Miami and may be reached at (305) 891-4055. www.bublicklaw.com
In the case of Luis Hernandez, 07-16379-BKC-RAM, the Bankruptcy Court disagreed with the Franzese court. It held that mere entitlement to claim homestead exemption does not mean the debtor receives the benefit of a homestead. Mere eligibility not sufficient. The Court read the exclusion narrowly. The Court agreed with the Court in In re Gatto, 380 B.R. 88 (Bankr. M.D. Fla. 2007), In re Shoopman, ___ B.R. ___, 2008 WL 817109, (Bankr.S.D.Fla. 2008).
It held that the new statutory personal property exemption not applicable to debtors who claim or receive the benefits of the constitutional homestead exemption. The benefits exception only applies to the debtor who is benefitting from the constitutional shield from execution by creditors outside of bankruptcy or trustees/creditors in bankruptcy.
In this case, the debtor is benefitting from constitutional protection as his wife's right to claim homestead protection would stop the trustee's right to sell home benefit of creditors.
