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John Chapman Law Articles

Business & Estate Litigation

Florida Homestead and Exemptions

A. Homestead Exemption

What Is Homestead?

Constitution Article 10, Section 4 - Homestead Exempted from Forced Sale

(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:

(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner's consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner's family;

In re Kellogg, 197 F.3d 1116 (11th Cir. 1999) - Where the size of property exceeded the limitation and could not be legally subdivided the court could order the property sold, with the owner retaining the value of the property exempted and the proceeds from the remainder being made available to creditors.

In re Quaraeshi, 289 B.R. 240 (Bankr. S.D. Fla. 2002) - Where bankruptcy court approved sale of homestead, which exceeded ½ acre limitation, debtor was only entitled to exempt a portion of the net proceeds from sale after payment of all mortgages and costs of sale. In this case ½ acre represented 19% of the total property, so therefore the debtor was entitled to exempt only 19% of the net sales proceeds.

In re Bubnak, 176 B.R. 601 (Bankr. M.D. Fla. 1994) - Motor home entitled to homestead exemption where it was permanently hooked up to utilities, the debtors had no other home, and they intended to reside in the motor home as their permanent residence. But See In re Kirby B.R. 825 (Bankr. M.D. Fla. 1998) - Debtor is not entitled to exemption where he failed to show a sufficient permanent nexus between the motor home and Florida real property. Here the debtor regularly used his motor home to travel outside the state.

In re Hacker, 260 B.R. 542 (Bankr. M.D. Fla. 2000) - Debtor not entitled to exemption on 34 foot boat even though it was hooked up to utilities and the engine was broken, since boat had the potential of mobility. This is the majority position, but See In re Mead, 255 B.R. 80 (Bankr. S.D. Fla. 2000), 8888 that a boat can be homestead. See also In re Christie, 2003 WL 168656, *1, 16 Fla. L. Weekly Fed. B 42, 42 (Bankr. M.D. Fla. Jan 22, 2003)(in accord with Hacker and finding Mead to be in the clear minority)

What Debts are Excepted from the Exemption?

See Article 10, Section 4(a)

§222.01(5) As provided in s. 4, Art. X of the State Constitution, this subsection shall not apply to:

(a) Liens and judgments for the payment of taxes and assessments on real property.

(b) Liens and judgments for obligations contracted for the purchase of real property.

(c) Liens and judgments for labor, services, or materials furnished to repair or improve real property.

(d) Liens and judgments for other obligations contracted for house, field, or other labor performed on real property.

Havoco of America, LTD v. Hill, 790 So. 2d 1018 (Fla. 2001) - In this case Havoco sued Hill out of state for fraud, conspiracy and tortious interference arising from a coal supply contract. After the jury returned a verdict against Hill for $15,000,000, but before the judgment became final, Hill purchased a $650,000 house in Destin with non-exempt cash assets. Hill then filed a Chapter 7 bankruptcy in Florida, claiming the house as his homestead. The bankruptcy court overruled Havoco's objection, which Havoco appealed to the 11th Circuit. In answering the certified question from the 11th Circuit, the Florida Supreme Court held that a homestead acquired by a debtor with the specific intent to delay or defraud creditors is not excepted from the constitutional protections, reasoning that the only exceptions are those set forth above. The court approved, however, the line of cases that provide that homestead property could be subject to an equitable lien where the funds obtained through fraud or egregious conduct were used to invest in, purchase or improve the homestead.

Who is Entitled to Claim Homestead?

Art. 10, Section 4(a) - any "natural person."

Note: no longer limited to "head of household" per 1984 amendment to the Constitution.

In re Bosonetto, 271 B.R. 403 (Bankr. M.D. Fla. 2001) - Property held in name of trust not entitled to homestead exemption as the trust is not a "natural person." (Note that for the purposes of the homestead tax exemption the property may be held in the name of a trust. This is a common form of ownership; however, clients should be made aware that their homes may be subject to the claims of creditors if held in trust.) In In re Edwards, 356 B.R. 807 (Bankr. M.D. Fla. 2006), however, the court reached the opposite conclusion, finding that even though the home was titled in the name of a revocable trust, the debtor was still entitled to the homestead exemption where he was both the grantor and the trustee.

In re Boone, 134 B.R. 979 (Bankr. M.D. Fla. 1991) - Non-immigrant alien who does not have permanent resident visa is not entitled to exemption as he legally lacks the intent to permanently reside in Florida.

Hillsborough Inv. Co. v. Wilcox, 13 So. 2d 448 (Fla. 1943) - The character of property as a homestead depends on the owner's actual intention to reside thereon as a permanent place of residence, coupled with the fact of residence.

Remington Investments, Inc. v. Seiden, 6 Fla. L. Weekly Supp. 427B (15th Judicial Circuit, 1999) - In determining whether the debtor established homestead, the court applied the factors set forth in §196.015 Fla. Stat., such the place of employment, voter registration, and the debtor's driver's license. Although this section governs the property tax homestead exemption, the court considered it to be instructive.

When does Homestead attach?

Nationwide Financial Corporation v. Thompson, 400 So. 2d 559 (Fla. 1st DCA 1981) and Smith v. Hamilton, 428 So. 2d 389 (Fla. 4th DCA 1983) - Judgment lien will have priority if it attaches prior to establishment of homestead. Homestead is established when the owner makes the property his permanent place of residence.

Bowers v. Mozingo, 399 So. 2d 492 (Fla. 3d DCA 1981) The claimed homestead right and the judgment lien would attach to the property simultaneously upon the debtor's acquiring an ownership in the property. Bowers indicates that a judgment recorded prior to acquisition of a homestead interest cannot attach to the property until the debtor acquires an ownership interest in the property, and under such circumstances the homestead right will have priority.

Suntrust Bank/Miami v. Papadopolous, 740 So. 2d 594 (Fla. 3d DCA 1999) - proceeds from the sale of a homestead are protected if the seller intends to reinvest the proceeds in another homestead. Such proceeds are protected even if used to payoff a second mortgage securing personal debts, not used to improve the homestead.

How Does One Assert a Claim of Homestead?

222.01 Designation of homestead by owner before levy - (1) Whenever any natural person residing in this state desires to avail himself or herself of the benefit of the provisions of the constitution and laws exempting property as a homestead from forced sale under any process of law, he or she may make a statement, in writing ... signed by the person making it and shall be recorded in the circuit court.

(2) When a certified copy of a judgment has been filed in the public records ... a person who is entitled to the benefit of ... homestead and who has a contract to sell or a commitment from a lender for a mortgage on the homestead may file a notice of homestead in the public records ...of the county in which the homestead property is located in substantially the following form: (see form set forth in this section)

222.02 Designation of homestead after levy.--Whenever a levy is made upon the lands...of such person whose homestead has not been set apart and selected, such person, or the person's agent or attorney, may in writing notify the officer making such levy, by notice under oath made before any officer of this state duly authorized to administer oaths, at any time before the day appointed for the sale thereof, of what such person regards as his or her homestead, with a description thereof; and the remainder only shall be subject to sale under such levy.

222.09 Injunction to prevent sale.--The circuit courts have equity jurisdiction to enjoin the sale of all property, real and personal, that is exempt from forced sale.

222.10 Jurisdiction to subject property claimed to be exempt.--The circuit courts have equity jurisdiction upon bill filed by a creditor or other person interested in enforcing any unsatisfied judgment or decree, to determine whether any property, real or personal, claimed to be exempt, is so exempt, and in case it be not exempt, the court shall, by its decree subject it, or so much thereof as may be necessary, to the satisfaction of said judgment or decree and may enjoin the sheriff or other officer from setting apart as exempt property, real or personal, which is not exempt, and may annul all exemptions made and set apart by the sheriff or other officer.

222.17 Manifesting and evidencing domicile in Florida.-- (1) Any person who shall have established a domicile in this state may manifest and evidence the same by filing in the office of the clerk of the circuit court for the county in which the said person shall reside, a sworn statement showing that he or she resides in and maintains a place of abode in that county which he or she recognizes and intends to maintain as his or her permanent home.

Which Party Bears the Burden of proof?

Staten Island Savings Bank v. Rich Associates, Inc., 6 Fla. L. Weekly Supp. (17th Judicial Circuit 1999)(citing In re: Lee, 223 B.R. 594 (Bankr. M.D. Fla.1998) - Exemptions are to be liberally construed in favor of the debtor; therefore, the burden is on the objecting party (the creditor) to establish that claimant is not entitled to the homestead exemption. (This is the majority view in a line of bankruptcy cases.)

But See Remington Investments, Inc. v. Seiden, 6 Fla. L. Weekly Supp. 427b (15th Judicial Circuit 1999)(citing Matthews v. Jeacle, 55 So. 865 (Fla. 1911) and Banks v. Banks, 98 So. 2d 337 (Fla. 1957) - The party claiming the exemption bears the burden of proof to establish homestead exemption.

B. Jointly Titled Property, Entireties Property and Joint Accounts

Tenancy by the Entireties

Property held as tenancy by the entireties possesses six characteristics ("unities"): (1) unity of possession (joint ownership and control); (2) unity of interest (the interest in the property must be identical); (3) unity of title (interests must have originated in the same instrument); (4) unity of time (interest must have commenced simultaneously);(5) survivorship; and (6) unity of marriage. Beal Bank, SSB v. Almand and Associates, 780 So. 2d 45 (Fla. 2001)(citations omitted) Where a husband and wife own property by tenancy by the entireties, the parties are held to each own the entire estate as one person. Therefore, property held by tenancy by the entireties cannot be reached by creditors of one spouse to satisfy the debt of the other.

Where a husband and wife acquire real property in the name of both, it is presumed that they hold by the entireties, absent express language of a contrary intent. In the case of personal property, however, there has been some disagreement as to whether the presumption of tenancy by the entireties applies. Id. See e.g. In re Bundy, 235 B.R. 110 (Bankr. M.D. Fla. 1999)(applying a presumption against the creation of tenancy by the entireties in personalty). In the absence of express language indicating that the personal property is held as tenancy by the entireties, the intention of the parties must be proven. Beal Bank, SSB at 54. See also In re McAnany, 294 B.R. 406 (Bankr. M.D. Fla. 2003)(finding Beal holding is limited to joint bank accounts and upholding Bundy as controlling as to personal property, and therefore debtor bears burden of proving intent to create entireties estate) However, it now appears to be settled, at least in the Middle District of Florida, that the presumption will apply to personal property if it was acquired during marriage and with marital assets. See In re Mathews, 360 B.R. 732 (Bankr. M.D. Fla. 2007)(receding from McAnany).

Joint Tenancy with Rights of Survivorship

Joint tenancies and tenancies by the entireties share common characteristics, except the unities of possession and marriage. However, a married couple can hold title as joint tenants - such as where they specifically state in a deed, title, or check the box while opening a new bank account. Where the parties hold property as joint tenants with rights of survivorship, each person is presumed to hold a separate share for purposes of alienation. Id. at 53. Therefore, a creditor of one joint tenant may attach the joint tenant's portion to recover the joint tenant's individual debt. Id.

Tenancy in Common

Where parties hold property by tenants in common they are held to each own a divisible interest that can be separated. Therefore, property held by tenants in common may be portioned to divide the separate interests of the parties, or the creditor may levy on the debtor tenant's partial interest to satisfy a judgment.

Joint Bank Accounts

Prior to the Florida Supreme Court's holding in Beal Bank, SSB v. Almand and Associates, supra, the law on joint accounts was a tangled morass of conflicting and inconsistent decisions. In Beal Bank the court attempted to set out several bright line tests to determine the nature of the tenancy in joint accounts owned by a husband and wife. The court first held that if the signature card does not expressly disclaim ownership by the entireties, then a presumption arises that it is held by both spouses by the entireties if the other unities of entireties are present. The burden is then on the creditor to prove that a tenancy by the entireties was not created. Id. at 58. (receding from First Nat'l Bank v. Hector Supply Co., 254 So. 2d 777 (Fla. 1971))

Where the signature card expressly states that the spouses own by the entireties, this ends the inquiry as to the form of ownership - thus no extrinsic evidence is admissible to show otherwise. Id. at 60. Where the signature card has an express disclaimer of an intent not to hold the account as tenancy by the entireties, and the depositor has expressly designated another form of ownership, no presumption of tenancy by the entireties arises. However, if the debtor shows that the bank did not offer tenancy by the entireties, or even expressly precluded that form of ownership, then no presumption arises and the debtor has the burden of proving that his and her spouse intended to hold the account as tenancy by the entireties. Id.

Despite the Beal Bank court's attempt to form a bright line test, it is the author's opinion that in any case where a husband and wife jointly own an account, the creditor will have an almost insurmountable burden to show that the account is something other than an entireties account.

C. Personal Property Exemption

Constitution Article 10, Section 4(a)(2): personal property to the value of $1,000. §222.25 (4) A debtor's interest in personal property, not to exceed $4000, if the debtor does not claim or receive the benefits of a homestead exemption.

§222.061 (1) When a levy is made ... upon personal property which is allowed by law or by the State Constitution to be exempt from levy and sale, the debtor may claim such personal property to be exempt from sale by making, within 15 days after the date of the levy, an inventory of his or her personal property. The inventory shall show the fair market valuation of the property listed and shall have an affidavit attached certifying that the inventory contains a correct list of all personal property owned by the debtor in this state and that the value shown is the fair market value of the property. The debtor shall designate the property listed in the schedule which he or she claims to be exempt from levy and sale.

(2) The original inventory and affidavit shall be filed with the court ... If the creditor desires to object to the inventory, he or she shall file an objection with the court which issued the writ within 5 days after service of the inventory, or he or she shall be deemed to admit the inventory as true. If the creditor does not file an objection, the clerk of the court shall immediately send the case file to the court issuing the writ, and the court shall promptly issue an order exempting the items claimed. Such order shall be sent by the court to the sheriff directing him or her to promptly redeliver to the debtor any exempt property under the levy and to sell any nonexempt property under the levy according to law.

(3) If the creditor files an objection ... the clerk shall immediately send the case file to the court issuing the writ, and the court shall automatically schedule a prompt evidentiary hearing to determine the validity of the objection and shall enter its order therein describing the exempt and nonexempt property. Upon its issuance, the order shall be sent by the court to the sheriff directing him or her to promptly redeliver to the debtor any exempt property under the levy and to sell the nonexempt property under the levy according to law.

(4) The court shall appoint a disinterested appraiser .... The appraiser shall be entitled to a reasonable fee ... not to exceed $100.

A review of this section reveals the procedural difficulty that can arise in attempting to levy on personal property. If a creditor locates and levies on an asset, the debtor can claim it exempt, subject to his or her providing an inventory (of questionable credibility) as provided by the statute. If the creditor files an objection to the inventory, an evidentiary hearing will be required. If a dispute arises as to valuation, it can be assumed that one will have a difficult time locating a qualified appraiser for $100.

D. Exemption of Wages

§222.11 - Exemption of Wages from Garnishment

What are "Wages" Entitled to the Exemption?

§222.11(1)(a) "Earnings includes compensation pay or payable, in money or some certain, for personal services or labor whether denominated as wages, salary, commission or bonus.

As shown by these cases set forth below, earnings of the self-employed are generally not exempt from claims of creditors. Therefore, a highly paid executive working for a company may be able to exempt his entire salary from the claims of creditors, but a self-employed contractor netting substantially less may not. Given the clear language of the statute however, one wonders whether this should be good law. See "So this Isn't Work? - When a Wage Isn't Protected," 18 Fla. Bar J. Dec. 2003, for a well-reasoned critique of the current state of the law and suggesting the courts be guided by IRS guidelines.

Brock v. Westport Recovery Corp., 832 So. 2d 209 (Fla. 4th DCA 2002) - judgment debtor's disbursements from family-owned business not exempt from garnishment, where they were not "compensation paid or payable in money for a sum certain for personal services or labor." Court further held that judgment debtor had burden of proving entitlement to exemption.

Vining v. Segal, 731 So. 2d 826 (Fla. 3d DCA 1999) -Proceeds from debtor's dental practice were not wages or salary to qualify them for a garnishment exemption.

Killian v. Lawson, 387 So. 2d 960 (Fla. 1980) - Purpose of statute exempting earnings is to enable the head of a family to support the family and prevent the family from becoming a public charge, thus statute should be liberally construed.

In re Manning, 163 B.R. 380 (Bankr. S.D. Fla. 1994)- An independent contractor or debtor that owns or controls a business cannot exempt the funds that he distributes to himself from the business simply by calling the money wages.

In re Zamora, 187 B.R. 783 (Bankr. S.D. Fla. 1995) - Attorney's earnings from his own law practice did not qualify as exempt earnings where debtor had complete control over the amount of his compensation.

In re Lee, 204 B.R. 78 (Bankr. M.D. Fla. 1996) - Commissions earned by insurance agent not exempt where agent was an independent contractor, was free to make his own business decisions and was solely responsible for his expenses.

Refco, Inc. v. Sarmiento, 487 So. 2d 75 (Fla. 3d DCA 1986)- Commissions earned by commodities broker were exempt. Court held he was clearly an employee and not an independent contractor because he had a supervisor, worked strictly for one brokerage firm, and had taxes withheld from his check.

In re Branscum, 229 B.R. 32 (Bankr. M.D. Fla. 1999) - Court rejected claim that private investigator's earnings were exempt. Affirmed line of cases holding that independent contractor's earnings are not exempt.

Who's Wages Are Exempt?

§222.11(1)(c) - "Head of Family" includes an natural person who's providing more than one half of the support for a child or other dependent.

First Union National Bank of Florida v. Alford, 6 Fla.L.Weekly Supp. 771a (3rd Judicial Circuit 1999) - Child need not be a son or daughter or be a minor to enable the defendant qualify as head of household. Here the court held that the defendant qualified as head of household where she supported her 37-year-old son and 13-year-old granddaughter residing with her. (this case does not explain why the son was dependent on his mother for support and whether the mother had a legal duty to support him or his daughter).

In re Beckmann, 2000 Bankr. LEXIS 1991, 2000 WL 33722204 (Bankr. M.D. Fla. 2000) - Debtor was not entitled to head of household wage exemption where debtor's spouse did not qualify as a dependent and parties had no children. To qualify as a "dependent" the person's income must be insufficient to sustain him or her without the support of the person claiming him or her as a dependent. Although the debtor provided most of his spouse's support, she regularly earned an income and was not "dependent" on the debtor to survive.

What is the Extent of the Exemption?

§222.11(2)(a) - All of the disposable earnings of a head of family whose disposable earnings are less than or equal to $500 a week are exempt from attachment or garnishment.

(b) Disposable earnings of a head of a family, which are greater than $500 a week, may not be attached or garnished unless such person has agreed otherwise in writing. In no event shall the amount attached or garnished exceed the amount allowed under the Consumer Credit Protection Act, 15 U.S.C. s. 1673.

(c) Disposable earnings of a person other than a head of family may not be attached or garnished in excess of the amount allowed under the Consumer Credit Protection Act, 15 U.S.C. s. 1673.

(3) Earnings that are exempt under subsection (2) and are credited or deposited in any financial institution are exempt from attachment or garnishment for 6 months after the earnings are received by the financial institution if the funds can be traced and properly identified as earnings. Commingling of earnings with other funds does not by itself defeat the ability of a head of family to trace earnings.

Under subparagraph (a), all wages of a head of household less or equal to $500.00 are totally exempt from garnishment. All other wages over $500.00 of a head of household are also exempt, without limitation, unless, as set forth in subparagraph (b), the debtor has otherwise agreed in writing. Although it is reasonable to assume that one would not ordinarily so agree, such language is appearing with more regularity in credit applications and agreements, promissory notes, and leases.

The right to garnish a debtor's wages is further limited by 15 U.S.C. §1673. This section provides that the amount that may be garnished from anyone's wages (not limited to head of household) is limited to 25% of that person's disposable net earnings for that week, or the amount by which the disposable earnings for that week exceed 30 times the minimum wage (currently $5.15 x 30 = $154.50), whichever is less. Disposable income is defined by §1672(b) as gross income less deductions required by law, such as social security and taxes. For pay periods other than weekly, this section provides that the Secretary of Labor shall prescribe a multiple of the Federal minimum hourly wage equivalent. The current limitations are set forth in the following table:

 

MAXIMUM GARNISHMENT OF DISPOSABLE EARNINGS UNDER NORMAL
CIRCUMSTANCES*
FOR THE $7.25 MINIMUM WAGE

Weekly

Biweekly

Semimonthly

Monthly

$217.50 or less;
NONE

$435.00 or less;
NONE

$471.25 or less;

NONE

$942.50 or less;
NONE

More than $217.50 but
less than $290.00;

Amount ABOVE
$217.50

More than $435.00 but
less than $580.00;

Amount ABOVE
$435.00

More than $471.25 but
less than $628.33;

Amount ABOVE 
$471.25

More than $942.50 but
less than $1256.66;

Amount ABOVE 
$942.50

$290.00 or more
MAXIMUM 25%

$580.00 or more;
MAXIMUM 25%

$628.33 or more;
MAXIMUM $25%

$1256.66 or more;
MAXIMUM 25%

* These restrictions do not apply to garnishments for child and/or spousal support, bankruptcy, or actions to recover state or federal taxes.

Source: U.S. Dept. of Labor, http://www.dol.gov/whd/regs/compliance/whdfs30.pdf

E. Life Insurance and Annuities Policies

§222.14 Exemption of cash surrender value of life insurance policies and annuity contracts from legal process. - The cash surrender values of life insurance policies issued upon the lives of citizens or residents of the state and the proceeds of annuity contracts issued to citizens or residents of the state, upon whatever form, shall not in any case be liable to attachment, garnishment or legal process in favor of any creditor of the person whose life is so insured or of any creditor of the person who is the beneficiary of such annuity contract, unless the insurance policy or annuity contract was effected for the benefit of such creditor.

Technical Chems. & Prods. v. Porchester Holdings, Inc., 785 So. 2d 636 (Fla. 4th DCA 2001). Section 222.14 protected from attachment the cash surrender value whole life policies issued upon the lives of citizens or residents of the state and the proceeds of annuity contracts issued to citizens or residents of the state, upon whatever form.

In re Lowery, 272 B.R. 317 (Bankr. M.D. Fla. 2001) § 222.14 only exempts the cash surrender value of life insurance policies of which the debtor is both the owner and the insured. The use of "or" to link "garnishment" and "creditors of the person whose life is insured" does not negate the statute's plain meaning and the requirement that the owner and the insured be the same person.

In re McCollam, 986 F.2d 436 (11th Cir. 1993). Annuity contract established in lieu of a lump sum settlement of a wrongful death action was exempt.

In re Solomon, 95 F.3d 1076 (11th Cir. 1996). Annuity contract established as security for payments under a structured settlement not exempt where debtor was not a named beneficiary under the contract.

F. Retirement and Profit Sharing Benefits

§222.21 Exemption of pension money and retirement or profit-sharing benefits from legal processes. - (1) Money received by any debtor as pensioner of the United States within 3 months next preceding the issuing of an execution, attachment, or garnishment process may not be applied to the payment of the debts of the pensioner when it is made to appear by the affidavit of the debtor or otherwise that the pension money is necessary for the maintenance of the debtor's support or a family supported wholly or in part by the pension money. The filing of the affidavit by the debtor, or the making of such proof by the debtor, is prima facie evidence; and it is the duty of the court in which the proceeding is pending to release all pension moneys held by such attachment or garnishment process, immediately, upon the filing of such affidavit or the making of such proof.

(2)(a) Except as provided in paragraph (b), any money or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in, a retirement or profit-sharing plan that is qualified under s. 401(a), s. 403(a), s. 403(b), s. 408, s. 408A, or s. 409 of the Internal Revenue Code of 1986, as amended, is exempt from all claims of creditors of the beneficiary or participant.

This section exempts any funds held in, or received from a pension or qualified retirement plan. These plans include (1) 401(a) - pension and profit sharing plans; (2) 403(a), (b) - tax sheltered annuity plans; (3) 408 and 408A - IRAs and Roth IRAs; and (4) 409 - employee stock ownership plans.

Beardsley v. Admiral Ins. Co., 647 So. 2d 327 (Fla. 3d DCA 1994) Bank account which contained allegedly commingled nonexempt funds with funds which were exempt as retirement funds under §222.21, did not automatically lose the exempt status of the entire account so long as the sources of the alleged exempt retirement funds were reasonably traceable.

G. Motor Vehicles Exemption

222.25 Other individual property exempt from legal process. - The following property is exempt from attachment, garnishment, or other legal process:

(1) A debtor's interest, not to exceed $1,000 in value, in a single motor vehicle as defined in s. 320.01.

320.01 (1) "Motor vehicle" means:

(a) An automobile, motorcycle, truck, trailer, semitrailer, truck tractor and semitrailer combination, or any other vehicle operated on the roads of this state, used to transport persons or property, and propelled by power other than muscular power, but the term does not include traction engines, road rollers, such vehicles as run only upon a track, bicycles, or mopeds.

(b) A recreational vehicle-type unit primarily designed as temporary living quarters for recreational, camping, or travel use, which either has its own motive power or is mounted on or drawn by another vehicle. Recreational vehicle-type units, when traveling on the public roadways of this state, must comply with the length and width provisions of s. 316.515, as that section may hereafter be amended ...

This section provides an exemption of $1000 of an individual's equity in a motor vehicle. Prior to making a levy on a vehicle the creditor should check with the Department of Motor Vehicles to ascertain whether a creditor holds a lien on the vehicle and the extent of the lien to determine whether there is sufficient equity to warrant making a levy. One should also be aware that the Sheriff's fees for seizing, storing, and selling a vehicle can be substantial, often exceeding $3000, and most will require the creditor to place a substantial deposit. These fees will be subtracted from the proceeds of sale.

H. Fraudulent Transfers

§222.29. No exemption for fraudulent transfers - An exemption from attachment, garnishment, or legal process provided by this chapter is not effective if it results from a fraudulent transfer or conveyance as provided in chapter 726.

This section 229.29 was created effective October 1, 1993, and provides that an exemption from attachment, garnishment, or other legal process is not effective if it results from a fraudulent transfer or conveyance as provided in Chapter 726. Chapter 276, Fraudulent Transfers, provides certain presumptions for transfers made to insiders for less than adequate consideration (an in-depth discussion of this section is outside the scope of this lecture). Section 222.29 clearly prohibits debtors from taking advantage of Florida's liberal exemptions when they fraudulently convert non-exempt assets into exempt assets. Note also that this statute only applies to exemptions provided by this chapter, not to the homestead Exemption, which is provided by the Constitution. See Havoco of America, LTD v. Hill, 790 So. 2d 1018 (Fla. 2001)

§ 222.30. Fraudulent asset conversions

As with §229.29, this section was also created effective October 1, 1993. It provides that a conversion, in any form, of nonexempt assets to exempt assets is a fraudulent asset conversion as to the creditor, whether the creditor's claim to the asset arose before or after the conversion of the asset, if the debtor made the conversion with the intent to hinder, delay, or defraud the creditor. The section further provides that a creditor may obtain an avoidance of the conversion to the extent necessary to satisfy its claim, an attachment of the converted asset, or an injunction against further conversion. Lastly, in the event the converted assets are subsequently transferred to a third party, the provisions and remedies of chapter 726 apply.

As with §222.29, this statute only applies to exemptions provided by Chapter 222, not to the Homestead Exemption. See Havoco of America, LTD v. Hill, 790 So. 2d 1018 (Fla. 2001)

I. Miscellaneous Other Exemptions

Retirement Plans - almost any state or local employee retirement plan or pension, benefits of fraternal societies, all federal government employee retirement or pension plans.

Partnerships - a partner is jointly and severally liable for all obligations of a partnership (§620.8306(1) Fla. Stat.), however the creditor must join the partner in a lawsuit against the partnership (§620.8307(3) Fla. Stat.), and the creditor must first seek to levy on the partnership assets before going against the individual partner's assets (§620.8307(4) Fla. Stat.)

Interest in a spendthrift trust. A spendthrift trust is one set up by one person for the benefit of another. The principal and income is generally exempt from claims of creditors, Waterbury v. Munn, 32 So. 2d 603 (Fla. 1947), except for alimony and child support. Bacardi v. White, 463 So. 2d 218 (Fla. 1985)

Unemployment compensation benefits - are exempt from claims of creditors - except child support (§443.051(2), (3) Fla. Stat.)

Veterans benefits - benefits to disabled veterans or their surviving spouses are generally exempt from claims of creditors. (§744.626 Fla. Stat.)

Social security benefits - are exempt pursuant to 42 USC sec. 407

 

 

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