ExemptionsExpress The Guide to Exemption Options For Bankruptcy Attorneys
John R. Bates'
There is no 730-day or 180-day state
You are here because you indicated: 1. There is no state in which debtor will have been domiciled continuously for at least 730 days immediately preceding the date of filing AND 2. There is no state in which debtor was domiciled at any time during the 180 days preceding those 730 days.
If both of those indications are correct, then there is no qualifying state whose exemption laws apply and debtor must use the federal exemptions in 11 USC § 522(d).
There are two separate bases for this conclusion:
1. The only way a debtor can be denied use of the federal exemptions is if the applicable state has opted out. 11 USC § 522(b)(2). If there is no applicable state, there can be no opt-out and debtor therefore retains use of the federal exemptions. In re Arispe, 289 B.R. 245 (Bankr.S.D.Fla.2002); In re Goldsmith, 2003 WL 295690 (Bankr.S.D.Fla. 2003).
2. The "savings clause" in 11 USC § 522(b), hanging paragraph, (added by BAPCPA) states: “If the effect of the domiciliary requirement under subparagraph (A) is to render the debtor ineligible for any exemption, the debtor may elect to exempt property that is specified under subsection (d) [the federal exemptions].”
(Debtors who use the federal exemptions cannot claim the federal non-bankruptcy exemptions or the protections for jointly-held property in 11 USC § 522(b)(3)(B). 11 USC § 522(b)(2).)