Monday, November 28, 2005

No Appeal on Homestead Cap?

There are several new cases to report on, but before doing so let's briefly revisit the "Great Homestead Debate of 2005." We've previously reported on the conflicting decisions interpreting the 522(p) homestead cap, with at least one court holding that the cap only applied in "non-opt-out" states where debtors could elect between federal and state exemptions, and several others holding that the cap applied universally. A judge in Nevada in the latter camp had issued a certification for direct appeal of her decision to the Ninth Circuit Court of Appeals, based on conflict with an earlier Arizona decision. See In re Virissimo, 332 B.R. 208 (Bankr. D. Nev. 2005).

Unfortunately, it appears that any hope for an early circuit-level decision on this issue may be dashed -- despite the certification, the debtor apparently has not taken an appeal of the October 31, 2005 order sustaining the trustee's objection to the homestead exemption. The Virissimo docket reflects that the trustee is now moving forward with a motion to sell the homestead property. Those of us hoping for more clarity on this issue may still be waiting a while.

2 comments:

Anonymous said...

Expect an appeal in the case of In Re Kaplan. A final decision will come end of January, 2006.

Jonathan said...

David, might the homestead cap of $125,000 work in the debtor's favor if the debtor moves from a State like Florida (unlimited homestead) or Massachusetts ($500,000 homestead) to Georgia ($10,000 homestead exemption) and files within 2 years of moving. It seems to me that the debtor in this hypo would pick up 10x as much homestead exemption as a lifelong Georgian.
Jonathan Ginsberg
Ginsberg Law Offices
Atlanta, GA
http://www.thebklawyer.com/thebkblog