Does Florida bankruptcy law apply to second homes? A New York couple filed for bankruptcy. In New York state, they have to surrender all their assets to the bankruptcy court except for $150,000 each of "exempt" assets. They own a "second" home in Florida worth about $250,000. If that was their primary residence, Florida law would cover their home to that amount (or more). But given that they lived in and filed for bankruptcy in New York, would the Florida home be part of the New York bankruptcy estate?
Yes, the second home will be part of the New York bankruptcy estate. Congress broadly defined property within the bankruptcy estate as all property, "wherever located and by whomever held," subject to limited exemptions. Florida's homestead exemption is among the broadest in the Unite dStates; the value of the property that can be protected is unlimited. See Florida Constitution, Article X, Section 5. As such, I have broken down your question into two parts: May the debtors use the Florida homestead exemption for their Florida home even if they are domiciled in New York? If not, may the debtors use either the Federal or New York state homestead exemptions to protect their Florida home? Exemption Eligibility The debtors can choose between either the federal exemptions of section 522(d) or the exemptions available under New York state and nonbankruptcy federal law; the debtors may not choose the exemptions available under Florida state law. Section 552 of the Bankruptcy Code is the operative statute. To take advantage of a state's exemption scheme, the debtor must either: Be domiciled in the state for the 730 days immediately prior to filing its petition; or If the debtor has not been domiciled in a single state for such period, the state in which the debtor was domiciled for the 180 days immediately preceding the 730-day period (or for the longer portion of that 180 day period). 11 U.S.C. § 522(b)(1)(A): . . . any property that is exempt under Federal law . . . or State or local law that is applicable on the date of the filing of the petition to the place in which the debtor’s domicile has been located for the 730 days immediately preceding the date of the filing of the petition or if the debtor’s domicile has not been located in a single State for such 730-day period, the place in which the debtor’s domicile was located for 180 days immediately preceding the 730-day period or for a longer portion of such 180-day period than in any other place; As a result, the debtor may only utilize either the Federal or New York homestead exemptions. Federal Homestead Exemption Section 522(d)(1) provides a homestead exemption in the amount of $22,975 in value for the debtor's residence. (1) The debtor's aggregate interest, not to exceed $ 22,975 in value, in real property or personal property that the debtor or a dependent of the debtor uses as a residence, in a cooperative that owns property that the debtor or a dependent of the debtor uses as a residence, or in a burial plot for the debtor or a dependent of the debtor. (The linked statute says that the federal homestead exemption is capped at $15,000. But pursuant to 11 U.S.C. § 104, the amount is adjusted every three years to account for changes in the cost of living. Effective April 1, 2013, the cap is $22,975). Essential to the right to a homestead exemption is designation and occupancy of the property as a residence. Residence and domicile are not necessarily the same thing. Courts seem to be split as to whether a debtor may hold multiple "residences" at the same time. For example, the court in In re Lawrence, 469 B.R. 140 (Bankr. D. Mass. 2012) held: By choosing not to limit the residence qualified for exemption under § 522(d) to a principal or primary residence, Congress presumably intended to encompass a broader category than principal residences, namely any residence . . . . To sum up, on the date of their bankruptcy petition the [debtors] owned two residences, one in Massachusetts and one in Maine. They used them both. They were entitled to exempt either one, but only one, under § 522(d)(1). See also In re Demeter, 478 B.R. 281 (Bankr. E.D. Mich. 2012); In re Gandy, 327 B.R. 807 (Bankr. S.D.Tex. 2005). But the New Jersey Bankruptcy Court in In re Stoner, 487 B.R. 410 (Bankr. D.N.J. 2013) read the term "residence" in a manner "requiring some measure of permanence." I couldn't find any cases from New York discussing this issue, making it difficult to determine whether a New York bankruptcy court would allow the debtors to apply the federal homestead exemption to their Florida home. But given that the exemption is capped at only $22,975, it is unlikely to have a significant impact on the bankruptcy. New York Homestead Exemption The New York homestead exemption is more generous than the federal exemption. It provides exemptions capped between $75,000 to $150,000. However, it is limited to property located within New York and used as a primary residence. As such, the Florida property is not subject to the exemption. New York Civil Practice Law and Rules § 5206: Property of one of the following types, not exceeding one hundred fifty thousand dollars for the counties of Kings, Queens, New York, Bronx, Richmond, Nassau, Suffolk, Rockland, Westchester and Putnam; one hundred twenty-five thousand dollars for the counties of Dutchess, Albany, Columbia, Orange, Saratoga and Ulster; and seventy-five thousand dollars for the remaining counties of the state in value above liens and encumbrances, owned and occupied as a principal residence, is exempt from application to the satisfaction of a money judgment, unless the judgment was recovered wholly for the purchase price thereof: a lot of land with a dwelling thereon, shares of stock in a cooperative apartment corporation, units of a condominium apartment, or a mobile home.
Almost certainly the answer to this is no because SB.8 talks of the $10K as being (minimum) statutory damages. (The actual provision 171.208(b)(2) is for damages &quot;not less&quot; than $10K, i.e. the court can award more in the first suit.) If e.g. someone breaks the Fair Debt Collection Practices Act by making spurious claims against a group of people, they are each entitled to up to $1,000 statutory damages each (and class action is specifically allowed/mentioned). Generally, you can't avoid paying damages to an injured party by paying them to someone unrelated (before). There's nothing in SB.8 to suggest otherwise, the wording is: a court may not award relief under this section in response to a violation of Subsection (a)(1) or (2) if the defendant demonstrates that the defendant previously paid the full amount of statutory damages under Subsection (b)(2) in a previous action for that particular abortion performed Only proof of payment (not even having lost another suit on the same incident in another county) precludes a judge from awarding the statutory damages. (Claimants can file suits in their county of residence per 171.210, which me not knowing the Texas civil procedure too well, seem to allow multiple parallel lawsuits to proceed.) Now SB.8 is special in that limits relief to the first who sues (or maybe the first who wins) while enabling a very large class to claim injured status and sue... which in itself doesn't make a lot of sense when speaking of statutory damages, but it's a novel kind of relief, so who knows what courts may decide. (It would be interesting if a court determined that that first-claimant limit in SB.8 is unconstitutional, under either Texas or federal constitutions. In some other state laws, there is sometimes a limit on the total amount of damages out of a single incident, but it's not awarded on a first-winner basis, instead there's a provision to &quot;allocate to each claimant his equitable share of the total&quot;.) Granted a defendant could come with a legal strategy that look something like: when sued in Texas county arrange for a &quot;friendly&quot; organization (members) to immediately sue in another county. Fight the first lawsuit so as to delay judgement, but immediately concede the one from the &quot;friendly&quot; organization members, so that only the &quot;friendlies&quot; get the statutory damages (first), possibly e.g. donating them back to the defendant thereafter. Whether this would work really depends on details in the Texas civil procedure law, which I'm not too familiar with.
A lien is used to prevent sale of a property until a debt is paid. This has nothing to do with priority over a mortgage. The HOA agreed to release the lien for some payment. The negotiation of that payment doesn't matter to the new buyer. Once the lien is released, then it is no longer listed with the county on the property, so the property can now be sold. The former lienholder cannot now apply a new lien to the property because the new owner is not a debtor to the former lienholder. This would be a terrible way to manage property sales, and no mortgage company would allow a mortgage for a property that could not be sold in case of foreclosure, which is likely why the mortgage holder was a private individual. It is possible for a new owner to take on existing liens, but this would be clearly spelled out in purchase documents. There should be a statement on the title search results that no liens exist.
Bob has to sue in a court of competent jurisdiction To enliven jurisdiction, there has to be some connection between the parties or the event and the jurisdiction. Since Bob, the manufacturer and (presumably) the harmful incident all took place in County X, of State Y or Country A then they are the only jurisdictions that might be competent. The courts of County Z, State M or Country B are all going to say &quot;not my problem&quot;. For the USA, there are only State courts and Federal courts. States may have courts that are called county courts but they are enlivened by the state sovereign - counties and cites are self-governing administrative districts, not sovereign states. Federal courts have jurisdiction where the subject matter is about a Federal Statute, the Constitution or a treaty. This dispute would appear to be based on tort or contract law which is a state matter. Federal courts can have jurisdiction if the parties are in different states and the amount in dispute is more than $75,000. This would not appear to be the case. So, as a state matter, the plaintiff can bring the case to any competent court. The defendant can apply to have it moved to a more convenient court. Arguments will be heard and, at some cost, you'll probably end up where you should have started.
Off the top of my head, unless there's a provision that says otherwise, no, they cannot do that. Obviously, I can't tell you if there's a provision that says otherwise. Consult a lawyer for more specific advice.
Could you insure yourself either given the fact that- you bought the property on mortgage? A mortgage does not generally have the legal effect of insurance. You owe the debt to the lender, which is a strict liability obligation, without regard to the value of the collateral. So, if the collateral is devalued, you still owe the debt, whether or not the lender forecloses. For example, if you sell the property for less than the amount of the debt (i.e. a short sale), you remain personally liable for the deficiency between the proceeds of the sale, and the amount owed on the debt, unless the lender consents. The exception to this is a "non-recourse mortgage", which is a mortgage in which the lender expressly agrees to accept the collateral as the sole means from which the debt can be repaid in a compulsory fashion. The financial crisis of 2009 was mostly a function of a handful U.S. states like California and Florida with economically important mortgage markets having residential mortgage loans that were as a matter of law, non-recourse debts (or nearly non-recourse debts) compounded by people making risky decisions knowing that they didn't face the risk of a deficiency judgment. But, non-recourse mortgage lending is very rare in the U.K. (the linked material inaccurately asserts that mortgages in "most of the United States" are non-recourse, however, when, in fact, that is true only in a small minority of U.S. states, probably not more than five state in all, although a couple of the states that are close to non-recourse for residential mortgages, like Florida and California, are economically important U.S. mortgage markets). Of course, even in the case of a debtor who is obligated on a full recourse mortgage, it may be in the interest of the lender to write off the deficiency judgment, rather than seeking to recovery the debt from the borrower, if the borrower is apart from the collateral, judgment-proof or very nearly so. The lender is taking the risk that both the collateral will be insufficient and that the borrower will also be unable to pay the debt, and when that happens the lender takes a loss. Or is there any insurance which could protect you against massive downfall in any Unforseen compulsory purchase situation. In the United States, lenders often buy what is called "mortgage insurance" at the expense of the buyer, when the down payment on the property is under 20% of the purchase price, that remains in force until 20% of the purchase price has been paid through a combination of a down payment and principal payments on the loan. But, this form of insurance is not generally available to property owners themselves as a matter of economic reality, possibly because it is an uninsurable risk, and possibly because there isn't enough economic demand for it at prices that would make it profitable to do so. Also, when a lender receives a payment on a mortgage insurance policy, the insurance company receives in exchange, all of the rights that the lender had to sue the borrower for a deficiency judgment, if any. These are called the insurance company's "subrogation rights." I have certainly also never seen any form of insurance for an unfavorably bad outcome in an eminent domain/condemnation proceeding for any reason. In a case like that the court determines as a matter of law (in one of the few proceedings where there is still a right to a jury in the U.K.) what the fair market value of the property is at the time of the condemnation, and that determination would complicate recovery on any insurance policy because you would need to have a proof of the loss. Generally speaking, a mere decline in the fair market value of real estate, in and of itself, it not considered to be an insurable loss, of the owner of the real estate, for insurance law purposes. Bonding A very close cousin of insurance contracts are bonding contracts. When a third party is unsure that you will be able to perform a contract or pay a debt, you can encourage them to do business with you by having a bonding company agree to meet your obligations up to a certain dollar amount if you are unable to do so, usually, in exchange for a fee, a right to sue you if they have to make a payment for the amount that they had to pay, and sometimes for some sort of collateral to protect them against the risk that they are taking. But, bonding companies don't generally provide bonds for residential mortgage customers at any price, because someone who needs a bond on a debt like that is unlikely to be able to ever repay the bonding company for its loss if it does have to pay the mortgage debt, and because bonding companies would need to set aside too much money as financial reserves against this risk to be prepared in the event that it had to pay a lot of claims due to collapsing real estate price bubble or something like that. Or is there any way to mitigate this risk / avoid this risk? Option To Sell Contracts On the buyer's side the primary "insurance-like" legal instrument would be for the buyer to purchase from a third-party a legal option to sell the property at a specific price that is lower than the current purchase price. Such an option would probably be legal to enter into, and, with the proper regulatory compliance and financial disclosures, a firm could sell such options to residential property buyers. But, as a matter of practical economic reality, I have never encountered a transaction in which someone actually did that with an unrelated third-party in an arms-length business transaction. In the financial crisis of 2009, secondary market mortgage debt buyers had purchased options to hedge against just this kind of risk, but the counterparties who were obligated to cover the losses pursuant to those options didn't have sufficient reserves and other assets to cover the losses that they were obligated to pay, and so the people who had purchased these options were stiffed anyway. This is because prominent credit rating firms for businesses (of which there were only three or four in the United States) failed to properly evaluate the fact that the risk of one claim under this kind of option was not independent of the risk of other claims under similar options happening at the same time, and in general, failed to accurately evaluate the risk of counterparties being unable to perform their sides of the contracts because the counterparties were be prominent financial companies that had never failed before. But, faced with this situation, almost every investment bank in the United States either went bankrupt or was acquired by another financial company that was not allowed to engage in this kind of derivatives transaction. Mortgage insurance companies, in contrast, paid all of the claims against them, because state insurance regulators had adequately evaluated the risks and forced the mortgage insurance companies to set aside adequate reserves to pay claims in the event of a situation like the 2009 financial crisis. But, because the need to set aside reserves made mortgage insurance (which also had premiums that were not tax deductible to the property owner) made mortgage insurance more expensive than having the same bank give someone both a first mortgage and a higher interest second mortgage on a residence, and then entering option contracts to control their risk of loss in the event of a real estate devaluation that made the second mortgage uncollectible, mortgage insurance companies had a pretty low market share of the financial services providers who were addressing the property devaluation risk for mortgage lenders. Long Term Leases In Lieu Of Purchasing With A Mortgage Another alternative would be to enter into a favorable long term lease of the property, which would be owned by somebody else, rather than actually buying it. If the lease had a term automatically terminating upon a compulsory purchase such as an eminent domain proceeding, the landlord and not the tenant, would bear the risk of loss in the event that the property bad massively devalued due to a change in prevailing market prices (although the landlord would also benefit in the event of massive appreciation at the termination of the lease, although that might be long in the future). This would be an extremely uncommon arrangement for someone to make with their own residence, but isn't unthinkable. For example, over in Ireland, the Guinness Brewing Corporation rents rather than owns most of the real estate that it used on long term 999 year leases (if I recall correctly), possibly out of concern for this possibility, which was a very real one at the time that those leases were put in place. Similarly, my childhood home in a university town was built on land leased from the university on a 99 year lease in the 1960s or 1970s, that was later converted to absolute ownership of the land by my faculty and administrator parents about fifty years into the original lease by mutual agreement between the university and the original home builder. But, that wouldn't really be strictly analogous, because the house was purchased by my parents subject to a full recourse mortgage secured by the building and their rights as tenants on the land lease, so they weren't really protected from a mass devaluation of the property. The transaction didn't really hedge against an economic downturn. Instead, it effectively gave the university the right to buy back the land at the cost of compensating my parents for the value of the residence built on that land, if it wanted to expand. But, it would still probably be possible and legal to enter into a long term lease whose terms did hedge against that possibility, possibly with an option to buy the premises after a certain number of years long in the future when devaluation relative to the purchase price was much less likely to due gradual annual appreciation and inflation over that time period (e.g. 40 years out), if you could find someone willing to serve as a landlord in that kind of deal. Caveat Regarding Taxation The way business transactions are structured is frequently heavily driven not just by the underlying economic effect of the transactions, but also by the tax implications of the transactions. But, I am not familiar enough with the tax laws of the United Kingdom to evaluate that piece of the puzzle. In the context of the question, the most viable alternative to limit risk downside devaluation risk would be to enter into a long term lease rather than buying the residence. But, that only makes sense if there are not big tax benefits to owning a residence with a mortgage as opposed to leasing one. In the United States, there are huge tax incentives to buy rather than lease. But, I don't know if there are similar tax incentives in the United Kingdom that might make a long term lease solution less attractive. For example, a large share of all businesses in the United States lease rather than own the real property that they use, and a large share of skyscrapers and other high rise buildings in the United States are built on leased land. But, those transactions are structured as long term leases, rather than purchase transactions, primarily for tax reasons. Under U.S. tax law, businesses can't treat money spent to purchase raw land or principal payments on mortgages as an expense for tax purposes, but can treat the full amount of any lease payment the business pays to a landlord as an expense for tax purposes. So, transactions are structured accordingly. For example, in a high rise transaction, the building owner pays the fully deductible long term land lease payment to the owner of the land (usually a non-profit that isn't worried about having taxable income not matched by an expense deduction), while the building owner can make up for not being able to deduct principal payment expense on the construction loan by being able to take depreciation deductions on the building itself as an expense in a similar amount. The non-profits usually don't borrow the money to buy the land that they lease to high rise owners. Instead, this is an investment option for cash rich, stable non-profits that need to find a way to get reliable, low risk, long term passively managed returns on their investments. And, the risk of devaluation is much lower for a long term investor with a forty year time horizon than it is for property owner with a shorter time horizon. But, without these tax incentives, there would be far less real estate leasing by businesses in the United States, and a desire to hedge against significant real estate devaluations is a far more secondary reason for businesses to lease of real estate in the United States.
Is this true? Yes. can someone explain how this might work? You can form an LLC, and then fund it with money that would be used to purchase the home, and buy the home in the name of the LLC. One minor exception is that a handful of rural U.S. states prohibit limited liability entities from owning farm land, so if the home is part of a farm or ranch, this could be prohibited in those states. If there is a mortgage, this is more difficult, but not impossibly so. The primary debtor on the mortgage would be the LLC. Ordinarily the owner of the LLC would be required by the bank to guarantee the mortgage, but loan guarantees do not necessarily have to be made a matter of public record. If the LLC has only one member, it is disregarded for income tax purposes, so that isn't a problem. There may be issues in this case of a house not qualifying for residential property tax treatment in some cases (which is often a lower rate than commercial real estate). There is also sometimes an issue that property owned by an LLC isn't eligible for a &quot;homestead exemption&quot; of equity in the home from creditor's claims. It may also be treated differently in terms of eligibility for means-tested benefits like Medicaid nursing home coverage. But, it is allowed. I ask the question, for it seems to me that it should not be difficult to find out who the owner of any given LLC is. In the U.S., the owners of a manager managed LLC are rarely disclosed in the public record (although about half of U.S. states require one or all of the members of a member managed LLC to be disclosed). But all U.S. states allow LLCs to be manager managed. Also, all U.S. states are required as a matter of constitutional law to all LLCs organized in a state other than the state where the LLC owns real property or operates to do business in that state. States can imposed regulations on out of state LLCs to some extent, however. The main exception to these general rules is California. Although the California Articles of Organization do not list the members of the LLC in the Artiles, California requires the LLC to file a Statement of Information within 90 days of the approval of the LLC. The Statement of Information does require a list of the LLC's members, and it does become public record. Records of LLC ownership are maintained in the private internal records of the LLC. A contact person, called a registered agent and sometimes the managers of the LLC with authority to act on its behalf must be publicly disclosed, but neither of these posts has anything to do with ownership. Many states also require the &quot;organizer&quot; of the LLC to be disclosed, but that doesn't have to be an owner of the LLC either. Often it is a lawyer or accountant for the LLC. It will be necessary to disclose the ownership to federal tax officials, and often also to state tax officials. Also, soon, under a newly enacted federal law that has not yet taken effect because regulations have not been written, to federal money laundering officials. But, both of these pieces of information are confidential and not available to the general public. This information can be obtained by subpoena in pertinent litigation, however, must often be disclosed when filing federal lawsuits, and is often required to be disclosed by counter-parties in business transactions. Footnote The U.S. practice is not the global norm. In most civil law countries, for example, ownership interests in entities need to be reflected in a notarized document kept in the custody of the notary involved. In recent times, interests in transparency and avoiding tax evasion and money laundering for terrorism and crime have promoted additional, less decentralized records of entity ownership.
It is a false statement to claim to live in one county when you actually live in a different one. It becomes perjury (a crime) when you falsely swear to that statement on your status report, and you are required to report changes in &quot;household situation&quot; within 10 days. There isn't an exception allowing you to give a false address &quot;in case it costs more to report truthfully&quot;. The only legal solutions are to report truthfully and pay more, or move again, report truthfully, and not pay more.