Debtor Who is Neither a U.S. Citizen nor a Permanent Resident May Claim Florida’s Homestead Exemption

Debtor Who is Neither a U.S. Citizen nor a Permanent Resident May Claim Florida’s Homestead Exemption

Ordinarily, a debtor who is not a U.S. citizen cannot legally formulate the intent to reside here permanently for homestead purposes unless the debtor is a permanent resident as of the petition date. Here, the Debtor was not a permanent resident as of the petition date. So she cannot legally intend to reside here permanently.

The Debtor is a Colombian citizen. It appears she came to the United States, along with her daughter, sometime before 1997. Her initial basis for entry into the U.S. is unclear. But in June 1997, the Debtor married a U.S.citizen, which would have made her immediately eligible for conditional permanent residence. In two years, she could have had those conditions removed, making her eligible for permanent residence—i.e., a “green card.” For some reason, perhaps be
cause her marriage ended after only a few years, the Debtor never obtained her green card.
It is undisputed that the Debtor has been living in the U.S.since 2008 or so. The Debtor currently lives in her home in Tampa, Florida, with her 30-year-old daughter, who was a permanent resident at the time this case was filed, as well her four-year-old granddaughter, who is a U.S. citizen.
In 2015, the Debtor filed for chapter 7 bankruptcy. In her schedules, the Debtor claimed the her home  as an exempt homestead. There is no dispute the Debtor currently lives at the
property and that she (subjectively) intends to reside there. Although she will be eligible for a green card once her daughter becomes a citizen, which is expected to happen soon, the Debtor was not a permanent resident at the time she filed this case.
The Trustee objected to the Debtor’s homestead exemption. Because the Debtor was not a permanent resident at the time she filed, the Trustee says the Debtor cannot legally form the intent to reside property permanently, which the Trustee argues is a requirement to claim the homestead exemption. The Court must now decide whether the fact that the Debtor was not a permanent resident as of the petition date bars her from claiming the homestead exemption.

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