Florida/Georgia Personal Injury & Workers Compensation

...egate exemption of $2,000. Fla. Const. art. X, § 4(a)(2); In re Howe, 241 B.R. 242, 245 (Bankr.M.D.Fla.1999); In re Moody, 241 B.R. 238, 241 (Bankr.M.D.Fla.1999). Likewise, each spouse is entitled to a $1,000 exemption for an automobile. Fla. Stat. § 222.25(1) (2006)....

...*90 MEMORANDUM DECISION ON TRUSTEES' OBJECTIONS TO DEBTORS' CLAIMS OF EXEMPTIONS MICHAEL G. WILLIAMSON, Bankruptcy Judge. The Trustees' objections to the Debtors' claims of exemptions in these three cases present issues as to the interpretation of the expanded personal property exemption recently enacted under section 222.25(4) of the Florida Statutes. [1] This provision adds a new subparagraph four to section 222.25, [2] which provides: "[t]he following property is exempt from ....

...Rather, the focus in these cases is on the second exclusion from the availability of this exemption, which applies where a debtor — even though not claiming the exemption — does nevertheless ". . . receive the benefits of a homestead exemption under s. 4, Art. X of the State Constitution." Fla. Stat. § 222.25(4) (2007)....

...vor of providing the benefits of the exemptions to debtors. Havoco of Am., Ltd. v. Hill, 790 So.2d 1018, 1021 (Fla.2001) (quoting Milton v. Milton, 63 Fla. 533, 58 So. 718, 719 (1912)). Then the Court should look to the words used in Florida Statute 222.25(4), as statutory interpretation begins with the language of the statute itself....

...g it in Schedule C. None of the Debtors in these cases have made such a claim. Instead, they have elected to surrender their homes. Accordingly, they cannot receive the benefits of the Florida constitutional homestead exemption within the meaning of 222.25(4), Florida Statutes....

...Consequently, they are entitled to claim the Statutory Personal Property Exemption. B. Stacking of Statutory and Constitutional Exemptions Having decided that the Debtors are entitled to claim $4,000 in personal property as exempt under Florida Statute 222.25(4), the Court must next resolve whether the Debtors can stack this exemption on top of the existing $1,000 personal property allowance provided by section 4, article X of the Florida Constitution to claim up to $5,000 in personal property as exempt. The Trustees contend that Florida Statute 222.25(4) increases the amount of personal property exemption to a total of $4,000, instead of the $5,000 claimed by the Debtors. They assert that in enacting Florida Statute 222.25(4), it was the intent of the Legislature to raise the existing exemption found in section 4, article X of the Florida Constitution from $1,000 to $4,000....

...In support of this proposition, the Trustees cite to the legislative history contained in the Florida Senate Professional Staff Analysis and Economic Impact Statement ("Senate Legislative History"), which *94 refers to the new legislation as amending section 222.25 "to increase to $4,000 from $1,000 the amount of the personal property exempt from creditor claims....

...ing result as the Florida House Professional Staff Analysis and Economic Impact Statement ("House Legislative History") is inconsistent with the Senate Legislative History. In this regard, the House Legislative History states that the new law amends section 222.25 "to add an additional exemption ....

...The Legislature has no power to alter or amend a constitutional provision. Id. at 415. The only method by which the Florida Constitution can be altered or amended is by a constitutional amendment pursuant to section 5 of article XI of the Florida Constitution. Id. Finally, as discussed above, new section 222.25(4) is not ambiguous....

...Under chapter 222, debtors routinely claim and are allowed additional exemptions up to $1,000 in a motor vehicle, interests in professionally prescribed health aids, and traceable earned interest in a tax refund — in addition to claiming exemptions under section 4, article X of the Florida Constitution. Fla. Stat. § 222.25(1)-(3) (2007). There is nothing in the plain language of section 222.25(4) that supports a contrary interpretation. That is, if section 222.25(4) was intended to be used exclusive of the existing Constitutional Personal Property Exemption, the statute could have been drafted to read: "if the debtor does not claim or receive the benefits of a homestead exemption or personal property exemption under s....

...X, § 4(a)(2); In re Howe, 241 B.R. 242, 245 (Bankr.M.D.Fla.1999); In re Moody, 241 B.R. 238, 241 (Bankr.M.D.Fla. 1999)). Likewise, each spouse is entitled to a $1,000 exemption for a motor vehicle, resulting in an aggregate automobile exemption of $2,000. Id. (citing Fla. Stat. § 222.25(1) (2006))....

...they are surrendering their respective homes, they will receive no benefit of the homestead exemption under section 4, article X of the Florida Constitution. As a result, they are entitled to the Statutory Personal Property Exemption provided for by section 222.25(4), Florida Statutes....

...NOTES [1] This new provision is effective July 1, 2007, and thus would apply to all cases filed on or after that date. See, e.g., In re Fodor, 339 B.R. 519 (Bankr.M.D.Fla.2006) (the date on which the debtor files the petition is the date that controls what exemptions are available). [2] The entire section 222.25, Florida Statutes, is titled: "Other individual property of natural persons exempt from legal process." [3] This Court has jurisdiction of this matter under 28 U.S.C....

...ad exemption from forced sale and judgment lien provided in the bankruptcy context. The tax exemption for a homestead is found in article VII, section 6 of the State Constitution, not article X, section 4, the provision referenced in Florida Statute 222.25(4)....

...The amount of attorney's fees and costs shall be assessed by affidavits submitted by the parties herein, within 30 days from the date of this judgment. 9. The Court reserves jurisdiction to enforce the injunctive provisions of this judgment. NOTES [1] Indicating Florida Constitution, Article X, § 4. [2] Fla.Stat. § 222.25(1) (1993)....

...MEMORANDUM OPINION SUSTAINING TRUSTEE'S OBJECTION TO DEBTOR'S PROPERTY CLAIMED AS EXEMPT KAREN S. JENNEMANN, Bankruptcy Judge. The Chapter 7 trustee objects to the debtor's request to exempt personal property in the amount of $4,000 made pursuant to the expanded personal property exemption recently granted in new Section 222.25(4) of the Florida Statutes, which provides: The following property is exempt from legal process ....

...y exemption. *201 The facts are undisputed. On October 20, 2007, the debtor filed this Chapter 7 bankruptcy liquidation case. In Schedule. C, which lists exempt property, the debtor claimed a $4,000 exemption in his car, a 2004 Audi A-4, pursuant to Section 222.25(4) of the Florida Statutes (Doc....

...nancy by entireties law. The only logical reason he did not claim the constitutional homestead protection is because he would like to both keep his home and simultaneously receive the additional $4,000 personal property exemption recently granted in Section 222.25(4) of the Florida Statutes. The primary issue is whether the debtor qualifies for this new exemption. Section 222.25(4), Florida Statutes (the "Statutory Personal Property Exemption") provides a new $4,000 personal property exemption to debtors, subject to two exclusions....

...l Property *205 Exemption. If, on the day a bankruptcy petition is filed, a debtor owns a home, lives in the home, and plans to reside in the home in the future, the debtor cannot claim the Statutory Personal Property Exemption. The plain meaning of Section 222.25(4) supports this result....

..., if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed." Inhabitants of Montclair Tp. v. Ramsdell, 17 Otto 147, 107 U.S. 147, 2 S.Ct. 391, 395, 27 L.Ed. 431 (1883). The language of Section 222.25(4) provides two exclusions — one for debtors who affirmatively "claim" constitutional protection, and one for debtors who "receive the benefits Of' the Florida Constitution....

...aning. The concept of "claim[ing]" a homestead exemption pursuant to Section 4, Article X of the Florida Constitution therefore is different than "receiv[ing] the benefits of" a homestead exemption pursuant to that provision. The key to interpreting Section 222.25(4) is to define what it means to "benefit" from the constitutional homestead protection....

...debtor actually has realized the advantage. If a person acquires "some legal right to which he would not otherwise have been entitled," the person has received a legal "benefit." In this case, the privilege, advantage, or legal right referred to by Section 222.25(4) is the legal right protecting a home from process, lien, or levy by Section 4, Article X of the Florida Constitution....

...He meets both the objective and subjective tests for the homestead exemption and, as such, receives a benefit under the Florida Constitution and is excluded from using the Statutory Personal Property Exemption. This result is logical and not absurd. Section 222.25(4) provides that a homeowner may not use the Statutory Personal Property Exemption if they either affirmatively "claim" the constitutional homestead exemption or could claim the benefit on the petition date....

...d property to claim the Statutory Personal Property Exemption. The only debtors who are excluded are those who retain their homes with or without affirmatively claiming the homestead exemption. Two sister courts also have found the plain language of Section 222.25(4) contemplates receipt of a benefit by a debtor even where the debtor does not affirmatively claim a constitutional homestead exemption at the time of a bankruptcy filing....

...In Gatto, three individual debtors claimed the Statutory Personal Property Exemption. All were homeowners. None claimed the Florida Constitutional homestead exemption, electing instead to surrender their homes. Upon objection by the trustee, the bankruptcy court, relying on the plain language of Section 222.25(4), found that the debtors did not receive any benefit from the homestead exemption only because the debtors had elected to surrender their homes....

...Id. at 2. Based on this belated surrender, the debtor then sought to use the Statutory Personal Property Exemption. Finding factual issues precluded a finding that the debtor actually intended to surrender the home and relying on the plain meaning of Section 222.25(4), the Court held the debtor did receive the benefit of the constitutional homestead protection and was not entitled to the new personal property exemption....

...In the legislative committee reports, which are "proper sources of information in ascertaining the intent or meaning" of a statute, Rabren v. Board of Pilot Com'rs, 497 So.2d 1245, 1248 (Fla.App. 1 Dist.1986), the Florida Senate Professional Staff Analysis and Economic Impact Statement says this about the proposed § 222.25(4): III....

...The intention of the proposed subsection as expressed by the committee report is clear. The Statutory Personal Property Exemption is available only to "persons without homestead property[.]" Id. The corresponding Florida House of Representatives staff Analysis report merely recites the statutory language. [5] In enacting Section 222.25(4), however, both branches of the Florida Legislature relied on a research proposal drafted by the Business Law Section of the Florida Bar, with the assistance of a University of Florida law student group. Douglas W. Neway and Jeffrey Davis, Report of the Bankruptcy/UCC Committee of the Business Section of the Florida Bar: Proposed Amendment to Personal Property Exemption Statute Fla. Stat. Section 222.25 ("PPE Proposal") (August 7, 2006) (on Me with Professor Jeffrey Davis, University of Florida College of Law)....

...thereby forfeit the Statutory Personal Property Exemption. Certainly, the PPE Proposal does not in any way suggest that sophisticated debtors can claim the new personal property exemption and still retain their homestead. The legislature in enacting Section 222.25(4) considered the reasoning of the PPE Proposal and, by approving the two exclusions, contemplated that homeowners cannot claim the new exemption. The legislative history, therefore, is consistent, not contrary, with the Court's reading of the plain language of 222.25(4) — a debtor "receives the benefit" of the constitutional homestead exemption if they claim or are entitled to claim the benefit on the date they file bankruptcy, regardless of whether they have access to another legal device by which to pro...

...However, because the debtor was entitled to claim the benefit of Section 4, Article X of the Florida Constitution on the date he filed the petition for bankruptcy, this Court holds *209 that he is not also entitled to claim the Statutory Personal Property Exemption provided by 222.25(4)....

...by the entireties argument — that since he has no need of the Florida Constitution's protection, he receives no benefit thereby. This argument fails for the same reason his tenancy by the entireties argument failed. The debtor, for the purposes of Section 222.25(4), receives the benefit of Section 4, Article X of the Florida Constitution if he is entitled to claim the homestead exemption at the time he files his bankruptcy petition, regardless of his equity in the home or the value of the house....

...egal sense. Williams v. Dickenson, 28 Fla. 90, 9 So. 847, 849 (1891) (disapproved of on other grounds by, Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906)). [5] The corresponding House of Representatives Staff Analysis reads: . . . The bill amends s. 222.25, F.S., to add an additional exemption ....

.... to include personal property up to $4,000, provided that the debtor does not receive the homestead exemption under the State Constitution . . . Fla. House of Rep. Staff Analysis CS/SB 2118 (2007). [6] The amendment resulting in the new subsection § 222.25(4) was the result of a research project conducted by the Association of Law and Business (ALB) at the University of Florida Levin College of Law, at the request of the Bankruptcy/UCC Committee of the Business Law Section of The Florida Bar....

...Bankruptcy/UCC Committee. The report was approved by the Executive Council of the Business Law Section on August 13, 2006. The Report then was sent as the PPE Proposal to the legislature for consideration. Eventually, the Florida Legislature enacted Section 222.25(4), which became effective on July 1, 2007.

...X, § 4, Fla. Const. Bank account (Enterprise) $8 Art. X, § 4, Fla. Const. Books, silver dollars $90 Art. X, § 4, Fla. Const. Wearing Apparel $100 Art. X, § 4, Fla. Const. Watch, Wedding ring $100 Art. X, § 4, Fla. Const. 1986 Honda $1,000 Fla.Stat. § 222.25 Schwab and Peak IRAs $68,996 Fla.Stat....

...These secured claims are in the form of two mortgages. The real property is not listed as exempt on Schedule C. [D.E. 1]. On Schedule C the Debtor lists personal property exemptions totaling $4090.00. Of the listed exemptions $3090.00 is claimed exempt pursuant to Fla. Stat. § 222.25(4).[D.E....

...s. [D.E. 20]. Interestingly, on the amended statement of intention the Debtor still seeks to reaffirm the smaller of the two mortgages. [D.E. 20]. The Trustee has objected to the Debtors claim of exemption of personal property pursuant to Fla. Stat. § 222.25(4)....

...l property exemption. *920 The Debtor contends that he has abandoned his interest in the real property and as such, he is not receiving any benefits from it. Therefore he claims, he is entitled to the larger personal property exemption of Fla. Stat. § 222.25(4), because he has not claimed the homestead exemption and due to the abandonment he is not receiving the benefits of the exemption....

...In this case the Debtor has from the date of the petition intended to reaffirm at least one mortgages. Further for many months the Debtor intended to reaffirm both mortgages and at the same time claimed the larger personal exemption. These contradictory actions are incompatible with the statute (Fla.Stat. § 222.25(4)). The intent of the statute appears to be to give a debtor who lacks homestead protections some extra personal exemptions. See Proposed Amendment to Personal Property Exemption Statute Fla. Stat. § 222.25, Bankruptcy/ UCC Comm....

...ORDER SUSTAINING TRUSTEE'S OBJECTION TO DEBTOR'S CLAIMED EXEMPTIONS LEWIS M. KILLIAN, JR., Bankruptcy Judge. THIS MATTER was heard February 28, 2008 on the Trustee's Objection to the Debtor's Claimed Exemptions (Doc. 23). The Debtor has claimed the $4,000 "wildcard" personal property exemption in section 222.25(4) of the Florida Statutes, which is provided to debtors who do not claim or receive the benefits of the homestead exemption under Section 4, Article X of the Florida Constitution....

...ms in the amount of $149,079.00. The parties agree that there is no equity in the property. The Debtor did not claim the home as exempt in Schedule C, instead electing to claim an exemption in $4,000 worth of personal property pursuant to Fla. Stat. § 222.25(4)....

...The Debtor did not indicate whether the home will be surrendered, reaffirmed, or redeemed in his Statement of Intention; rather, the Debtor, who is divorced, stated that he will retain the home and continue to make the regular payments on it. Discussion Florida Statute § 222.25(4) (2007) was enacted to provide debtors who do not directly or indirectly take advantage of the constitutional homestead exemption with an additional $4,000 personal property exemption. Section 222.25(4) provides that a debtor may exempt up to $4,000 in personal property "if the debtor does not claim or receive the benefits of a homestead exemption under s. 4, Art. X of the State Constitution." Since the Debtor in this case has not claimed the homestead as exempt, the question is whether he receives the benefits of the constitutional homestead exemption. The cases that have construed Fla. Stat. § 222.25(4) have provided cogent analyses of the language of the statute which need not be repeated here....

...empt combined with the surrender of their homes meant that they did not receive the benefits of the constitutional homestead exemption, and therefore the debtors were entitled to claim the $4,000 wildcard personal property exemption under Fla. Stat. § 222.25(4)....

...the property. Morales, 381 B.R. at 921, 923. Since the debtor had not properly and timely shown a clear and unambiguous intent to abandon the homestead, the trustee's objection to the debtor's claim of the pernal property exemption under Fla. Stat. § 222.25(4) was sustained....

...In Shoopman, the debtor initially indicated his intention to reaffirm two mortgages on his home but then amended his Statement of Intention to indicate that he would surrender the property. Overruling the trustee's objection to the debtor's claim of the personal property exemption in Fla. Stat. § 222.25(4), the Shoopman court rejected the arguments that a debtor receives the benefits of the constitutional homestead exemption by continuing the occupy the home and that a debtor does not stop receiving the benefits of the homestead exemption until the home is abandoned....

...In re Hernandez, 2008 WL 1711528 (Bankr.S.D.Fla.2008) disagreed with Franzese, though it reached the same result. The Hernandez court rejected the notion that mere eligibility for homestead protection should preclude a debtor from claiming the personal property exemption in Fla. Stat. § 222.25(4)....

...If the Debtor retains possession of the homestead while also claiming the additional wildcard personal property exemption, he would be able to shield the home from creditors under Art. X, § 4, Fla. Const, and protect additional personal property under Fla. Stat. § 222.25(4) at the same time. The Florida Legislature did not intend this result — a debtor cannot keep a home and also receive the enhanced personal property exemption under Fla. Stat. § 222.25(4)....

...Since creditors are prevented from obtaining judgment liens against his homestead, the Debtor does receive the benefits of Florida's constitutional homestead exemption. Accordingly, I conclude that in order for a debtor who has an interest in a homestead to claim the $4,000 personal property exemption under Fla. Stat. 222.25(4), the debtor must (1) not claim the property as exempt, and (2) timely and properly show a clear and unambiguous intent to abandon the property....

...at 921, 923; see Gatto, 380 B.R. at 90, 95; Franzese, 383 B.R. at 204-05. Since the Debtor in this case has not shown a clear and unambiguous intent to abandon the homestead property, he is not entitled to the $4,000 personal property exemption under Fla. Stat. 222.25(4)....

...vidual who does not "claim or receive the benefits of a homestead exemption under s. 4, Art. X of the State Constitution" ("Homestead Exemption") is entitled to claim an additional $4,000 of personal property as exempt from legal process. Fla. Stat. § 222.25(4) (2007) ("Statutory Exemption")....

...or State or local law that is applicable on the date of the filing of the petition...." 11 U.S.C. § 522(b)(3)(A). The Statutory Exemption became effective on July 1, 2007, before any of these Debtors filed their petitions for relief. See Act of June 19, 2007, 2007 Fla. Sess. Law Serv. 185, sec. 1 (West) (amending Fla. Stat. § 222.25)....

...For purposes of applying the Florida Statutory Exemption, this Court must make a determination partly of fact as to whether the debtor is claiming or receiving the benefits of the Homestead Exemption in the context of the bankruptcy case. See Fla. Stat. § 222.25(4). So long as a debtor's amendment of Schedule C, Property Claimed as Exempt is not prejudicial to creditors, it will be allowed and may, in itself, by the terms of the Statutory Exemption, change a debtor's entitlement. See Fla. Stat. § 222.25(4) ("claim ......

...Bell advised the Debtors they were entitled to a $1,000 automobile exemption and a $1,000 personal property exemption for the filing of a Chapter 7 bankruptcy. In 1993, the Florida Legislature amended Section 222.11, Fla.Stat., providing additional exemptions, including Section 222.25(1), Fla.Stat....

...Following the decision in Porter, if the Debtors incurred unsecured debts prior to October 1, 1993, they would be limited only to the exemptions available prior to October 1, 1993, and would not be able to take advantage of the automobile exemption provided by Section 222.25(1), Fla.Stat....

...7015(d) [6] as grounds to grant the Debtors their exemption. These contentions will be addressed even though they were not properly raised during an evidentiary hearing. The amicus first contends the motor coach is exempt as a "professionally prescribed health aid" pursuant to Fla. Stat. section 222.25(2)....

...The Debtors' filed for Chapter 7 protection on May 9, 1996, and filed their original bankruptcy schedules on June 14, 1996. On their schedules, the Debtors claimed the following properties as exempt pursuant to Florida law: PROPERTY BASIS FOR EXEMPTION VALUE 1988 Montero FSA § 222.25(1) $ 1,000.00 1988 Pontiac LeMans FSA § 222.25(1) $ 1,000.00 Florida Power Art....

...718, 725 (Bankr.N.D.Tex.2006) (quoting 151 Cong. Rec. S2470 (Mar. 10, 2005)). However, most of the debtors who own a vehicle will need the extra disposable income regardless of whether they have lease or loan payments. In Florida, the exemption allowance for a vehicle is only $1,000. Fla. Stat. § 222.25(1)....

...including renewal commissions. The Debtor's bankruptcy schedules valued the commissions at $36,365.00 which the Debtor claimed exempt under Fla.Stat. 222.11. An exemption is claimed for the Debtor's 1990 Porsche 944 automobile pursuant to Fla.Stat. 222.25(1)....

...§ 222.11 (1991), the Debtor is not entitled to exempt commissions earned prior to the filing of the bankruptcy petition. The second issue for determination is whether the Debtor may utilize the exemption provisions of the new automobile exemption, Section 222.25(1) Fla.Stat. (1993), which provides a debtor with a $1,000.00 automobile exemption. The Debtor incurred unsecured debt prior to October 1, 1993 and is limited to the exemptions available under Florida law prior to October 1, 1993. As Section 222.25(1) became effective October 1, 1993, and there was no individual exemption for an automobile prior to that date, the Debtor is not entitled to the $1,000.00 automobile exemption....

...THIS CASE came before the Court for hearing to consider the Debtors' Motion for Summary Judgment as to the Trustee's Objection to Property Claimed as Exempt. The issue is whether the Debtors, Allen G. Rogers and Patricia K. Rogers, are entitled to claim certain personal property as exempt in their Chapter 7 case pursuant to § 222.25(4) of the Florida Statutes....

...In both the Response to the Trustee's Objection and the Motion for Summary Judgment, the Debtors contend that (1) they have not claimed their homestead as exempt pursuant to article X, section 4 of the Florida Constitution, and that (2) they are therefore entitled to claim the personal property exemption available under § 222.25(4) of the Florida Statutes. Discussion Chapter 222 of the Florida Statutes relates to the real and personal property that Florida residents may claim as exempt from forced sale under any legal process. Section 222.25 of the Florida Statutes is entitled "Other individual property of natural persons exempt from legal process." Subparagraph 4 was recently added to § 222.25 to provide an expanded personal property exemption to qualified debtors. The new provision, which became effective on July 1, 2007, provides: 222.25....

...(4) A debtor's interest in personal property, not to exceed $4,000, if the debtor does not claim or receive the benefits of a homestead exemption under s. 4, Art. X of the State Constitution. This exemption does not apply to a debt owed for child support or spousal support. Fla. Stat. 222.25(4). "The intent of the statute appears to be to give a debtor who lacks homestead protections some extra personal exemptions. See Proposed Amendment to Personal Property Exemption Statute Fla. Stat. § 222.25, Bankruptcy/UCC Comm....

...(2) he timely and effectively makes a statement showing his clear intention to abandon or surrender the property. In re Morales, 381 B.R. at 922, 923. See In re Martias, 2008 WL 906776 (Bankr. S.D.Fla.)(The debtor was entitled to the exemption under § 222.25(4) where she did not claim her homestead as exempt, and where she stated her intention to surrender the home on amended schedules); In re Shoopman, 2008 WL 817109 (Bankr. S.D.Fla.)(The debtor was entitled to the exemption under § 222.25(4) where he consented to relief from the stay and filed an amended Statement of Intention indicating his intent to surrender the home); and In re Gatto, 380 B.R. at 93(The debtors were entitled to the exemption under § 222.25(4) where they elected to surrender their home)....

...he debt owed to the holder of the second mortgage. Despite their apparent intent to retain the Property and continue making the mortgage payments, however, the Debtors contend that they are eligible for the expanded personal property exemption under § 222.25(4) because they did not claim the Property as exempt on their bankruptcy schedules....

...payments and retain the home. In re Magelitz, 386 B.R. at 881. The Court concluded that the debtor was receiving the benefits of the constitutional homestead exemption, and that he therefore was not entitled to the personal property exemption under § 222.25(4) of the Florida Statutes....

...He had not abandoned or alienated the property. Consequently, the home continued to enjoy its homestead status under Florida law. The Court therefore concluded that the debtor in Magelitz was not entitled to the additional personal property exemption, since § 222.25(4) does not permit a debtor to keep his home and also receive the enhanced personal property exemption provided by that section....

...tion creditors. In re Magelitz, 386 B.R. at 883. The Court finds that the Debtors are receiving the benefits of the Constitutional homestead exemption. Consequently, they are not entitled to claim the expanded personal property exemption provided by § 222.25(4) of the Florida Statutes....

...sonal property exemption from legal process for debtors who do not claim or receive the benefit of a homestead exemption. We have for review a question certified by the United States Court of Appeals for the Eleventh Circuit regarding the meaning of section 222.25(4), Florida Statutes (2007)—which contains the personal property exemption—that is determinative of an issue in a bankruptcy case pending in that court and for which there appears to be no controlling precedent from this Court: Whether a debtor who elects not to claim a homestead exemption and indicates an intent to surrender the property is entitled to the additional exemptions for personal property under Fla.Stat. § 222.25(4)....

...We have jurisdiction. See art. V, § 3(b)(6), Fla.Const. In line with the legal analysis we adopt, we clarify the issue presented by rephrasing the certified question as follows: Whether for the purpose of the statutory personal property exemption in section 222.25(4), a debtor in bankruptcy receives the benefits of Florida's article X, section 4, constitutional homestead exemption where the debtor owns homestead property but does not claim the homestead exemption in bankruptcy and the trustee's...

...der the Bankruptcy Code. (This amount represented most of the Debtor's equity in her car.) The Debtor then filed amendments to her bankruptcy petition, deleting the *581 homestead exemption and newly claiming the $4000 personal property exemption of section 222.25(4), Florida Statutes (2007), the statute at issue in this case....

...n. The Trustee appealed the ruling, and the federal district court affirmed the order overruling the Trustee's objection. The Trustee then appealed to the circuit court. Osborne, 326 Fed.Appx. at 500. Confronted with the question of how to interpret section 222.25(4), the Eleventh Circuit reviewed several bankruptcy cases that offered conflicting views regarding its meaning and certified a question to this Court. Id. at 501-02. II. ANALYSIS This case presents an issue of first impression in our state courts regarding the meaning of section 222.25(4), and our answer to the certified question will resolve an ongoing conflict in the bankruptcy courts....

...Only when the statutory language is unclear or ambiguous is it necessary to apply principles of statutory construction to discern its meaning. Tropical Coach Line, Inc. v. Carter, 121 So.2d 779, 782 (Fla.1960). We begin our analysis with a review of the text of section 222.25(4) and section 4 of article X of our constitution as well as the rules of construction that apply to such exemptions....

...Next, we describe the basic conflict in the bankruptcy courts over the statute's meaning and, finally, we resolve the conflict and answer the rephrased certified question. A. The Statutory Personal Property Exemption and the Constitutional Homestead Exemption Section 222.25, Florida Statutes, provides in pertinent part as follows: 222.25....

...Milton, 63 Fla. 533, 58 So. 718, 719 (1912)). We apply the same rule of liberal construction in favor of the statutory exemption to determine when a debtor "receive[s] the benefits" of the homestead exemption and thus becomes ineligible to claim the section 222.25(4) personal property exemption. B. The Legal Context of the Statute Before we examine the conflict in the bankruptcy courts regarding section 222.25(4), we outline the context of the statute within Florida and federal law....

...t to contest his ouster from his homestead."). Finally—and importantly—another provision in chapter 222 explains why the Eleventh Circuit has asked this Court essentially to resolve a conflict in the bankruptcy courts over the applicability of the section 222.25(4) exemption....

...Florida has done so in section 222.20, Florida Statutes. [3] Accordingly, when a Florida resident files for bankruptcy, Florida law determines which *584 property the debtor may exempt from the bankruptcy estate and administration by the trustee. C. The Conflict in the Bankruptcy Courts Under section 222.25(4), the $4000 personal property exemption is available to any debtor who "does not claim or receive the benefits" of the article X homestead exemption....

...The bankruptcy courts have differed on the role that this aspect of Florida law plays in bankruptcy proceedings. As a result, the bankruptcy courts have expressed disparate views on whether and how a debtor with a Florida homestead is entitled to the section 222.25(4) personal property exemption....

...ida homestead automatically became property of the bankruptcy estate. 386 B.R. at 883; see 11 U.S.C. § 541 (2006). The debtor did not, however, claim the homestead exemption to remove the property from the bankruptcy estate. Instead, he claimed the section 222.25(4) personal property exemption....

...In re Magelitz, 386 B.R. at 881. When the trustee objected to the debtor's claim of the personal property exemption, the debtor argued that by not claiming his home as exempt, he did not receive the benefits of the article X exemption and was thus eligible for the section 222.25(4) exemption....

...If the Debtor retains possession of the homestead while also claiming the additional wildcard personal property exemption, he would be able to shield the home from creditors under Art. X, § 4, Fla. Const. and protect additional personal property under Fla. Stat. § 222.25(4) at the same time. The Florida Legislature did not intend this result—a debtor cannot keep a home and also receive the enhanced personal property exemption under Fla. Stat. § 222.25(4)....

...The court then ruled that the debtor received the benefit of the homestead exemption by staying in the home and could not claim the statutory exemption. Accordingly, the bankruptcy court held that "in order for a debtor who has an interest in a homestead to claim the $4,000 personal property exemption under Fla. Stat. § 222.25(4), the debtor must (1) not claim the property as exempt, and (2) timely and properly show a clear and unambiguous intent to abandon the property." Id....

...they are surrendering their respective homes, they will receive no benefit of the homestead exemption under section 4, article X of the Florida Constitution. As a result, they are entitled to the Statutory Personal Property Exemption provided for by section 222.25(4), Florida Statutes.")....

...tion by the bankruptcy trustee had no effect on the debtor's eligibility to claim the statutory personal property exemption. 2. In re Bennett About six months after Magelitz issued, a different bankruptcy judge also addressed the problem of applying section 222.25(4) in light of Florida's history regarding the article X homestead exemption....

...only through abandonment of the homestead. On the basic issue of the effect this has in bankruptcy proceedings, however, the courts have arrived at opposite conclusions. For the court in Magelitz, the homestead debtor in bankruptcy cannot claim the section 222.25(4) exemption absent abandonment of the homestead property....

...Failure to claim a homestead exempt in bankruptcy proceedings necessarily makes the homestead subject to administration for the benefit of creditors. Thus, under Bennett, absent other factors not relevant here, a debtor with a homestead is eligible to claim the section 222.25(4) personal property exemption without abandoning the homestead property. D. Resolving the Conflict and Answering the Question The persons excluded from using the section 222.25(4) personal property exemption are those who "claim or receive the benefits of a homestead exemption under s....

...X of the State Constitution." To give full effect to the statute, we read the personal property exemption liberally and thus read narrowly the phrase restricting the availability of the statutory exemption to those who do not receive the benefits of the homestead exemption. 1. What Are the "Benefits"? Section 222.25(4) expressly states that the "benefits" are those of the homestead *587 exemption of article X, section 4 of this state's constitution....

...p on real estate taxes. None of these benefits derive from the exemption for a homestead from the reach of creditors under section 4, article X of the Florida Constitution."). 2. Receiving the Benefits Having established that the "benefits" cited in section 222.25(4) refer only to the protection of the homestead from the reach of creditors provided by the article X homestead exemption, we now determine what it means to "claim or receive" those benefits within the meaning of the personal property exemption statute....

...Therefore, the fact that a debtor may have claimed or received the benefits of a homestead exemption in the past would appear to have no bearing on the application of the statute to a debtor's present situation."). We agree that use of the present tense of the verbs in section 222.25(4) narrows the relevant time that a debtor receives the benefits of the article X homestead exemption to the period when the debtor asserts the personal property exemption....

...The fact that the debtor is keeping his home and may use the constitutional shield to protect against execution by future creditors is not relevant."). 3. Otherwise Receiving the Benefits In the foregoing analysis, we have explained that the only "benefits" referred to in section 222.25(4) are protections of the homestead against forced sale and levy and that by not claiming the article X, section 4, homestead exemption, a debtor in bankruptcy may lose that protection....

...at 790 ("A debtor who does not claim the Homestead Exemption may still receive its benefits in certain limited circumstances that can only be determined on a case-by-case basis, after a fact-intensive inquiry."). For example, in Hernandez, the debtor husband filed individually for bankruptcy and claimed entitlement to the section 222.25(4) personal property exemption....

...tion to nevertheless receive its benefits, we do not hold that a debtor's not claiming the homestead exemption in bankruptcy is sufficient evidence that a debtor is not receiving the benefits of the homestead exemption to allow a debtor to claim the section 222.25(4) personal property exemption....

...iding the broadest reasonable application of the statutory personal property exemption. Further, we rephrased the question certified by the Eleventh Circuit to better address the conflict in the federal bankruptcy courts regarding the application of section 222.25(4)....

..., section 4, homestead exemption and the trustee's administration of the bankruptcy estate is not otherwise obstructed by the existence of the homestead exemption, the debtor does not receive the benefits of the homestead exemption and may claim the section 222.25(4) personal property exemption of $4000....

...not otherwise present an obstacle to the bankruptcy trustee's administration of the estate, then the debtor in bankruptcy is not receiving the benefits of the homestead exemption and is eligible to claim the statutory personal property exemption of section 222.25(4). [4] It is so ordered. PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur. NOTES [1] The parties acknowledge that the Debtor in this case is now deceased but state that the issue regarding the meaning of section 222.25(4) nevertheless requires resolution in light of the conflicting opinions in the federal courts....

...imed Current Market Value of Property, Each Exemption Exemption Without Deducting Exemptions ------------------------------------------------------------------------------------------------------------------------- 1992 Nissan 300ZX 54,000 Miles FSA § 222.25(1) 1,000.00 8,000.00 ----------------------------------------------------------------------------------------------------------------------- Bracelet Art....

...gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law. FLA. CONST. art. X, § 4. Florida Statutes § 222.25 allows additional exemptions for a "debtor's interest, not to exceed $1,000 in value, in a single motor vehicle as defined in s. 320.01." FLA. STAT. § 222.25 (West 2000)....

...The Florida Constitution allows Debtors an exemption in personal property to the value of one thousand dollars ($1,000.00). See FLA. CONST. art. X, § 4(a)(2). Additionally, Debtors are entitled to an exemption in a vehicle not to exceed the value of one thousand dollars ($1,000.00). See FLA. STAT. § 222.25 (West 2000)....

...of Exemptions. The Debtors, Thomas Jaysen Kent and Denise M. Kent, did not claim their home as exempt on their bankruptcy schedules. The Debtors acknowledge, however, that they intend to retain the home and to reaffirm the mortgages on the property. Section 222.25(4) of the Florida Statutes provides that a debtor may claim $4,000.00 in personal property as exempt, if he does not "claim or receive the benefits of a homestead exemption under s....

...of the Bankruptcy Code. (Doc. 12). On January 30, 2009, the Debtors filed an Amended Schedule of Property Claimed as Exempt. (Doc. 17). In the Amended Schedule, the Debtors claimed their household furnishings and bank accounts as exempt pursuant to § 222.25(4) of the Florida Statutes. The scheduled value of the exemptions claimed pursuant to Fla. Stat. § 222.25(4) is $7,614.06....

...The Debtors did not claim the Home as exempt. On February 2, 2009, the Trustee filed an Objection to the Debtors' Amended Claim of Exemptions. (Doc. 18). In the Objection, the Trustee asserts that the Debtors are not entitled to the exemptions provided by § 222.25(4) of the Florida Statutes....

...The Debtors filed a Memorandum in Opposition to the Trustee's Objection to Exemptions. (Doc. 28). In the Memorandum, the Debtors contend that they elected not to claim the Home as exempt on their Amended Schedule C, "while using greater wildcard exemption available under Florida Statutes § 222.25(4) to exempt various personal property." (Doc....

...749 one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner's family. (2) personal property to the value of one thousand dollars. Fla. Const. art. X, § (4)(a)(1),(2)(Emphasis supplied). Section 222.25(4) of the Florida Statutes provides: 222.25....

...ment, garnishment, or other legal process: ... (4) A debtor's interest in personal property, not to exceed $4,000, if the debtor does not claim or receive the benefits of a homestead exemption under s. 4, Art. X of the State Constitution. Fla. Stat. 222.25(4)(Emphasis supplied). Generally, § 222.25(4) provides that a debtor may claim personal property up to the value of $4,000 as exempt under the statute, unless the debtor either "claims" a homestead exemption or "receives the benefits of" a homestead exemption under Art....

...nal property exemption provided by the statute. If they do not receive the benefits of the constitutional homestead exemption, however, each of the Debtors may claim up to $4,000.00 in personal property as exempt in their bankruptcy case pursuant to § 222.25(4)....

...The scheduled amount of the mortgages on the Home exceeds the scheduled value of the property. The Debtors intend to retain the Home as their residence, and to reaffirm the mortgages on the property. The Debtors claimed certain personal property as exempt on their Amended Schedule C pursuant to § 222.25(4) of the Florida Statutes....

...The issue is whether the Debtors "receive the benefits of a homestead exemption" under the Florida Constitution. If the Debtors "receive the benefits of a homestead exemption," they are not entitled to the increased personal property exemption available under § 222.25(4)....

....). See also In re Ballato, 318 B.R. 205, 209 (Bankr.M.D.Fla.2004)(In a converted case, a claim of exemption is determined as of the date of the original petition, and not the date of conversion.) Moreover, with respect to an exemption claimed under § 222.25(4), courts have generally "draw[n] meaning from the fact that the statute is written in the present tense." In re Abbott, 2009 WL 1872125, at *2 (Bankr.S.D.Fla.)....

...th the general proposition that a debtor's entitlement to an exemption is determined as of the date of the petition." Consequently, for purposes of this case, the Court must determine the Debtors' entitlement to the personal property exemption under § 222.25(4) as of the date that they filed their Chapter 7 petition....

...C. Receive the benefits The Home satisfies the constitutional requirements for homestead property as of the petition date. Further, the Court finds that the Debtors in this case "receive the benefits of a homestead exemption" within the meaning of § 222.25(4) of the Florida Statutes....

...ntends to retain and live in the home as his principal residence. Since the Debtors in this case receive the benefits of a homestead exemption under the Florida Constitution, they are not entitled to claim the personal property exemption provided by § 222.25(4) of the Florida Statutes....

..."The intent of the statute appears to be to give a debtor who lacks homestead protections some extra personal exemptions." In re Rogers, 396 B.R. 100, 102 (Bankr.M.D.Fla.2008)(citing Proposed Amendment to Personal Property Exemption Statute Fla. Stat. § 222.25, Bankruptcy/UCC Comm....

...Florida, Fort Myers Division. October 23, 2007. ORDER ON TRUSTEE'S OBJECTION TO CLAIM OF EXEMPTION (Doc. No. 8) ALEXANDER L. PASKAY, Bankruptcy Judge. The Florida Legislature in its last session passed Senate Bill 2118 modifying and *414 codifying Section 222.25 of the Florida Statutes. The relevant Florida Statute § 222.25(4) provides: 222.25 Other individual property of natural persons exempt from legal process....

...T. Bezares and Marci J. Bezares (Debtors). Mr. Bezares claimed $5,000 as personal property exemption. Not surprisingly, Ms. Jensen, the Trustee in this Chapter 7 case, challenged this claim contending, that, by virtue of the amendment to FLA. STAT. § 222.25 (2007), the maximum allowable personal property exemption claim is $4,000....

...Neither counsel for the parties nor the Court has been able to locate any relevant interpretation of this change and the scope of the amendment in any case in the State of Florida. The Trustee, in support of her objection, relies on the legislative history of FLA. STAT. § 222.25 which, according to the Trustee, leaves no doubt that the legislature intended that the amendment fix the maximum personal property exemption at $4,000 which includes the previous $1,000 exemption provided by the Florida Constitution....

...ent: . . . . III. Effect of Proposed Changes: . . . The bill also increases the amount of personal property exempt from creditor claims, which is owned by persons without homestead property. . . . Property Exempt from Creditor Claims The bill amends s. 222.25, F.S., to increase to $4,000 from $1,000 the amount of personal property exempt from creditor claims for persons who do not own homestead property....

...a which prohibits its amendment except by the method as provided for by the Florida Constitution pursuant to Article XI, Section 5. Based on the foregoing, this Court is satisfied that the Debtor's position is correct and the amendment to FLA. STAT. § 222.25 added $4,000 to the previous $1,000 making a total of $5,000 as the allowable amount of the personal property exemption available to a person who does not own homestead property or claim a homestead exemption....

...any property of Debtor and/or her husband. 5. The Trustee timely filed his objection to Debtor's claim of exemptions. First, the Trustee objects to Debtor's claim of exemption as to the 1996 Chevrolet Cavalier (automobile) *413 under Florida Statute § 222.25, because the value exceeds $1,000.00. FLA.STAT. ANN. § 222.25 (West 1989)....

...AUTOMOBILE The Trustee objects to Debtor's claim of exemption as to the automobile. Debtor's Schedule C lists a 1996 Chevrolet Cavalier as having a fair market value of $11,925.00, with a lien of $7,440.66, leaving $4,484.34 in equity. Debtor claimed the $4,484.34 as exempt pursuant to Florida Statute § 222.25. However, § 222.25 provides that a debtor can only claim up to $1,000.00 in value, in a single automobile, as exempt from property of the bankruptcy estate. FLA.STAT.ANN. § 222.25 (West 1989)....

...a)(1)-(2) of the Constitution of the State of Florida: his residence at 5760 SW 88 Avenue, Cooper City, Florida, and $1000.00 in unidentified personal property. Additionally, the Debtor claimed his car as exempt pursuant to Florida Statute Annotated section 222.25....

...FOR RECONSIDERATION OF ORDER SUSTAINING OBJECTION TO DEBTORS' CLAIM OF EXEMPTIONS K. RODNEY MAY, Bankruptcy Judge. The trustee opposes the debtors' claims that each of them is entitled to exempt an additional $4,000 in personal property, pursuant to Section 222.25(4) Florida Statutes, which allows such an exemption to *569 persons who neither claim, nor receive, the benefit of the Florida Constitution's homestead exemption....

...On January 28, 2009, the debtors filed Responses to the Trustee's Objection and to both Motions to Compel Turnover (Document Nos. 21-23). At the *570 hearing, the parties agreed that the dispositive issue before the Court was whether the debtors are entitled to claim the enhanced personal property exemption pursuant to Section 222.25(4), Florida Statutes, since they did not claim the Florida Constitution's homestead exemption. [4] DISCUSSION Section 222.25(4), Florida Statutes, was adopted in 2007, to enhance the exemption for personal property for persons who do not own a home....

...000 also encumbered by a Suncoast Schools Federal Credit Union lien in the amount of $21,000. [3] Each of the debtors claimed the constitutional exemption of $1,000 for personal property as well as the $4,000 personal property exemption, pursuant to Section 222.25(4), Florida Statutes, for a total of $10,000 of claimed exemptions....

...4,000 personal property exemption where she was not claiming the exemption in the bankruptcy case and had indicated an intent to surrender the property. Instead, the Eleventh Circuit panel certified to the Florida Supreme Court the interpretation of Section 222.25(4) as to the facts of the case....

...The question presented to the Court is whether the chapter 7 debtors, who previously claimed their homestead as exempt, may amend their schedule of exempt property after the initial objection deadline to delete the homestead and add personal property claimed exempt under Florida Statutes § 222.25(4)....

...[1] On March 15, 2011, the Debtors filed an amended Schedule C. The Debtors deleted their claim of exemption for their home. In its place, the amended Schedule C reflects an aggregate of $8,000 in claimed personal property exemptions under Florida Statutes § 222.25(4), commonly known as the "wild card" exemption....

...ction deadline. The Eleventh Circuit recently addressed "whether a debtor who elects not to claim a homestead exemption and indicates an intent to surrender the property is entitled to the additional exemptions for personal property under Fla. Stat. § 222.25(4)." Osborne v....

...LEXIS 9702 (11th Cir. May 10, 2011). In Dumoulin, as in this case, the debtor initially claimed her homestead as exempt but later amended her schedules to delete the homestead and claim additional personal property exemptions under Florida Statutes § 222.25(4)....

...THIS MATTER is before the Court on the Trustee's Objection to the Debtor's Claim of Exemptions (the "Objection," Doc. 21). The Objection asserts that the Debtor exceeded the exemption amount allowed for a single motor vehicle under Florida 1 aw by combining Fl a. Stat. §§ 222.25(1) with 222.25(4), The issue is whether the Debtor may "stack" her exemptions under Fla. Stat. §§ 222.25(1) and 22225(4) toward a single motor vehicle....

...§ 1334. Background On October 29, 2007, the Debtor filed her Voluntary Petition under Chapter 7. On Schedule C of the petition, the Debtor claims a combined $5,000 exemption for her 2006 Chrysler Sebring valued at $9,500, pursuant to Fla. Stat. §§ 222.25(1) and 222.25(4). Fla. Stat. § 222.25 provides, in pertinent part 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 ....

...X of the State Constitution . . . The Debtor did not claim a homestead as exempt on Schedule C. "If a debtor does not receive such benefits of the homestead exemption, then that debtor is entitled to the Statutory Personal Property Exemption" under § 222.25(4). In re Gatto, 380 B.R. 88, 92 (Bankr.M.D.Fla.2007). Therefore, the exemption under Fla.Stat. § 222.25(4) is applicable to this case. It is the Trustee's contention that the Debtor may not stack the two exemptions under Fla. Stat. §§ 222.25(1) and 222.25(4) because "§ 222.25(1) specifically states that the exemption is a debtor's interest, not to exceed $1,000.00 in value, in a single motor vehicle.'" Hence, the combined $5,000, exemption would exceed the exemption amount allowed for "a single motor vehicle." Discussion The issue is whether the Debtor can exceed the $1,000 exemption limit toward a single motor vehicle under Fla. Stat, § 222.25(1) by combining that exemption with the $4,000 statutory personal property exemption under § 222.25(4). The starting point is the language of the statute. See Watt v. Alaska, 451 U.S. 259, 265, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981); U.S. v. DBB, Inc., 180 F.3d 1277, 1281 (11th Cir.1999). The language of Fla. Sta. § 222.25(1) is not ambiguous when it is read by itself; it provides that a *352 debtor may claim an exemption not exceeding $1,000 toward a single motor vehicle. Likewise, the language of § 222.25(4) is not ambiguous when read by itself; it provides the debtor with a "wildcard" exemption in personal property if the debtor does not claim or receive the benefit of the homestead exemption. Section 222.25(4) is intended to provide the Debtor with a personal property exemption alternative to the homestead exemption permitted under Fla. Const. Art.X § 4. However, §§ 222.25(1) and 222.25(4) are susceptible to multiple interpretations when read together....

...same motor vehicle. See Avco Financial Serv. v. Isbell, 67 N.C.App. 341, 312 S.E.2d 707, 707 (1984). Based on the plain language of the statute, I must permit the Debtor to stack the two exemptions because "there is nothing in the plain language of § 222.25(4) that supports a contrary interpretation." See Gatto, 380 B.R....

...The Florida "legislature is presumed to pass subsequent enactments with full awareness of all prior enactments." Palm Harbor Special Fire Control Dist. v. Kelly, 516 So.2d 249, 250 (Fla.1987). Therefore, the legislature is presumed to have had "full awareness" of subsection (1) when it amended § 222.25 to add subsection (4) in 2007. While Section 222.25(4) clearly and unambiguously excludes debtors who elect to "receive the benefits of a homestead exemption" from receiving the benefits of the statutory personal property exemption, the language does not exclude debtors who receive the benefits of the motor vehicle exemption. Moreover, Section 222.25(4) allows a debtor to exempt any "personal property" and does not specifically exclude motor vehicles from the exemption. If the legislature intended to prohibit debtors from stacking subsection (1) with (4), the legislature knew how to include such exclusionary language in the statute. See Gatto, 380 B.R. at 94. Therefore, the context of § 222.25 and recent legislative action support the conclusion that the legislature did not intend to prohibit stacking the two exemptions....

...Auld, 450 So.2d 217, 219 (Fla. 1984); Sw. Fla. Water Mgmt. Dist. v. Save the Manatee Club, 773 So.2d 594, 599 (Fla. 1st DCA 2000). Although courts commonly refer to legislative history in order to ascertain legislative intent, the legislative history for Fla. Stat. § 222.25 is not very helpful in ascertaining whether the legislature intended to prohibit stacking the exemptions under subsections (1) and (4)....

...See Gatto, 380 B.R. at 91 (citing Havoco of Am., Ltd. v. Hill, 790 So.2d 1018, 1021 (Fla.2001)); Ruff's Estate, 32 So.2d at 843. Here, i n the absence of a clear statement from the legislature prohibiting the Debtor from stacking the exemptions in §§ 222.25(1) and 222.25(4), the statutory. language should be construed liberally to permit the Debtor to stack the two exemptions. Although there is no case law that conclusively determines whether the exemptions under §§ 222.25(1) and 222.25(4) may be stacked, there are cases that allow the statutory exemptions to be stacked with the' Constitutional personal property exemption under Fla. Const. Art.X § 4(1)(2). For example, Judge Paskay construed § 222.25(1) and concluded that the motor vehicle exemption may be stacked with the Constitutional personal property exemption toward one motor vehicle because the statute was not intended to take away the Constitutional personal property exemption. See In re Rutter, 247 B.R. 334, 335-36 (Bankr.M.D.Fla.2000). Similarly, in Bezares, Judge Paskay allowed the personal property exemption under § 222.25(4) to be stacked with the Constitutional personal property exemption because the legislature intended to create an additional benefit for the debtor. See 377 B.R. 413 (Bankr.M.D.Fla.2007). Likewise, Judge Williamson concluded that § 222.25(4) and the Constitutional personal property exemption can be stacked because "there is nothing in the plain language of the section 222.25(4) that supports a contrary interpretation." Gatto, 380 B.R....

..."stacking of such exemptions protects debtors and their families by facilitating their financial rejuvenation." 58 B.R. 790, 793 (Bankr. C.D.Ill.1986). For the reasons discussed above, the debtor is permitted to stack the motor vehicle exemption in § 222.25(1) with personal property exemption in § 222.25(4) toward a single motor vehicle. Accordingly, it, is hereby ORDERED and ADJUDGED that the Trustee's Objection to Debtor's Claim of Exemptions is OVERRULED to the extent it seeks to limit the personal property exemption claimed by the Debtor under Fla. Stat. § 222.25(4)....

...not claimed by the Debtor as exempt on her Schedule C. On her Schedule C the Debtor merely claimed as exempt her homestead, her personal property under Article X, § 4, Fla. Const., and her equity in a 1998 Jeep Grand Cherokee pursuant to Fla.Stat. 222.25....

...On August 14, 2000, the Trustee filed her Objection to Claim of Exemption contending that the personal property claimed as exempt exceeds the amount allowable under Fla. Const. Article X, Section 4, and that the equity in her Jeep also exceeded the amount allowed under Fla.Stat. 222.25....

...In her response, the *791 Debtor denied the Trustee's contention that her claim concerning the personal property exceeded her entitlement to the exemption, and she also denied the Trustee's claim that the equity in her vehicle is more than is available under Fla.Stat. 222.25....

...08-27948-BKC-PGH. United States Bankruptcy Court, S.D. Florida, West Palm Beach Division. June 26, 2009. *905 Joseph S Rodowicz, Esq, Palm Beach Gardens, FL, for Debtors. MEMORANDUM ORDER OVERRULING TRUSTEE'S OBJECTION TO CLAIMED EXEMPTION PURSUANT TO FLA. STAT. § 222.25(4), BUT DEFERRING RULING ON DEBTORS' CLAIMED EXEMPTION FOR 2008 TAX REFUND PURSUANT TO FLA. STAT. § 222.25(3) PAUL G....

...Bakst's ("Trustee") Objection to Claimed Exemption and Application for Turnover ("Objection"), wherein the Trustee objects to Robert Anton Abbott and Stacy Edith Abbott's (collectively, the "Debtors") claim of exemption for personal property pursuant to Fla. Stat. § 222.25(4), and to their claim of exemption for an unknown amount of their 2008 Tax Refund pursuant to Fla. Stat. § 222.25(3)....

...ate or currently. On March 25, 2009, the Trustee filed a Notice of Abandonment of the Real Property. Having not claimed a homestead exemption for the Real Property, the Debtors claimed the following personal property as exempt pursuant to Fla. Stat. § 222.25(4): any funds over and above the sum of $234.08 in their checking account, household goods and furnishings in the amount of $2,000.00, wedding rings and other jewelry in the amount of $750.00, a 2000 Suzuki Intruder 1500 motorcycle in the amount of $3,500.00, and a 2006 Triple Crown 5 × 8 utility trailer in the amount of $500.00. The Debtors also claimed as exempt pursuant to Fla. Stat. § 222.25(3), their 2008 Tax Refund in an unknown amount....

...The Trustee objects to these claims of exemption and seeks turnover of the above-listed property. CONCLUSIONS OF LAW I. Jurisdiction The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b). This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B). II. Fla. Stat. § 222.25(4)—Statutory Personal Property Exemption A. Section 222.25(4) contains two exclusions Florida Statutes § 222.25(4), which became effective July 1, 2007, provides an additional $4,000.00 personal property exemption ("Statutory Personal Property *906 Exemption"), for a debtor who neither claims the constitutional homestead exemption, or otherwise receives the benefits of the constitutional homestead exemption....

...surrendering the Real Property, the Debtors are receiving the benefits of the homestead exemption. [2] Based upon this argument, the Trustee maintains that the Debtors are excluded from claiming the Statutory Personal Property Exemption provided by § 222.25(4)....

...mption under § 4, Art. X of the State Constitution." B. "Receive the benefits" exclusion is in the present tense Courts have grappled with the meaning of the exclusionary phrase "receive the benefits of a homestead exemption" and the application of § 222.25(4) since its enactment....

...792, 793 (Bankr.S.D.Fla.2008) ("Since the Debtor plans to reaffirm the debt on her homestead property, as a matter of law, the Debtor is receiving the benefits from her homestead property and is not entitled to the additional $4,000 personal property exemption provided for under Florida Statute § 222.25(4)")....

...as of the petition date. This analysis is consistent with the plain language of the statute, and the goal of a fresh start for debtors. *911 D. The Statute's Intent While it is unnecessary for courts to divine legislative intent when a statute, like § 222.25(4), is plain and unambiguous on its face, some courts broadly interpreting the statute's "receive the benefits" exclusion maintain that their interpretation is in keeping with the statute's legislative intent....

...atutory Personal Property Exemption was only available to a debtor who did not own a homestead. See Franzese, 383 B.R. 197, 207-208 (Bankr.M.D.Fla.2008) (extensively discussing the Proposed Amendment to Personal Property Exemption Statute Fla. Stat. Section 222.25 ("PPE Proposal") (August 7, 2006), a research proposal drafted by the Business Law Section of the Florida Bar and relied upon by the Florida legislature in enacting § 222.25(4))....

...ide in the Real Property and they intend to reaffirm the debt secured by the Real Property. Therefore, the Debtors are eligible to claim the Statutory Personal Property Exemption. The Trustee's Objection to the Debtors' claim of exemption based upon § 222.25(4) is overruled....

...The Trustee could have legally administered the Real Property if he chose to do so. III. 2008 Tax Refund The Trustee also objects to the Debtors' claim of exemption for an unknown amount of their 2008 Tax Refund. The Debtors' claimed an exemption on their Schedules for their 2008 Tax Refund pursuant to Fla. Stat. § 222.25(3) which provides a special exemption for a debtor's interest in a tax refund or credit traceable to the federal earned income credit for low income individuals....

...[7] The Trustee argues that the Debtors claimed a "zero" exemption, and consequently they have not legally claimed any exemption for the property. However, the Trustee's citation to In re Zupansic, 259 B.R. 388 (M.D.Fla.2001), is not on point with Trustee's argument. Debtors have responded that they may be entitled to a § 222.25(3) exemption in their 2008 Tax Refund but that they cannot determine the extent of the exemption until the *913 return is filed....

...ring. CONCLUSION As discussed above, the Court finds that the Debtors did not receive the benefit of Florida's constitutional homestead exemption as of the Petition Date. Therefore, the Debtors are eligible to claim exemptions pursuant to Fla. Stat. § 222.25(4)....

...ORDER The Court, having heard the argument of counsel, reviewed the applicable law, the submission of the parties, and being otherwise fully advised in the premises, hereby ORDERS AND ADJUDGES that: 1. Trustee's Objection to Debtors' claim of exemption pursuant to Fla. Stat. § 222.25(4) is overruled....

...The Court will defer ruling on Trustee's Objection to Debtors' claim of exemption for an unknown amount in their 2008 Tax Refund. The parties should contact the Courtroom Deputy to schedule an evidentiary hearing if they are unable to resolve the issue. NOTES [1] Fla. Stat. § 222.25(4) states: The following property is exempt from attachment, garnishment, or other legal process: (4) A debtor's interest in personal property, not to exceed $4,000, if the debtor does not claim or receive the benefits of a homestead exemption under s....

...r bankruptcy while the non-filing spouse retained constitutional homestead rights with respect to creditors. In the case at bar, such a scenario is not at issue because the married Debtors filed a joint petition. [3] Thoughtful statutory analysis of § 222.25(4) has been presented in other opinions and need not be repeated....

...As discussed herein, this Court does not find that occupying the home is synonymous with receiving the benefits of the homestead exemption. [5] The Hernandez court sustained the trustee's objection to debtor's claim of exemption pursuant to Fla. Stat. § 222.25(4) because the debtor's non-filing spouse retained her right to assert the homestead exemption for the residence they jointly owned as tenants by the entireties....

...rtgage were "under water." Broward had 144,551 properties, or about 35 percent, with negative equity. . . . Florida had 1.2 million borrowers with negative equity in the third quarter, according to the Santa Ana, Calif.-based company. [7] Fla. Stat. § 222.25(3) provides: The following property is exempt from attachment, garnishment, or other legal process: (3) A debtor's interest in a refund or a credit received or to be received, or the traceable deposits in a financial institution of a debtor's interest in a refund or credit, pursuant to s....

...on of the case to a case under Chapter 7. The Chapter 7 Trustee in this case filed an objection to the Debtor's claim of exemption in his vehicle, the 1993 Cadillac Deville, as to the amount over the exemption of $1,000.00 allowed by law pursuant to Section 222.25 of the Florida Statutes....

...On August 11, 1994 (the "Petition Date"), Debtors filed their petition for relief under Chapter 11 of the Bankruptcy Code. [2] In their amended schedules, Debtors listed as an asset a 1990 Jeep Cherokee automobile with a value of $8,075 and a prior lien of $2,472. Pursuant to Florida Statute Section 222.25, Debtors claimed an exemption of $1,000 in the value of the automobile. The Debtors also listed unsecured debt in their schedules some of which was incurred prior to October 1, 1993. The Objection [3] asserts that Section 222.25 is unavailable to Debtors because the section applies only in cases where debtors had, as of the bankruptcy filing, no outstanding debt incurred prior to October 1, 1993....

...rs within the state only those exemptions permitted under Florida law. Fla.Stat. Sec. 222.20 (1979). In 1993, Florida amended its statutory exemptions to permit a debtor to exempt, inter alia, up to $1,000 of value in a motor vehicle. Fla.Stat. Sec. 222.25 (1993). Section 222.25 was enacted pursuant to Session Law 93-256 (the "Act), and provides in part: Other individual property exempt from legal process....

...(1) Section 77.0305, waiving sovereign immunity regarding garnishment of wages of state and local government employees; (2) Section 222.11, limiting garnishment of wages for heads of families to amounts in excess of $500 per week, with consent; (3) Section 222.25(2), exempting health aids for debtors and dependents; and (4) Section 222.29 and 222.30, prohibiting conversion of non-exempt to exempt assets with intent to defraud creditors....

...one time does not permit a court to alter the meaning of an unambiguous statute. *963 CONCLUSION Because the Debtors incurred debts prior to October 1, 1993, which were outstanding as of the Petition Date, the exemption set forth in Florida Statute Section 222.25 is unavailable to them....

...in 15 days after LWT levied on the truck. Second, they argue that, if the debtors are entitled to exempt any portion of the truck's value, Mootosammy is limited to a total personal property exemption of $4,000 under both the Florida Constitution and Section 222.25(4) of the Florida Statutes. LWT argument is that the debtors cannot claim both the $1,000 personal property exemption allowed in the Florida. Constitution and the new $4,000 personal property exemption allowed in Section 222.25(4)....

...Second, LWT contends the debtors' claimed exemption should be reduced by $1,000 because the debtors cannot claim both the $1,000 personal property exemption as provided in the Florida Constitution and the $4,000 personal property exemption granted in the recently enacted Section 222.25(4) of the Florida Statutes....

...of $1,000: (a) There shall be exempt from forced sale ... the following property owned by a natural person: ... (2) personal property to the value of one thousand dollars. FLA. CONST. ART. X, § 4 (the "Constitutional Personal Property Exemption"). Section 222.25(4) of the Florida Statutes provides a personal property exemption of an amount not to exceed $4,000 to debtors who do not receive any benefit from the homestead exemption. Fla. Stat. § 222.25(4) (2007) (the "Statutory Personal Property Exemption")....

...285, 139 L.Ed.2d 215 (1997) (internal quotations and markings omitted). Because the statute explicitly refers to the constitutional homestead exemption but does not mention the Constitutional Personal Property Exemption, the Legislature apparently did not intend for Section 222.25(4) to limit any other exemption, constitutional or otherwise. Indeed, if LWT's argument were accepted, the debtors could not claim the additional $1,000 exemption allowed in the truck as permitted by Section 222.25(1) of the Florida Statutes. Because a vehicle certainly is personal property, if the new statute, 222.25(4), acted as a limit of $4,000 on all personal property exemptions, then both Section 222.25(1) and the Constitutional Personal Property Exemption would be subsumed with the $4,000 cap....

...Florida law provides at least two separate and distinct personal property exemptions: one constitutional and one statutory. An individual debtor may claim personal property of $5,000 exempt (assuming all other conditions are met) as well as use other Florida exemption provisions relating to personal property, such as Section 222.25(1) in automobiles....

...erty exemption of any amount up to and including, but not exceeding, $4,000. Even if the plain language of the statute were deemed ambiguous, however, a sister Court recently considered this issue and found that, had the Florida Legislature intended Section 222.25(4) to constrain or limit the Constitutional Personal Property Exemption, such a statute would be unconstitutional....

...Constitution of the State of Florida. Id. The Constitution of the State of Florida prohibits its amendment except by the method provided for in Article XI, Section 5. Id. The Bezares Court concluded that the Statutory Personal Property Exemption of Section 222.25(4) has the effect of augmenting the $1,000 Constitutional Personal Property Exemption by $4,000....

...ger (Doc. No. 11). At the hearing before the Court, however, the debtors reduced their total claim of exemption to $6,000. Because the truck is titled in the name of Mr. Mootosammy only, they are claiming a $1,000 exemption for a motor vehicle under Section 222.25(1) of the Florida Statutes, a $1,000 personal property exemption under Article 10, Section 4(a) of the Florida Constitution, and a $4,000 personal property exemption under newly enacted Section 222.25(4) of the Florida Statutes....

...LWT responded on January 22, 2008, with its Objection to Debtors' Claim of Exemptions and Memorandum of Law in Opposition to Debtors' Motion to Avoid Judicial Lien (Doc. No. 31). [5] LWT does not contest that the debtors are entitled to a $1,000 exemption in the truck under Section 222.25(1), if the Court finds the debtors did not waive their right to claim exemptions....

...Term Bond Fund are determined to be property of the chapter 7 estate subject to administration by the chapter 7 trustee. 3. The Debtor's interest in the Isuzu Amigo, with the exception of any automobile exemption available to the Debtor pursuant to § 222.25 of the Florida Statutes, is determined to be property of the estate subject to administration by the chapter 7 trustee....

...The Debtor on June 11, 2008, in Response to Trustee's Objection to Claim of Exemptions (Doc. No. 53) indicated that he had amended his Claim of Exemption to exclude his homestead, the Salem Property, and, therefore, he was entitled to the personal property exemption of $5,000.00 pursuant to Section 222.25, Florida Statutes....

...nt to Schedule C (Doc. No. 56). The Debtor's Second Amended Schedule C eliminated the Salem Property as exempt under Art. X, Section 4 of the Florida Constitution. The Debtor now intends to surrender his homestead and claim his exemption pursuant to Section 222.25, Florida Statutes, "Other individual property of natural persons exempt from legal process." According to the Trustee since the Debtor claimed the property involved as his exempt homestead initially, it is irrelevant that the Debtor has had a change of heart and has decided to surrender the same property. The Trustee asserts that the Debtor's claim under Section 222.25, Florida *253 Statutes, must be rejected and his personal property exemption is limited to the $1,000.00 fixed by Article X, Section 4 of the Florida Constitution. In support of her position the Trustee cites several cases. Although they are somewhat different sets of facts the deal with the interpretation of the terms used in § 222.25, specifically "[t]he following property is exempt from ......

...X of the State Constitution". In the case of In re Hernandez, 2008 WL 1711528 (Bankr.S.D.Fla.2008), the debtor listed personal property exemptions in excess of $5,000.00 and the trustee objected alleging that the Statutory Personal Property Exemption of § 222.25(4) was not applicable to the debtor because he listed his home as exempt as tenants by the entireties (TBE) property....

...None of the debtors elected to claim their homesteads as exempt on their bankruptcy schedules. However, each debtor elected to surrender their home pursuant to Section 521(a)(2)(A) of the Bankruptcy Code. Each debtor did use the Statutory Personal Property Exemption provision of § 222.25 to stack that $4,000.00 on top of the constitutionally exempted $1,000.00....

...d to surrender their respective homestead, they did not "receive the benefits" afforded to them pursuant to Art. X, Section 4 of the Florida Constitution and, therefore, they were entitled to the Statutory Personal Property Exemption provided for by Section 222.25(4), Florida Statute....

...The debtor filed his petition for relief pursuant to Chapter 7 of the Bankruptcy Code August 8, 2007. The debtor listed one piece of property on his schedules, and listed $4,090.00 in exemptions, $3,090.00 of which was claimed pursuant to the Statutory Personal Property Exemption of Section 222.25(4), Florida Statutes....

...The trustee objected to the Statutory Personal Property Exemption arguing that the debtor still "received benefits" from owning the homestead. The court first found that the debtor, because of his ambiguous statement of intentions, failed to properly abandon the homestead. The court noted that the purpose of § 222.25(4) was to give a debtor who lacks the advantages associated with exempted a homestead some extra exemptions and because of his contradictory actions with respect to the property, the Morales court held the debtor to be ineligible....

...The debtor's schedule A indicated his primary residence was worth $135,000.00. The same property was encumbered by secured claims in the amount of $149,079.00. The debtor did not claim his homestead as exempt in his schedule C and he elected to claim the $4,000.00 under Statutory Personal Property Exemption of Fla. Stat. 222.25(4)....

...The court held that because the debtor would continue to live in the home, reside in it, and continue to make the monthly payments, it would retain homestead status under Florida law, and the debtor would thus receive the constitutional protection contemplated in Section 222.25(4), Florida Statutes....

...In conclusion, the court noted that even though the debtor did not claim the property as exempt he failed to show his intent to abandon the property and, based on the same, the debtor could not utilize the $4,000.00 personal priority exemption pursuant to Section 222.25(4), Florida Statutes....

...ing his intent to reaffirm the debt on his homestead. The meeting of creditors was held on December 11, 2007. The trustee filed his motion objecting to the debtor claiming $4,000.00 pursuant to the Statutory Personal Property Exemption of Fla. Stat. 222.25(4) on January 17, 2008. On February 1, 2008, the debtor changed his mind and filed an amended statement in which he indicated his desire to surrender his homestead. The court recognized the bright line test for Statutory Personal Property Exemption of Fla. Stat. 222.25(4), eligibility namely that the debtor may claim it if he neither claims the constitutional homestead exception nor does he otherwise receive constitutional benefits from the homestead....

...omestead exemption. Because there was no affirmative claim of homestead exemption and because the debtor did not receive the benefits of the constitutional protection the court held him to be eligible for the Statutory Personal Property Exemption of Section 222.25(4), Florida Statutes....

...mpt, but his Statement of intention indicated that he would surrender the property. Based on Gatto, this Court is satisfied that the controlling time to determine the issue of whether or not the Debtor is entitled to the benefit of the newly enacted Section 222.25(4), Florida Statutes, is the original date the Debtor filed his Schedule C attached to his Petition for Relief....

...rm the obligation. Therefore, this Court is satisfied that the Debtor did "receive the benefits" of the constitutional exemption and, consequently, he is not entitled to claim the enhanced statutory exemption for personal property provided for under Section 222.25(4), Florida Statutes....

...The Van was converted and specifically designed for the Debtor to enter and exit. Debtor requires the Van to participate in the everyday activities, including weekly visits to her doctor. The Van is exempt, as a "professionally prescribed health aid", pursuant to Fla. Stat. § 222.25(2)....

...Therefore, it is ORDERED, ADJUDGED AND DECREED that Objection by Debtor to Motion for Turnover of Debtor's wheelchair equipped van (Doc. 14) is SUSTAINED; it is further ORDERED, ADJUDGED AND DECREED that the Debtor is entitled to an exemption for the wheelchair equipped van, pursuant to Fla. Stat. § 222.25(2); it is further ORDERED, ADJUDGED AND DECREED that Trustee's Motion for Turnover of Debtor's wheelchair equipped van (Doc....

...Since the Debtor plans to reaffirm the debt on her homestead property, as a matter of law, the Debtor is receiving the benefits from her homestead property and is not entitled to the additional $4,000 personal property exemption provided for under Florida Statute § 222.25(4)....

...See "Schedule A" attached to [DE 1], Nothing on the record contradicts the fact that the value of the Property is less than amount of debt encumbering the Property. DISCUSSION The Objection revolves around the recently expanded personal property exemptions found in Section 222.25(4) of the Florida Statutes, which provides an exemption for: (4) The debtor's interest in personal property, not to exceed $4,000, if the debtor does not claim or receive the benefits of a homestead exemption under Section 4, Article X, of the State Constitution....

...for those creditors with security interests in the Property. Since the Debtor in this case has not shown a clear and unambiguous intent to abandon the homestead property, she is not entitled to the $4,000 personal property exemption under Fla. Stat. 222.25(4)....

...reaffirm the Mortgage in their statement of intention. The Debtors listed personal property exemptions totaling $12,917.34 on Schedule C. Of these exemptions, the Debtors claimed a 2003 Toyota Corolla (the "Vehicle") as exempt pursuant to Fla. Stat. § 222.25(4)....

...ceive the benefits of a homestead exemption under s.4, Art. X of the State Constitution." The Trustee filed the Objection on June 19, 2009. The Objection argues that the Debtors are unable to claim the personal property exemption found in Fla. Stat. § 222.25(4) (the "Wild Card Exemption") and requests the turnover of the Vehicle....

...After the hearing on the Objection, counsel for both parties submitted memoranda of law on the issue of whether the Debtors can properly claim the Wild Card Exemption [D.E. 36 and D.E. 37]. Analysis The issue before the Court is the meaning of the phrase "receive the benefits of a *901 homestead exemption" in Fla. Stat. § 222.25(4)....

...enefit" includes a "right, privilege, or interest in some advantage to which a debtor is entitled to receive, regardless of whether the debtor actually has realized the advantage." 383 B.R. at 205-06 (emphasis supplied). In the context of Fla. Stat. § 222.25(4), the phrase "receive the benefits of" thus refers to the legal right or advantage the Florida Constitution confers upon a homestead owner, regardless of whether the owner actually relies on the privilege....

...ORDER OVERRULING TRUSTEE'S OBJECTION TO CLAIM OF EXEMPTION ALEXANDER L. PASKAY, Bankruptcy Judge. THE MATTER under consideration in this Chapter 7 case of Brigid Ann Fyock (Debtor) is a challenge by the Chapter 7 Trustee, Diane L. Jensen (Trustee) of the Debtor's claim of exemption based on Florida Statute 222.25(4). The modification and codification of Section 222.25 of the Florida Statutes increased, inter alia, the amount of personal property which could be exempted from creditors' claims by a debtor, when the "debtor does not claim or receive the benefits of a homestead exemption" pursuant to Article X, Section 4 of the Florida Constitution....

...itor and, therefore, the Debtor does not have a creditor who is holding and/or asserting an unsecured claim against the Debtor's estate. This leads to the heart of this controversy, that is, the Debtor's right to claim the benefits of Florida Statue § 222.25(4)(2007). Florida Statute § 222.25 in subclause (4) provides: 222.25 Other individual property of natural persons exempt from legal process.—The following property is exempt from attachment, garnishment, or other legal process: *885 (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 under s....

...Since the Debtor is not claiming or otherwise receiving the benefits of the Florida Constitutional homestead exemption under Section 4, Article X of the Florida Constitution, the Debtor as a result is entitled to a $4,000 personal property exemption as contained in FLA. STAT. § 222.25 (2007). FLA. STAT. § 222.25(4) provides that the a debtor is entitled to the $4,000 personal property exemption "if the Debtor does not claim or receive the benefits of a homestead exemption under Section 4, Article X of the Florida Constitution." The plain language of Fla. Stat. § 222.25(4) allows a debtor a....

...common law tenancy by the entireties principle, she is entitled to use the $4,000 personal property exemption. The Trustee relies in the recent case of In re Franzese, 383 B.R. 197 (Bankr: M.D.Fla.2008), where the court focused on the two phrases of § 222.25(4) of "claim" and "receive the benefits of," and interpreted these phrases in a bankruptcy context....

...The notice specifically states that "the undersigned claims as homestead exempt from levy and execution under Section 4, Article X of the State Constitution," the debtor's home. It is this claiming of homestead to which the phrase "claim ... a homestead exemption" refers in FLA. STAT. § 222.25(4)(2007)....

...§ 222.02(2007) provides that rather than before a levy is made, a judgment debtor may still receive the benefits of the Florida Constitution's homestead exemption after a levy upon the debtor's home, by simply notifying the Sheriff making the levy that the property *886 levied upon is the debtor's homestead. FLA. STAT. § 222.25(4) is referring to when it includes the phrase, "receive the benefits of a homestead exemption," since the debtor is hot actually claiming a homestead exemption as in FLA....

...§ 522(b)(3)(B) of the Bankruptcy Code. Therefore, the Debtor is not "receiving the benefits of a homestead exemption under [the Florida Constitution]," and thus, the Debtor should be entitled to the $4,000 personal property exemption of FLA. STAT. § 222.25(4)(2007)....

...NOTES [1] Doc. No. 20. [2] Doc. No. 22. [3] All references to the Bankruptcy Code shall be to Title 11 of the United States Code. [4] Doc. No. 20. The trustee has withdrawn his objection to the debtors' claim of exemption arising under Florida Statute § 222.25(4), the so-called "Wildcard Exemption," which allows debtors to claim exemption in any type of personal property. As such, the debtors are entitled to an exemption of additional personal property listed on Schedule C for any remaining amount available to them under § 222.25(4)....

...9) and the Response by Debtor Trustee's Objection to Property Claimed as Exempt (Doc. No. 12). The Objection asserts that the debtor, Harry Kirk Sloan (the "Debtor"), is not entitled to exempt his interest in a 1986 Ford Taurus pursuant to Florida Statute Chapter 222.25 (1997)....

...On August 19, 1996 (the "Petition Date"), the Debtor filed a petition for relief under Chapter 7 of the Bankruptcy Code. In his Schedule C (Doc. No. 2), the Debtor claimed an exemption of $1,000 in the value of his 1986 Ford Taurus pursuant to Florida Statute Section 222.25....

...luded in this Chapter 7 case. The issue is whether a debtor who has paid off all debts that were outstanding on October 1, 1993, but who continues to use credit cards issued prior to that date is entitled to utilize the $1,000 exemption set forth in Section 222.25....

...er a debtor is entitled to rely upon the exemption? This Court previously has held, in In re Puff 'N Stuff of Winter Park, Inc., 183 B.R. 959 (Bankr.M.D.Fla.1995), that debtors were not entitled to utilize the exemptions set forth in Florida Statute Section 222.25 if they had incurred debts prior to October 1, 1993, which were included in this bankruptcy case. However, this decision did not address the precise issue raised by the Objection. Analysis. Section 222.25 was enacted pursuant to Session Law 93-256 which, in Section 6, limits the applicability of the exemption to "a contract, a loan, a transaction, a purchase, a sale, a transfer, or a conversion occurring on or after October 1, 1993" (emphasis added)....

...Every time a party incurs a charge on a credit card a new transaction or transfer occurs. As such, when a credit card company permitted a cardholder to continue using his or her credit card after October 1, 1993, it tacitly agreed that the cardholder was entitled to use the exemption contained in Section 222.25. The credit card company has a choice. It could have revoked the cardholder's charging privilege after October 1, 1993. If it did not, it is bound by the reach of Florida's exemption statutes, including Section 222.25....

...He was permitted to continue using an old credit card after October 1, 1993, and some of that post-1993 debt is included in this Chapter 7 case. However, because the charges constitute transfers or transactions occurring after October 1, 1993, he is entitled to use the exemption in Section 222.25 of the Florida Statutes. Accordingly, it is ORDERED: 1. The Objection is overruled. 2. The Debtor is entitled to exempt $1,000 from the value of his 1986 Ford Taurus pursuant to Section 222.25 of the Florida Statutes.

...This exemption is found in Florida's Hazardous *643 Occupations Act. Next, the Debtor claims that that portion of any prospective award which constitutes either wages or maintenance and cure is exempt pursuant to Florida Statute 222.11. Third, the Debtor cites Florida Statute 222.25 as a basis for exempting any professionally prescribed health aides which might comprise part of his recovery....

...Thus, the Debtor is precluded from claiming either the Lawsuit or any portion of the recovery as exempt under Fla.Stat. § 769.05 because the Lawsuit does not contain a cause of action brought under the Florida Hazardous Occupations Act. E. FLORIDA STATUTE § 222.25 The Debtor further claims that a portion of the state court award may be exempt pursuant to Florida Stat. § 222.25(2) which provides: The following property is exempt from attachment, garnishment, or other legal process: — (2) A debtor's interest in any professionally prescribed health aides for the debtor or a dependent of the debtor....

...The Debtor's Lawsuit does not contain a cause of action under the Act and therefore the exemption does not apply. 5. To the extent the award results in any professionally prescribed health aides for the Debtor, such property is an exempt asset of the estate pursuant to Fla.Stat. § 222.25....

...The debtor, Sabrina Ann Freeman, has claimed her anticipated federal tax refund of $1,339 as exempt from claims of her creditors, relying first on personal property exemptions provided by the Florida Constitution, Article X, Section 4(a)(2), [1] and Florida Statute § 222.25(4), [2] and second upon Section 522(b)(3)(B) of the Bankruptcy Code, [3] which allows a debtor to exempt property owned as a tenant by the entireties....

...No. 19). First, the trustee contends that the debtor *873 cannot rely on Florida tenancy by the entireties law to exempt the tax refund. Second, the trustee contends the debtor may not use the $4,000 statutory personal property exemption provided by Section 222.25(4) of the Florida Statutes because, when she filed this bankruptcy case, she initially claimed her home as exempt under the Florida Constitution and only later changed her mind to surrender the home, thereby belatedly forfeiting her constitutional homestead protection....

...he Florida Constitution at Article X, Section 4(a)(2), which, provides: "(a) There shall be exempt from forced sale ... the following property owned by a natural person: ... (2) personal property to the value of one thousand dollars." [5] Fla. Stat. § 222.25(4) provides: "The following property is exempt from legal process......

...fact "claim or receive the benefits of a homestead exemption under Section 4, Article X, of the State Constitution." In re Franzese, 383 B.R. 197, 204 (Bankr.M.D.Fla.2008). [6] Either theory of exemption will protect the $1,009 at issue. Fla. Stat. § 222.25(4) provides up to $4,000 of exempt property, clearly sufficient to protect the refund....

...rty exempt from property of the estate under 11 U.S.C. § 522(b)(3)(B). The Debtor's schedules also list her interest in a "2006 Ford Mustang automobile" (the "Vehicle"). The Debtor claimed $2,230.00 of her interest in the Vehicle exempt pursuant to section 222.25(4) of the Florida Statutes and $1,000.00 of her interest in the Vehicle exempt pursuant to section 222.25(1) of the Florida Statutes....

...The Debtor's interest in the Georgia Property is property of the estate under section 541 and may be administered by the Trustee. The Trustee's objection to the Debtor's claimed exemption with regard to the Georgia Property will be sustained. (b) Debtor's Claimed Exemption of the Vehicle under Florida Statutes section 222.25(4) The Debtor relies on section 222.25(4) of the Florida Statutes for a claimed exemption in $2,230.00 of the value of the Vehicle. [4] The Trustee objects to this exemption, arguing that the Debtor indirectly receives the benefits of Florida's constitutional homestead protection and thus is not eligible for the personal property exemption under section 222.25(4). Section 222.25(4) of the Florida Statutes allows a debtor to exempt his or her interest in personal property in an aggregate value up to $4,000 "if the debtor does not claim or receive the benefits of a homestead exemption under s....

...receives the benefit of it under Florida law whether or not the debtor affirmatively claims the exemption. Id. at 205, 209. Consistent with Franzese, several other courts have given an expansive interpretation to the phrase "receive the benefits" in section 222.25(4) of the Florida Statutes....

...he Debtor's non-filing spouse is protected by the constitutional homestead provision. As a result, the Debtor indirectly receives the benefit of the Florida homestead exemption, making her ineligible for the personal property exemption claimed under section 222.25(4) of the Florida Statutes....

...NOTES [1] The Debtor initially claimed her entire interest in the Vehicle exempt under 11 U.S.C. § 522(b)(3)(B). She filed her first amended Schedule C [DE 25] on January 6, 2010, deleting the reference to 11 U.S.C. § 522(b)(3)(B) and claiming a $1,000.00 exemption under section 222.25(1) of the Florida Statutes and a $2,230.00 exemption under section 222.25(4) of the Florida Statutes....

...Trustee's Amended Notice of Filing Exhibit "1" to Objection to Claimed Exemptions and Application for Turnover [DE 30]. [4] The Debtor claims an exemption in $1,000.00 of the value of the Vehicle under the independent automobile exemption provision, section 222.25(1) of the Florida Statutes. The claimed $2,230.00 exemption represents the remainder of the $4,000.00 exemption available under section 222.25(4), after application of the exemption to other personal property. The Debtor's amended Schedule C [DE 25] includes claimed exemptions for "Cash on Hand" in the amount of $35.00 and "Furs and Jewelry" in the amount of $1,735.00, both under section 222.25(4)....

...wed by law. For this reason it is appropriate to sustain the Trustee's objection by limiting the exemption claim to the value of these properties to $1,000 each, the amount allowed by Art. X, Section 4(a)(2) of the Florida Constitution and Fla.Stat. § 222.25 respectively....

...She contends that in the event his equity exceeds the $1,000.00 cap fixed by the Statute, that equity is subject to administration by the Trustee. In opposition, the Debtor contends that the automobile is personal property and that he may claim the equity in the truck as exempt not only pursuant to Fla.Stat. § 222.25 but also pursuant to Article X, Section 4 of the Florida Constitution....

...nner provided in Sections 222.07 and 222.08, Florida Statutes of 1941, F.S.A.") Furthermore, it is the individual claiming the exemption who is entitled to determine what items of personal property to exempt. See Fla.Stat. § 222.07. Florida Statute 222.25 provides, 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....

...t of a constitutionally provided exemption for personal property. No one can argue in good faith that an automobile is not personal property. Therefore, this Court is satisfied that the excess value over the $1,000.00 exemption provided by Fla.Stat. § 222.25 for motor vehicles may be claimed by the Debtor under the personal property exemption provided by the Florida Constitution....

...Accordingly, it is ORDERED, ADJUDGED AND DECREED that the Trustee's Objection to Claimed Exemptions be, and the same is hereby overruled. The Debtor's claim of exemption of the Debtor's equity in his automobile is hereby allowed in the amount of $1,000.00 pursuant to Fla.Sta. § 222.25....

...ing creditor, Leigh R. Miller ("Miller"). Miller has returned some of Ms. Orozco's personal property. Ms. Orozco, however, claims that the personal property remaining in Miller's possession is exempt from bankruptcy proceedings under Florida statute § 222.25(4). Miller asserts that Ms. Orozco is not entitled to the benefit of § 222.25(4) because her amendment was untimely and made in bad faith, and thus that the amendment was improper. Miller also contends that Ms. Orozco cannot use § 222.25(4) because she is receiving the benefit of the homestead exemption through her ex-husband. Lastly, Miller asserts that because Ms. Orozco has already claimed Florida's constitutional personal property exemption she cannot also use § 222.25(4) to exempt property. B. Florida Statute § 222.25(4) and "Receiving the Benefits" in the Bankruptcy Context In 2007 the Florida legislature provided an additional personal property exemption to debtors who do not or cannot take advantage of Florida's constitutional homestead provision. In re Hafner, 383 B.R. 350, 352-53 (Bankr.N.D.Fla.2008). Florida statute § 222.25(4) states the following: The following property is exempt from attachment, garnishment, or other legal process . . . . . . A debtor's interest in personal property, not to exceed $4,000, if the debtor does not claim or receive the benefits of a homestead exemption under s. 4, Art. X of the State Constitution . . . Fla. Stat. § 222.25(4) (2010). Courts had agreed that only those debtors who do not benefit directly or indirectly from Florida's constitutional homestead provision may use § 222.25(4) to exempt additional personal property....

...But they had "disagree[d] on how to determine when a debtor `receiv[es] the benefits'" of Florida's constitutional homestead provision. In re Iuliano, No. 8:09-bk-04904, 2010 WL 5452726, at *2, 2010 Bankr.LEXIS 4728, at *6 (Bankr.M.D.Fla. Dec. 28, 2010). Some courts interpreted § 222.25(4)'s language "receive the benefits" broadly. Those courts held that a debtor may only utilize the benefits § 222.25(4) if the debtor clearly expressed an intent to abandon the homestead property....

...otect the property from creditors, therefore, leaving the property open to bankruptcy administration. Id. The courts that adopted this view believed that a debtor who had not utilized either of the former protection methods should be entitled to the § 222.25(4) exemption....

...3, 2011) ( available at http://www.floridasupremecourt.org/ decisions/2011/sc09-751.pdf.). The Supreme Court of Florida in Osborne v. Dumoulin adopted the narrow view of the language "receives the benefits." Id. The Court held that the narrow view more faithfully applied the language and intent of § 222.25(4)....

...n . . . are not `benefits of a homestead exemption.'" 55 So.3d at 588. The Court concluded that where a debtor does nothing to prevent administration by the bankruptcy trustee he loses the benefit of the homestead exemption and may properly use *477 § 222.25(4) to exempt $4,000 of personal property....

...Additionally, in In re Shoopman, the court stated that the timeliness of the Debtor's intent to disclaim his homestead was "irrelevant to the Court's determination that the Debtor did not receive the benefits of the constitutional homestead exemption." That court went on to conclude that a debtor would be entitled to use § 222.25(4) regardless of whether he timely amended his schedule as long as he did "not claim the constitutional homestead exemption or....

...March 25, 2008). Ms. Orozco followed the same procedure as the debtor in In re Martias. The amendment was timely, and therefore, Ms. Orozco was not receiving the benefit of the homestead exemption when she asserted her personal property exemption under § 222.25(4)....

...However, if the amendment is shown to be improper it may be disallowed even if timely. Assuming for the moment that the amendment was proper, I first address Miller's concern that Ms. Orozco was receiving an indirect benefit through her ex-husband as well as Miller's contention that § 222.25(4) cannot be used in conjunction with Florida's constitutional personal property exemption....

...Orozco has effectively disclaimed her homestead exemption she was otherwise receiving the benefit through her ex-husband. Miller relies on In re Watford, 427 B.R. 552 (Bankr. S.D.Fla.2010). In that case, the court held that the debtor received an indirect benefit and disallowed the § 222.25(4) personal property exemption because the debtor was indirectly receiving the benefit of the homestead exemption through her husband....

...the homestead exemption upon him). So long as Ms. Orozco's final amendment to her Schedule C was proper, she has not received a benefit under the constitutional homestead exemption and she is entitled to the $4,000 personal property exemption under § 222.25(4). This finding would necessitate the turnover of Ms. Orozco's personal property levied upon by Miller. However, the propriety of Ms. Orozco's final amendment must be looked at. E. Stacking § 222.25(4) and Article X, Section (4)(a)(2) personal property exemptions Miller contends that both personal property exemptions cannot be used simultaneously....

...See id.; In re Mootosammy, 387 B.R. 291, 297-98 (Bankr.M.D.Fla.2008); see also In re Hafner, 383 B.R. 350, 353-54 (Bankr. N.D.Fla.2008). So long as Ms. Orozco's final amendment to her Schedule C is proper she may exempt personal property worth up to $5,000 by stacking § 222.25(4) and Article X, Section (4)(a)(2) of Florida's Constitution's personal property exemptions together....

...onvincing evidence. In re Martias, 2008 WL 906776, at *5. If bad faith, prejudice or concealment is proven, the homestead would remain an exempt asset. Hence, if bad faith, prejudice, or concealment are proven, Ms. Orozco will not be entitled to use § 222.25(4)'s personal property exemption because the schedules will reflect that she affirmatively claimed the benefit of Florida's constitutional homestead exemption....

...Here, Miller claims that the expense of storage, inspection and appraisal of the personal property was undertaken in reliance on the perception that Ms. Orozco could claim only the $1,000 constitutional personal property exemption and not the statutory exemption allowed under § 222.25(4)....

...Miller undertook the inspection, appraisal and storage of the property before Ms. Orozco filed her bankruptcy petition, let alone before she gave any notice that she intended on claiming her homestead exemption and before Ms. Orozco would have been precluded from using the additional exemption found under § 222.25(4)....

...xemption does not constitute sufficient prejudice, concealment, or bad faith to disallow the final amendment to the Debtor's schedules. She is accordingly not receiving the benefit of the constitutional homestead exemption and she can use Fla. Stat. § 222.25(4) to claim an additional $4,000 exemption for personal property....

...nstitutional homestead exemption. [6] He listed the value of the claimed exemption as zero, and he listed the current value of the property (without deducting the exemption) as $129,000. The Debtor also claimed an exemption in a 2003 GMC Envoy under section 222.25(1) of the Florida Statutes, which provides a debtor a $1000 automobile exemption. [7] A number of other claims to exemptions on the Debtor's original Schedule C cited section 4(a)(2) of the Florida Constitution—i.e., the $1000 personal property exemption. [8] Nowhere on the original Schedule C did the Debtor reference section 222.25(4) of the Florida Statutes, which provides for the $4000 wildcard exemption....

...al property and $1000 for one motor vehicle. [20] On December 7, 2010, just two days before a scheduled hearing on the Motion to Compel, the Debtor filed an Amended Schedule C—Property Claimed as Exempt [21] ("Amended Schedule C"), which identified section 222.25(4) of the Florida Statutes as the legal authority that supports the Debtor's claimed personal property exemption....

...[24] The Court now has before it both the Trustee's Motion to Compel and the Trustee's Objection to Amendment. The facts and procedural history described above present the Court with two issues: (1) was there ever an original claim of the wildcard exemption under section 222.25(4), and (2) if there was no such claim, can the Debtor now make such a claim of exemption, or is he precluded from doing so either as a matter of bad faith, prejudice, or under the principles of res judicata? Conclusions of Law The Cou...

...f the estate whether the debtor will retain or surrender the property and whether the property is claimed as exempt. [28] As noted above, the first question before the Court is whether there was ever an original claim of the wildcard exemption under section 222.25(4)....

...The Court finds that the Debtor's original Schedule C does not claim the wildcard exemption. Instead, it explicitly claims Florida's constitutional exemptions under *561 Article X for both personal property [29] and the homestead exemption. [30] The plain language of section 222.25(4) precludes a debtor from simultaneously claiming both the wildcard exemption and the constitutional homestead exemption....

...so claimed. The Court concludes that an implicit claim of an unidentified $4000 exemption, one that can only be divined by finding and applying the correct mathematical calculation, cannot suffice to establish a claim of the wildcard exemption under section 222.25(4)....

...Accordingly, the Court previously entered an Order Granting Trustee's Motion to Compel [45] and an Order Sustaining Trustee's Objection to Debtor's Amended Claim of Exemptions. [46] NOTES [1] In re Doan, 672 F.2d 831, 833 (11th Cir. 1982). [2] See Fla. Stat. § 222.25(4) (2009) (providing for an additional $4000 exemption in personal property "if the debtor does not claim or receive the benefits of a homestead exemption under s. 4, Art. X of the State Constitution") (sometimes referred to as the "wildcard exemption"). [3] Doc. No. 28. [4] Doc. No. 35. [5] Doc. No. 1, at 12-13, Schedule C—Property Claimed as Exempt. [6] Fla. Const. art. X, § 4(a)(1). [7] See Fla. Stat. § 222.25(1) (exempting "[a] debtor's interest, not to exceed $1,000 in value, in a single motor vehicle")....

...[15] Doc. No. 21. [16] Bankr.M.D. Fla. R. 2002-4. [17] Doc. No. 24. [18] Doc. No. 28. [19] Doc. No. 29. [20] Id. ¶ 2. [21] Doc. No. 34. [22] Doc. No. 35. [23] Id. at ¶ 9.B. [24] See note 12 supra. [25] Fla. Const. art. X, § 4(a)(2). [26] Fla. Stat. § 222.25(1). [27] Fla. Stat. § 222.25(4). [28] 11 U.S.C. § 521(a)(2)(A). [29] Fla. Const. art. X, § 4(a)(2). [30] Fla. Const. art. X, § 4(a)(1). [31] See note 2 supra. [32] Whether the Debtor in this case is eligible for the § 222.25(4) wildcard exemption need not be determined based on the Court's determination infra that his late-filed attempt to claim the wildcard is barred by the doctrine of res judicata....

...tion); In re Guididas, 393 B.R. 251, 256 (Bankr. M.D.Fla.2008) (finding the debtor's post-discharge amendments to be untimely because the petition date is the controlling date to determine whether a debtor is entitled to the wildcard exemption under § 222.25(4))....

...ction to Claim of Exemption of personal property claimed by Raymond T. Bezares and Marci J. Bezares, the Debtors in the above-captioned Chapter 7 Bankruptcy case. In its Order, the Court ruled that the amendment by the Legislature of Florida Statute 222.25(4) increased the exemption provided by Florida Constitution, Article X, of $1,000 to $5,000 and was not an impermissible attempt by the Legislature to amend the Florida Constitution....

...s proper and should be reaffirmed for the following reasons. The Trustee's basis for support of her objection to the Debtors' personal property exemption claim is the proposition that it is clear from the language of the amendment to Florida Statute 222.25(4) that the Legislature intended to provide a maximum of $4,000 as the allowed personal property exemption....

...on, Article X, Section 4(a)(2) in addition to the $4,000 by the amendment. Also debtors can claim an additional automobile up to the value of $1,000. Equally, a debtor can claim interest in professionally prescribed health aids under Florida Statute 222.25(2)....

...the Debtors shall stand as entered. In light of the foregoing, it is unnecessary to consider the Trustee's request to certify the question of the constitutionality of the amendment to the Florida Constitution Article X, Section 4, by Florida Statute 222.25(4) to the Eleventh Circuit Court of Appeals pursuant to 28 U.S.C....

...Mickler, Jacksonville, FL, for Debtor. FINDINGS OF FACT AND CONCLUSIONS OF LAW JERRY A. FUNK, Bankruptcy Judge. This case is before the Court upon the Chapter 7 Trustee's Objection to Debtor's Claim of Exemptions as to personal property under Florida Statute § 222.25(4)....

...operty pursuant to the Florida Constitution and claiming such Real Property as exempt as tenants by the entireties with his non-filing spouse; and (ii) claiming all personal property as exempt pursuant to Fla. Const. Art. X § 4(a)(2) and Fla. Stat. § 222.25(4)....

...s amended claim of exemptions. 10. The appraiser hired by the Trustee values the Debtor's interest in the tangible personal property at a total of $10,105.50. (Tr.'s Ex. 7). CONCLUSIONS OF LAW The Florida legislature recently enacted Florida Statute § 222.25(4), for the purpose of providing debtors who do not directly or indirectly receive the benefit of the constitutional homestead exemption, with an additional $4,000 personal property exemption. Specifically, Fla. Stat. § 222.25(4) provides: The following property is exempt from attachment, garnishment or other legal process: (4) A debtors interest in personal property, not to exceed $4,000.00 if the debtor does not claim or receive the benefit of a homestead exemption under § 4, Article X of the State Constitution. This exemption does not apply to a debt owed for child support or spousal support. Fla. Stat. § 222.25(4)....

...In reaching its decision to sustain the trustee's objection, this Court focused upon the fact that the debtors had claimed the homestead exemption on the date their petition was filed. Id. Specifically, the Court stated that when examining whether a debtor may utilize § 222.25(4), it would consider; (1) whether the debtor claimed the benefit of the homestead exemption or (2) whether the debtor receives the benefit of the homestead exemption....

...The court also noted that the term "receive" is in the present tense and that a debtor who does not affirmatively claim the homestead exemption must not be able to indirectly receive its benefits in addition to taking advantage of the Statutory Personal Property Exemption. Id. Several other courts have interpreted § 222.25(4) since it was enacted in 2007....

...uant to the Florida Constitution and stated their intention to surrender their home, they did not receive the benefits of the Constitutional homestead exemption and therefore were entitled to the enhanced personal *754 property exemption pursuant to § 222.25(4)....

...a bankruptcy petition is filed, a debtor owns a home, lives in a home, and plans to reside in the home in the future, the debtor cannot claim the Statutory Personal Property Exemption." Id. at 205. The court also examined the legislative history to § 222.25(4) and found that it supports the conclusion that homeowners who do, or could, claim constitutional homestead protection are not entitled to the § 222.25(4) exemption....

...Subsequent to the court sustaining the trustee's objection the debtor filed a motion for rehearing. Id. at 921. In denying the motion for rehearing, the court looked to the decision issued by the court in Gatto and held that a debtor may claim the § 222.25(4) exemption when the debtor: (1) does not claim the property as exempt and (2) properly and timely files a statement of intention showing a clear and unambiguous intent to surrender the property. Id. at 923. In In re Magelitz, 386 B.R. 879, 880-881 (Bankr.N.D.Fla.2008), the debtor chose to claim $4,000 worth of personal property as exempt pursuant to § 222.25(4) instead of the home he was living in as of the date his petition was filed....

...Rather, the debtor stated that he would retain the home and continue to make the regular payments on it. Id. In sustaining the trustee's objection, the court stated that it agreed with reasoning in Morales, Gatto and Franzese, and held that in order to utilize § 222.25(4), a debtor with an interest in a homestead on the petition date must (1) not claim the property as exempt, and (2) timely and properly show a clear and unambiguous intent to abandon the property....

...The court also reasoned that, "[i]f the debtor retains possession of the homestead while also claiming the additional wildcard personal property exemption, he would be able to shield the home from creditors under Art. X, § 4, Fla. Const. and protect additional personal property under Fla. Stat. § 222.25(4)." Id....

...oopman, 2008 WL 817109, *1 (Bankr.S.D.Fla. March 25, 2008). In Shoopman, the debtor stated in his original Statement of Intention that he would reaffirm two mortgages on his home, and the trustee subsequently objected to his claim of exemption under § 222.25(4)....

...ent of Intention stated that she would reaffirm the mortgage on her homestead. Prior to the conclusion of the meeting of creditors, debtor amended her Schedule C to remove the claim of homestead exemption and claim a tax refund as exempt pursuant to § 222.25(4). [2] Id. Debtor also subsequently filed an amended Statement of Intention indicating that she intended to surrender her home. Id. The trustee objected to the debtor's claim of exemption under § 222.25(4) on the grounds that the debtor initially claimed the real property exempt as homestead....

...Thus, not only did the Debtor originally claim the property as exempt, he also failed to timely and properly show a clear and unambiguous intent to abandon the property. Based upon the facts and circumstances presented, the Debtor is not entitled to claim the additional personal property exemption of § 222.25(4)....

United States Bankruptcy Judge Florida Statute § 222.25(4) permits an individual who does not receive

...In this Chapter 7 case, the Debtor, Richard Lisowski, has claimed a mobile home on leased land as his exempt homestead under § 222.05 of the Florida Statutes. The issue is whether the Debtor is also entitled to claim up to $4,000 in personal property as exempt pursuant to § 222.25(4) of the Florida Statutes. A debtor may claim the personal property exemption provided by § 222.25(4) if the debtor "does not claim or receive the benefits of a homestead exemption under s....

...onal homestead exemption, a claim of exemption based on § 222.05 of the Florida Statutes is not a claim of exemption "under" the Florida Constitution. Consequently, the Debtor is entitled to claim the personal property exemption allowed pursuant to § 222.25(4) of the Florida Statutes....

...The Debtor also claimed the following personal property as exempt: (1) various household goods and personal effects, pursuant to article X, section 4(a)(2) of the Florida Constitution, and (2) his vehicle, to the extent of $1,000.00 in value, pursuant to § 222.25(1) of the Florida Statutes....

...Instead, the Debtor claims his interest in the Homestead Property as exempt solely pursuant to § 222.05 of the Florida Statutes, the "Modular Home Exemption." Further, in his second Amended Schedule, the Debtor claims that his household furnishings are exempt pursuant to § 222.25(4) of the Florida Statutes, instead of the Florida Constitution as previously claimed. Finally, the Debtor claims $1,905.00 of the total value of his vehicle as exempt pursuant to § 222.25(4) of the Florida Statutes, in addition to the $1,000.00 initially claimed as exempt pursuant to § 222.25(1) of the Florida Statutes. On March 31, 2008, the Trustee filed an Objection to the Debtor's Amended Claim of Exemptions. (Doc. 32). In the Objection, the Trustee asserts that the Debtor is not entitled to claim any personal property as exempt under § 222.25(4) of the Florida Statutes, because he has claimed or received the benefit of a homestead exemption under article X, section 4 of the Florida Constitution....

...awfully possess, by lease or otherwise, and claiming such house, mobile home, or modular home as his or her homestead, shall be entitled to the exemption of such house, mobile home, or modular home from levy and sale as aforesaid. Fla. Stat. 222.05. Section 222.25(4) of the Florida Statutes provides: 222.25....

...arnishment, or other legal process: *774 . . . (4) A debtor's interest in personal property, not to exceed $4,000, if the debtor does not claim or receive the benefits of a homestead exemption under s. 4, Art, X of the State Constitution. Fla. Stat. 222.25(4). In this case, the Debtor asserts that he is entitled to the expanded personal property exemption provided under § 222.25(4), because he does not "claim or receive the benefits of a homestead exemption under s....

...on for a place to live," and does not independently authorize an exemption for mobile homes. (Doc. 39, pp. 24). Consequently, the Trustee contends that the Debtor in this case is not entitled to the expanded personal property exemption allowed under § 222.25(4), because he has claimed a homestead exemption under the Florida Constitution by virtue of his claim under § 222.05....

...X of the State Constitution." If § 222.05 merely implements the constitutional homestead provision, so that a claim under the statute is essentially a claim under the Florida Constitution, then the debtor is not entitled to the expanded personal property exemption authorized by § 222.25(4), because he is claiming a homestead exemption "under" the Florida Constitution. On the other hand, if § 222.05 creates a separate basis for exempting certain dwelling houses, independently of the Florida Constitution, then the debtor may be entitled to the expanded personal property exemption authorized by § 222.25(4), because he is not claiming the exemption "under s....

...a Statutes is not a claim of exemption "under" the Florida Constitution. For the reasons set forth below, the Court finds that § 222.05 creates a separate statutory exemption, and does not simply implement or extend the Constitutional exemption. A. Section 222.25(4) must be interpreted according to its plain meaning. The issue in this case is whether the Debtor is entitled to claim the personal property exemption provided by § 222.25(4) of the Florida Statutes. Pursuant to the Statute, the exemption is available "if the debtor does not claim or receive the benefits of a homestead exemption under s. 4, Art. X of the State Constitution." Fla. Stat. 222.25(4)....

...The reason that courts consistently apply the "plain meaning" rule of statutory construction is that the language of a statute "is presumed to express congressional intent." In re Moss, 378 B.R. 655, 658 (S.D.Ala.2007). In this case, therefore, the Court will consider the Debtor's entitlement to the exemption provided by § 222.25(4) of the Florida Statutes by evaluating the language contained in the Statute....

...Section 222.05 provides a statutory exemption for mobile homes that are situated on land that is not owned by the debtor. The Statute cannot represent an extension of the Constitutional homestead exemption, however, because Constitutional provisions cannot be altered or expanded by legislative enactments. Conclusion Section 222.25(4) provides an exemption for personal property with a value not to exceed $4,000.00, "if the debtor does not claim or receive the benefits of a homestead exemption under s....

...The issue, therefore, is whether a debtor's homestead claim under § 222.05 of the Florida Statutes constitutes a claim of exemption "under" the Florida Constitution. If the Debtor's claim is not a claim "under" the Florida Constitution, he may be entitled *781 to the personal property exemption provided by § 222.25(4) of the Florida Statutes....

...tion. Consequently, the Debtor's claim that his mobile home is exempt pursuant to § 222.05 of the Florida Statutes is not a claim of exemption "under" the Florida Constitution. The Debtor is entitled to the personal property exemption allowed under § 222.25(4) of the Florida Statutes....

...The Vehicle is unencumbered. Immediately following the description of the Vehicle in the Debtor's Schedule B is the notation, "Dr. Prescribed medical aid to assist Debtor as she is disabled." [1] The Vehicle was also claimed as exempt in Schedule C [2] under section 222.25(2), Florida Statutes, which provides for the exemption of a "debtor's interest in any professionally prescribed health aids." The Debtor justifies her claim of exemption for the Vehicle on the basis that shortly before the filing of he...

...has "opted out" of the federal exemptions, so Florida debtors are allowed "only those exemptions permitted under Florida law." [11] Thus, Florida law both provides for and determines the extent of any exemptions that Florida debtors may claim. [12] Section 222.25, Florida Statutes, specifically exempts certain personal property "from attachment, garnishment, or other *581 legal process." In 1993, Florida added subsection (2) to include "[a] debtor's interest in any professionally prescribed hea...

...edical care. 2) Florida Courts Adopt the Driscoll Definition —Kirby, Allard, and Kahn The 1998 bankruptcy case of In re Kirby was Florida's first published decision that considered a claimed exemption of a professionally prescribed health aid under section 222.25(2), Florida Statutes....

...llowance of an automobile "even though it [was] `suited for use by the debtor given the limitations imposed by his injury.'" [42] Judge Briskman thus concluded that the Kirby motor home did not qualify as a professionally prescribed health aid under section 222.25(2), Florida Statutes....

...cannot be exempted as a health aid unless it is uniquely situated as a health aid." [48] He went on to conclude that the Allard van was "specifically designed" for the debtor and did, in fact, qualify as a professionally prescribed health aid under section 222.25(2), Florida Statutes....

...lity vehicle ("SUV"). The unmodified SUV met the debtors' needs because it "contain[ed] three rows of seating where their disabled child [could] sit separate from other children." [51] The Khan debtors argued that the vehicle met the requirements of section 222.25(2) "because a medical professional [had] prescribed them [the handicapped parking permit]." [52] Judge Briskman rejected this argument and again relied on the Driscoll definition....

...Simply put, allowing this honest Debtor to exempt the entire Vehicle by attaching a spinner device would open the door to a dishonest debtor's attempt to exempt any range of vehicles from a Maserati convertible to a luxury motor coach. As cruel as this reality may be, the Florida Legislature has seen fit to provide in section 222.25(1), Florida Statutes, a maximum $1000 exemption for a single vehicle to meet a debtor's transportation needs....

...ed Driscoll definition that was first applied to the modified van and bicycle in Hellen and then applied to the modified condominium in Man. The Court finds that only the modification itself—in this case, the spinner device alone—is exempted under section 222.25(2), Florida Statutes, as the Debtor's interest in a professionally prescribed health aid....

...at 961 (citing Fla. Stat. § 222.20 (1979)). [12] See Norwest Bank Nebraska, N.A. v. Tveten, 848 F.2d 871, 873 (8th Cir. 1988) (noting that "[w]hen the debtor claims a state-created exemption, the scope of the claim is determined by state law"). [13] § 222.25(2), Fla. Stat. (1993) (enacted pursuant to Session Law 93-256). The language of this subsection has not changed since its 1993 enactment. [14] The language exempting professionally prescribed health aids under Bankruptcy Code § 522(d)(9) is identical to section 222.25(2), Florida Statutes, except that the Florida language limits the exemption to "the debtor's interest" in such property....

...mainly utilized in semi trucks, forklifts, and riding lawnmowers; and "are also used for helping people with disabilities... to drive automobiles"). [117] Since 1993, when the Florida Legislature first provided for the motor vehicle exemption under section 222.25(1), Florida Statutes, it has not seen fit to raise the initial $1000 value limit....

...KILLIAN, JR., Bankruptcy Judge. This matter was heard August 28, 2008 on the Trustee's Objection to the Debtor's Claimed Exemptions. Duane and Cathy Heckman ("Debtors") claim they are entitled to the $4,000 personal property exemption set forth in section 222.25(4) of the Florida Statutes, which allows debtors who do not take advantage of the constitutional homestead exemption to claim personal property up to $4,000....

...Conversely, the Debtors insist that the homestead exemption under FLA. STAT. § 222.05 is statutory and distinct from constitutional homestead, and they are therefore entitled to the $4,000 personal property exemption since they do not claim or receive constitutional homestead benefits as FLA. STAT. § 222.25(4) requires....

...ction 4 of the Florida Constitution. Therefore, when the Debtors exempt their homestead under FLA. STAT. § 222.05, they do not claim the constitutional homestead. As such, the Debtors may seek the $4,000 personal property exemption under FLA. STAT. § 222.25(4)....

...They own and *739 reside in a 2002 mobile home located on a leased lot in Miramar Beach, Florida. On their Schedule C, the Debtors listed their mobile home as exempt pursuant to FLA. STAT. § 222.05. They also claimed personal property worth $4,000 as exempt under the FLA. STAT. § 222.25(4) exemption....

...The core of the Debtors' argument is that the homestead exemption under FLA. STAT. § 222.05 is statutory and therefore distinct from constitutional homestead. As such, the Debtors maintain that they are entitled to the $4,000 personal property exemption provided under FLA. STAT. § 222.25(4) since they have not claimed constitutional homestead....

...§ 222.05, mobile home owners who occupy the home, and whose home is legally located on land they do not own, may claim the mobile home as their homestead and therefore exempt it from levy and sale. For those who do not claim constitutional homestead or receive constitutional homestead benefits, FLA. STAT. § 222.25(4) allows a personal property exemption of up to $4,000. The Debtors argue that they are entitled to the $4,000 personal property exemption under FLA. STAT. § 222.25(4) since they exempted their homestead under FLA....

...§ 222.05, a statutory homestead provision, is an extension of homestead under Article X, section 4 of the Florida Constitution. A closer examination of the case law, the current and past Florida Constitutions, and the legislative history for FLA. STAT. §§ 222.05 and 222.25 supports the conclusion that the homestead exemption under FLA. STAT. § 222.05 is statutory and distinct from Florida's constitutional homestead exemption. Therefore, the Debtors are entitled to the $4,000 personal property exemption under FLA. STAT. § 222.25(4)....

...Turner, 426 So.2d 539, 544 (Fla.1982) (quoting Sparkman v. State ex rel Scott, 58 So.2d 431, 432 (Fla.1952))). In In re Bezares, 377 B.R. 413 (Bankr.M.D.Fla.2007), aff'd on reh'g, 383 B.R. 796 (Bankr.M.D.Fla. 2007), the court had the opportunity to apply this principle to FLA. STAT. § 222.25(4). There, a debtor who claimed no homestead exemption argued that he was entitled to the $1,000 personal property exemption under Article X, section 4(a)(2) of the Florida Constitution and the $4,000 personal property exemption under FLA. STAT. § 222.25(4) for a total of $5,000. Id. at 414. The Trustee objected and argued that the effect of FLA. STAT. § 222.25(4) was to increase the constitutional personal property exemption by $3,000 for a total of $4,000. Id. The court sided with the debtor and explained that it is a "well-established principle that the legislature has no power to abrogate, alter, or amend, any provisions of the Constitution." Id. Finally, the plain language of FLA. STAT. § 222.25 also lends support to the conclusion that FLA....

...When interpreting clear and unambiguous statutes, courts must construe provisions according to their plain and ordinary meaning. See Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) and the cases cited therein. FLA. STAT. § 222.25(4) states, in relevant part, that a debtor is entitled to the $4,000 "if the debtor does not claim or receive the benefits of a homestead exemption under s....

...§ 222.05 is not an extension of Article X, section 4 of the Florida Constitution. Therefore, when the Debtors claim their home to be exempt under FLA. STAT. § 222.05, it is not the equivalent of claiming constitutional homestead. Furthermore, they do not benefit from constitutional homestead under FLA. STAT. § 222.25(4) since they do not own the land on which the mobile home is located, and Article X., section 4 benefits apply only to landowners. As such, the Debtors may claim as exempt personal property up to $4,000 under the exemption provided under FLA. STAT. § 222.25(4)....

...13) filed by the Debtors Kevin Richard Burpee and Candace Mae Burpee (collectively, "Debtors"). An evidentiary hearing was held on September 21, 2009 at which the Debtors, the Trustee, and their respective counsel appeared. The Objection addresses the Debtors' entitlement to the $4,000.00 personal property exemption of Section 222.25(4) of the Florida Statutes, enacted by the Florida Legislature in 2007. The Debtors claim several assets as exempt pursuant to Section 222.25(4) in their Schedule C, including a 2002 Ford Windstar and a 2004 Ford Taurus (Doc....

...The Debtors claim fifty percent of the Property's value as exempt homestead *871 property in Schedule C pursuant to Article X, Section 4(a) of the Florida Constitution and Fla. Stat. Sections 222.01, 222.02, and 222.05 (Doc. No. 1). The Trustee asserts the Debtors are not entitled to claim the Section 222.25(4) exemption because they are receiving the benefits of the homestead exemption. Courts interpreting Section 222.25(4) have reached differing conclusions on the operation of this controversial statute....

...M.D.Fla.2008) (each concluding that, where debtor retains the home, debtor receives the benefit of Florida's constitutional homestead exemption and is not entitled to the $4,000.00 personal property exemption). Given the divergent opinions of the Courts interpreting Section 222.25(4), the Eleventh Circuit Court of Appeals recently certified the following question to the Florida Supreme Court for resolution: Whether a debtor who elects not to claim a homestead exemption and indicates an intent to surrender the property is entitled to the additional exemptions for personal property pursuant to Florida Statute Section 222.25(4)....

...decision will conform to the decision of a higher court providing much needed guidance on this controversial statute. The parties have agreed the amount of $3,865.00 is the maximum exemption amount the Debtors may claim for the vehicles pursuant to Section 222.25(4) if the Court finds they are entitled to claim the Section 222.25(4) exemption. Accordingly, it is ORDERED, ADJUDGED AND DECREED that the Court will abate ruling on whether the Debtors are entitled to claim the Fla. Stat. Section 222.25(4) exemption until the decisions of the Florida Supreme Court and the Eleventh Circuit Court of Appeals are issued on the question certified by the Eleventh Circuit Court of Appeals in In re Dumoulin, 326 Fed.Appx....

...have thirty days to file any supplemental briefs to clarify or argue any matters relevant to the specific facts of this case; and it us further ORDERED, ADJUDGED AND DECREED that, if it is determined the Debtors are entitled to claim the Fla. Stat. Section 222.25(4) exemption, the claim of *872 exemption for the vehicles shall be limited to $3,865.00.

-5- section 222.25(4) narrows the relevant time that a debtor

...Pyatte's individually-owned personal property equals the sum of $8,400.21. On their schedule of exemptions filed with the bankruptcy petition, the Debtors claimed all of the personal property ($8,400.21) as exempt pursuant to either Fla. Const. art. X, § 4(a)(2), or Fla. Stat. § 222.25(4). Article X, § 4(a)(2) of the Florida Constitution provides that a debtor may claim "personal property to the value of one thousand dollars" as exempt. Fla. Const. art. X, § 4(a)(2). Section 222.25(4) of the Florida Statutes provides that a debtor may claim personal property up to the value of $4,000.00 as exempt, unless the debtor either claims or receives the benefit of a homestead exemption under Art. X, § 4 of the Florida Constitution. Fla. Stat. § 222.25(4)....

...d exemptions in the total amount of $3,400.21. Pursuant to the Debtors' calculations, all of their personal property may be claimed as exempt without exceeding the dollar limitations contained in Article X, § 4(a)(2) of the Florida Constitution and § 222.25(4) of the Florida Statutes....

...In addition to the jointly-owned property, Mr. Perri individually owns personal property with a value of $289.82. On their schedule of exemptions, the Debtors claimed virtually all of their personal property as exempt pursuant to Fla. Const. art. X, § 4(a)(2), Fla. Stat. § 222.25(4), or Fla. Stat. § 222.25(1), the statute that provides an exemption for a "debtor's interest, not to exceed $1,000 in value, in a single motor vehicle." The total value of the personal property claimed as exempt under these provisions is $10,793.86....

...Black individually owns personal property, including two vehicles, with a value of $6,725.82. On their schedule of exemptions, the Debtors claimed personal property with a total value of $10,408.54 as exempt. The exemptions were claimed pursuant to Fla. Const. art. X, § 4(a)(2), Fla. Stat. § 222.25(4), Fla. Stat. § 222.25(1), and Fla....

...Johnson individually owns personal property with a value of $7,389.00, including the equity in two vehicles. On their schedule of exemptions, the Debtors claimed personal property with a total value of $11,000.00 as exempt. The exemptions were claimed pursuant to Fla. Const. art. X, § 4(a)(2), Fla. Stat. § 222.25(4), and Fla. Stat. § 222.25(1)....

...enancy by the entireties property to the extent of the spouses' joint debts."). Instead, the Debtors claim their entireties property as exempt pursuant to the exemptions for personal property provided by Fla. Const. art. X, § 4(a)(2) and Fla. Stat. § 222.25(4)....

personal property *160pursuant to Florida Statutes § 222.25(4) (the “Personal Property Exemption”) while Diane

extent of $1,000, as permitted under Fla. Stat., § 222.25(1).40 The District Court affirmed on March 17

...ORDER ON TRUSTEE'S OBJECTION TO CLAIM OF EXEMPTIONS PAUL M. GLENN, Chief Judge. THIS CASE came before the Court to consider the Trustee's Objection to Claim of Exemptions. (Doc. 15). On their Schedule C, the Debtors listed various items of personal property as exempt pursuant to § 222.25(4) of the Florida Statutes. The Trustee asserts that the exemptions under § 222.25(4) are not available to the Debtors because they are receiving the benefits of a homestead exemption pursuant to the Florida Constitution. Based on the decision of the Supreme Court of Florida in Osborne v. Dumoulin, *292 55 So.3d 577 (Fla.2011), the Court finds that the Trustee's Objection to Claim of Exemptions should be overruled, and the exemptions claimed by the Debtors under § 222.25(4) of the Florida Statutes should be allowed....

...On their Schedule C, the Debtors listed their household furnishings and personal effects as exempt pursuant to § 222.061 of the Florida Statutes. The Debtors also listed their financial accounts, computer equipment, and a portion of their interest in the vehicles as exempt pursuant to § 222.25(4) of the Florida Statutes. The total amount of the exemptions claimed pursuant to § 222.25(4) equals the sum of $8,000.00. Discussion The Chapter 7 Trustee asserts that the exemptions provided by § 222.25(4) of the Florida Statutes are not allowable in this case because the Debtors are receiving the benefits of a homestead exemption under article X, section 4 of the Florida Constitution....

...erty "to the value of" $1,000.00. Fla. Const. Art. X, § 4(a)(2). Further, certain statutory exemptions for personal property are provided *293 by Chapter 222 of the Florida Statutes. The personal property exemption at issue in this case is found at § 222.25(4) of the Florida Statutes. Section 222.25(4) of the Florida Statutes provides: 222.25....

...t, garnishment, or other legal process: ... (4) A debtor's interest in personal property, not to exceed $4,000.00, if the debtor does not claim or receive the benefits of a homestead exemption under s. 4, Art. X of the State Constitution. Fla. Stat. § 222.25(4) (Emphasis supplied)....

...y the Florida Constitution. If he does not claim or receive the benefits of the constitutional homestead exemption, however, he may claim an additional exemption for personal property with a value of $4,000.00 pursuant to the "wildcard" exemption of § 222.25(4)....

...In some bankruptcy cases, Florida debtors who own and reside in a home do not claim the homestead exemption on their bankruptcy schedules. These same debtors, however, sometimes claim exemptions for personal property in the amount allowed pursuant to the wildcard exemption of § 222.25(4)....

...Dumoulin In Osborne v. Dumoulin, 55 So.3d 577 (Fla.2011), the Supreme Court of Florida addressed the following question, as rephrased, that was certified by the Eleventh Circuit Court of Appeals: Whether for the purpose of the statutory personal property exemption in section 222.25(4), a debtor in bankruptcy receives the benefits of Florida's article X, section 4, constitutional homestead exemption where the debtor owns homestead property but does not claim the homestead exemption in bankruptcy and the trustee's...

...not otherwise present an obstacle to the bankruptcy trustee's administration of the estate, then the debtor in bankruptcy is not receiving the benefits of the homestead exemption and is eligible to claim the statutory personal property exemption of section 222.25(4)....

...ter the home as an asset of the bankruptcy estate. Accordingly, the Court found that a debtor who does not claim a constitutional homestead exemption in a bankruptcy case generally may claim the "wildcard" exemption for personal property pursuant to § 222.25(4) of the Florida Statutes....

...Florida's constitutional homestead exemption in his bankruptcy case, and who does not have a spouse who separately asserts the homestead exemption for a jointly-owned home, is entitled to claim the "wildcard" personal property exemption pursuant to § 222.25(4) of the Florida Statutes....

...property as his residence. This Court has previously determined that a debtor in similar circumstances receives the benefits of the constitutional homestead exemption, and therefore does not qualify for the wildcard personal property exemption under § 222.25(4) of the Florida Statutes....

...is not claimed in his bankruptcy case, even if the homestead property is likely to be abandoned by the trustee in the case because it has no value for the estate. Consequently, such a debtor may claim the "wildcard" personal property exemption under § 222.25(4) of the Florida Statutes, provided he does not otherwise receive the benefits of the homestead exemption....

...e during and after the bankruptcy case. Based on the reasoning in Dumoulin, however, this Court finds that a debtor who does not claim the homestead exemption in his bankruptcy case is entitled to claim the wildcard personal property exemption under § 222.25(4), even if he simultaneously declares his intent to retain the homestead property and reaffirm the home mortgage....

...Milton, 63 Fla. 533, 58 So. 718, 719 (1912)). We apply the same rule of liberal construction in favor of the statutory exemption to determine when a debtor "receive[s] the benefits" of the homestead exemption and thus becomes ineligible to claim the section 222.25(4) personal property exemption....

..."not claim or receive the benefits of [the article X] homestead exemption." Osborne v. Dumoulin, 55 So.3d 577. Under this reasoning, the debtor's statement of his intent to either retain or abandon the homestead is largely irrelevant for purposes of § 222.25(4), as long as the property is "property of the estate" subject to administration in the bankruptcy case....

...ir bankruptcy case. There was no equity in the homestead, but the debtors filed a Statement of Intent to retain the property. In re Iuliano, 2011 WL 1627172, at *1. At the same time, the debtors claimed the wildcard personal property exemption under § 222.25(4) of the Florida Statutes, and the trustee objected to the debtors' claim of the personal property exemption....

...a Statement indicating their intent to retain the homestead property. In these circumstances, the Debtors do not receive the benefits of the constitutional homestead exemption and are entitled to claim the wildcard personal property exemption under § 222.25(4) of the Florida Statutes....

...engaged in postpetition efforts to maintain the Home as their residence. The Statement of Intention and subsequent efforts to perform the intention have no effect on the Debtors' surrender of the property for administration by *299 the trustee, and § 222.25(4) should be interpreted liberally in favor of allowing the exemption provided. Accordingly: IT IS ORDERED that: 1. The Trustee's Objection to Claim of Exemptions is overruled. 2. The exemptions claimed by the Debtors, Edwin Wayne Rodale and Jamie Cathleen Rodale, pursuant to § 222.25(4) of the Florida Statutes are allowed. NOTES [1] The constitutional homestead exemption is not the only benefit for a homestead, but it is the benefit that is the subject of examination for the purpose of § 222.25(4) Fla....

contended that it was exempt under Fla. Stat. § 222.25(1) and In re Harrelson, 311 B.R. 618 (Bankr.M

...ursuant to Fla. Stat. Section 222.11. They claim the two Wachovia savings accounts, household furnishings *243 and apparel, jewelry, firearms, and business inventory as fully exempt pursuant to the statutory personal property exemption of Fla. Stat. Section 222.25(4). They claim the Ford Expedition as fully exempt pursuant to Fla. Stat. Sections 222.25(1) (in the amount of $2,000.00) and 222.25(4) (in the amount of $500.00). Trustee's Pleadings and Adversary Proceeding The Trustee filed an Objection to the Debtors' exemptions asserting: 1. The Debtors are not entitled to the $2,000.00 personal property exemption of Fla. Stat. Section 222.25(4) because they are receiving the benefit of the Florida homestead exemption....

...The Wachovia account balances listed in Schedules B and C are inaccurate as of the Petition Date. 4. The Debtors are sole proprietors and are ineligible to claim wage exemptions pursuant to Fla. Stat. Section 222.11. 5. The Debtors are not entitled to the $2,000.00 Fla. Stat. Section 222.25(1) exemption claim in the Ford Expedition, but are only entitled to an exemption of $1,000.00 pursuant to Fla. Stat. Section 222.25(1) because the vehicle is titled in Mr....

...The Petition was accompanied by all documents required pursuant to Federal Rule of Bankruptcy Procedure 1007, including Schedule C, in which the Debtors claim two income tax refund claims, one in the amount of $2,506 and the other in the amount of $3,443. Both claims of exemption are based on Florida Statute § 222.25....

...She also objects to the Debtors' exemption claim of the two income tax refunds. This Objection is based on the contention of the Trustee that no portion of the tax refund claim represents an earned income tax credit and the tax return claimed is not within the exemption provided for by Florida Statute § 222.25....

...Michaels, 840 F.2d 901 (11th Cir.1988); In re Moody, 241 B.R. 238 (Bankr.M.D.Fla.1999); In re Lancaster, 161 B.R. 308 (Bankr.S.D.Fla.1993); In re Truax, 104 B.R. 471 (Bankr.M.D.Fla.1989). The claim under consideration is not claimed under Florida Statute § 222.11 but under Florida Statute § 222.25. Last year, SB 150, that is Senate Bill 150, substantially amended section 222.25 of the Florida Statutes....

exemption under the Florida Constitution. Fla. Stat. § 222.25(4). In this case, the Debtor is a trustee and

on Schedule C, pursuant to Florida Statute Section 222.25(1). 4. The debtor had purchased the motor vehicle

equity in an automobile pursuant Florida Statute § 222.25. Debtor reported $24,480.00 of unsecured debt

Introduction Pursuant to Florida Statutes section 222.25(4), a debtor in bankruptcy may *843exempt his

in value, in a single motor vehicle." Fla.Stat. § 222.25(1). The debtor has failed to account for personal

personal property exemptions provided by Fla. Stat. § 222.25(4) and the Florida constitution. The Debtors were

is these new detailed provisions. . Fla. Stat § 222.25(4). This statute allows a Florida debtor who does

...Specifically, the issue presented to this Court is whether a debtor may seek to exempt $5,000 in personal property, utilizing both the $1,000 constitutional exemption and the enhanced $4,000 Statutory Personal Property Exemption of Florida Statutes Section 222.25(4) (Statutory Exemption), if the non-filing spouse owns the home in which the debtor resides and the debtor does not claim or "receive the benefits" of the homestead exemption provided for by the Florida Constitution....

...It is the Trustee's contention that the Debtor has the power to prevent the conveyance or mortgaging of the property and, therefore, he receives the benefit of the homestead exemption and should be precluded from claiming the enhanced personal property exemption pursuant to Florida Statutes § 222.25(4)....

...Further, the court held that a debtor may only claim the Statutory Exemption if the debtor surrenders the homestead. Id. at 206. The Statutory Exemption became effective on July 1, 2007, prior to the Debtor filing his Petition for Relief. Florida Statute § 222.25(4)(2007) provides in pertinent part, as follows: 222.25 Other individual property of natural persons exempt from legal process.—The following property is exempt from attachment, garnishment, or other legal process: (4) A debtor's interest in personal property, not to exceed $4,000, if the debtor does not claim or receive the benefits of a homestead exemption under s....

...The Debtor in the current case before this Court is not claiming or otherwise receiving the benefits of the Florida Constitutional homestead exemption under Section 4, Article X of the Florida Constitution and, as a result, the Debtor is entitled to a $4,000 personal property exemption as contained in Fla. Stat. § 222.25 (2007). Fla. Stat. § 222.25(4) provides that the a debtor is entitled to the $4,000 personal property exemption "if the Debtor does, not claim or receive the benefits of a homestead exemption under Section 4, Article *741 X of the Florida Constitution." The plain language of Fla. Stat. § 222.25(4) allows a debtor a $4,000.00 personal property exemption under Florida law, so long as the debtor is not taking advantage of the homestead exemption pursuant to Section 4, Article X of the Florida Constitution....

...ed to claim the $4,000 Statutory Exemption. In the case of In re Hernandez, 2008 WL 1711528 (Bankr.S.D.Fla.2008), the debtor listed personal property exemptions in excess of $5,000.00 and the trustee objected alleging that the Statutory Exemption of § 222.25(4) was not applicable to the debtor because he listed his home as exempt as tenants by the entireties (TBE) property....

...Based on the foregoing this Court is satisfied that the Debtor, Enock Sanon, did not "receive the benefits" of the constitutional exemption and, accordingly, he is entitled to claim both the $1,000 constitutional exemption and the $4,000 enhanced personal property exemption pursuant to Section 222.25(4), Florida Statutes....

...ORDERED, ADJUDGED AND DECREED that the Debtor, Enock Sanon, is entitled to claim personal property exemptions totaling $5,000 pursuant to Article X, Section 4 of the Florida Constitution which provides for $1,000 and the $4,000 Statutory Personal Property Exemption provided for by Florida Statute § 222.25(4).

...Osborne, Boca Raton, FL, for Appellant. Patrick S. Scott, Fort Lauderdale, FL, for Appellee. ORDER AFFIRMING BANKRUPTCY COURT'S JUDGMENT AND CLOSING CASE ADALBERTO JORDAN, District Judge. This bankruptcy appeal involves the interpretation of Fla. Stat. § 222.25(4), a statute dealing with personal property exemptions....

...Smith did not oppose this motion, and the bankruptcy court issued an order granting Countrywide relief from the stay in January of 2008. Mr. and Mrs. Smith vacated the property in March of 2008. Mr. Smith asserted an exemption from his bankruptcy estate under Fla. Stat. § 222.25(4) for $4,000 in equity in a 2002 Chevrolet automobile that he owns. The bankruptcy court granted Mr. Smith his discharge in February of 2008. No debts were found to be non-dischargeable. The trustee filed an objection to Mr. Smith's claimed $4,000 exemption under § 222.25(4)....

...The bankruptcy court, in a 6-page *357 order, overruled the trustee's objection. This appeal followed. II. DISCUSSION The bankruptcy court's findings of fact are subject only to clear error review on appeal, but its interpretation and application of Fla. Stat. § 222.25(4) is subject to de novo review. See In re Chase & Sanborn Corp., 904 F.2d 588, 593 (11th Cir. 1990). The only issue here is the bankruptcy court's interpretation and application of a statute, so review is plenary. The Florida Legislature amended § 222.25(4) in July of 2007 to increase certain personal property exemptions....

...X, § 4, and the claimed exemption for a tenancy by the entireties was deleted (with the amendment relating back to the date of filing). Third, Mr. Smith had actually moved out of the property. Fourth, Mr. Smith had not received any benefits of homestead protection within the meaning of § 222.25(4), and any homestead protection held by Mrs....

...ez, 2008 WL 1711528, *3 (Bankr.S.D.Fla.2008) (where the non-debtor spouse retained her right to claim homestead), were simply not present. The trustee first argues that a debtor "receives the benefits" of a homestead exemption, within the meaning of § 222.25(4), if at any time the debtor owned homestead property....

...Again, the trustee's position finds some support in some Florida bankruptcy cases. See, e.g., In re Magelitz, 386 B.R. 879, 884 (Bankr.N.D.Fla. 2008) ("in order for a debtor who has an interest in homestead to claim the $4,000 personal property exemption under Fla. Stat. § 222.25(4), the debtor must not (1) claim the property as exempt, and (2) timely and properly show a clear and unambiguous intent to abandon the property"); In re Morales, 381 B.R....

...12) (the "Objection") and the Trustee's Motion to Compel Turnover of the Debtors' homestead and personal property (Doc. No. 24) (the "Turnover Motion"). The issue is whether the Debtors may claim the enhanced personal property exemption provided for by Fla. Stat. § 222.25(4) when, although the Debtors have not claimed the Florida homestead exemption, they have indicated their intent to retain their residence....

...h. The Debtors did not claim the Real Property as exempt on their Schedule C— Property Claimed as Exempt. However, the Debtors claimed exemptions for personal property under both article X, section 4(a)(2) of the Florida Constitution and Fla. Stat. § 222.25(4)....

...[1] In their Statement of Intentions, the Debtors state that they intend to retain the Real Property and to reaffirm the mortgage on the Real Property. [2] In the Objection and the Turnover Motion, the Trustee challenges the Debtors' ability to claim an exemption under Fla. Stat. § 222.25(4) (the "Statutory Personal Property Exemption") while still retaining ownership of the Real Property....

...ied the following question to the Florida Supreme Court: Whether a debtor who elects not to claim a homestead exemption and indicates an intent to surrender the property is entitled to the additional exemptions for personal property under Fla. Stat. § 222.25(4)....

...debtors and the prompt administration of bankruptcy cases militate in favor of entry of this Order in advance of the Supreme Court's ruling. See In re Smith, 2001 WL 1868524, *3 (Bankr.S.D.N.Y.2001); In re Dombroff, 192 B.R. 615, 621 (S.D.N.Y.1996). Section 222.25(4) of the Florida Statutes provides that an individual who does not "claim or receive the benefits of a homestead exemption under s....

...debtor will receive that benefit. In this case, the Court concludes that because the Debtors have no equity in the Real Property, there is nothing for them to exempt. An analogy may be drawn to the Florida's exemption for motor vehicles. Fla. Stat. § 222.25(1) allows the exemption of "a debtor's interest, not to exceed $1,000 in value, in a single motor vehicle...." The exemption is not limited to motor vehicles with a value of $1,000, but exempts the debtor's equity (the value of the motor vehicle in excess of encumbrances) of up to $1,000....

the “wildcard” exemption pursuant to Fla. Stat. § 222.25(4). Nevertheless, they wish to utilize affirmative

claim the wildcard exemption under Florida Statute § 222.25(4) as long as the Chapter 7 trustee is not prevented

Refund” in an unknown amount pursuant to Fla. Stat. § 222.25(3)-(4) and the Florida Constitution. (Doc. # 1-7

exceeds the cap fixed on the exemption by Fla.Stat. 222.25, which is $1,000.00. The Debtor in her response

...Wilcox, Wilcox Law Firm, Jacksonville, FL, for Debtor. ORDER OVERRULING TRUSTEE'S OBJECTION TO EXEMPTIONS JERRY A. FUNK, Bankruptcy Judge. This Case is before the Court upon the Chapter 7 Trustee's Objection to Debtor's Claim of Exemptions as to personal property under Florida Statute § 222.25(4)....

...take the matter under advisement and issue an order in due course. On August 8, 2008, the Court entered Findings of Fact and Conclusions of Law in regards to the eligibility of a debtor to receive the enhanced personal property exemption pursuant to § 222.25(4)....

...Debtor also never changed or amended her schedules to reflect otherwise. Accordingly, the Court does not find that she has received the benefit of the homestead exemption. Based upon these facts, the Court finds that the Debtor is entitled to claim the enhanced personal property exemption of § 222.25(4). It is, ORDERED: 1. The Trustee's Objection to Exemptions is Overruled. 2. Debtor is entitled to the enhanced personal property exemption under Florida Statute § 222.25(4) and shall designate $4,000.00 of exempt personal property.

1989. 1 Fletcher’s Cyclopedia of Corporations § 222-25. Section 607.1904 derives almost verbatim from

...consistent with this opinion. I. The Valones are Florida residents who filed jointly for bankruptcy under Chapter 13 of the Bankruptcy Code. In their petition, they claimed exemptions for personal property under section 222.25(4) of the Florida Statutes, 1 known as the * Honorable Kenneth F....

...The wildcard exemption permits a debtor to exempt from legal process “[a] debtor’s interest in personal property, not to exceed $4,000, if the debtor does not claim or receive the benefits of a homestead exemption under s. 4, Art. X of the State Constitution.” Fla. Stat. § 222.25(4)....

...3d at 581. The wildcard exemption exempts “[a] debtor’s interest in personal property, not to exceed $4,000, if the debtor does not claim or receive the benefits of a homestead exemption under s. 4, Art. X of the State Constitution.” Fla. Stat. § 222.25(4). The parties’ dispute centers on the meaning of the phrase “receive the benefits of a homestead exemption under s....

...Nothing in that opinion, however, would extend the potential for receiving benefits to situations—like this one—where the protection of the home emanates from a source other than the homestead exemption. In fact, the Court clearly ruled out disallowance under § 222.25(4) when the protection comes from any source besides the homestead exemption: “[I]f under the facts of the case the article X homestead exemption does not otherwise present an obstacle to the bankruptcy trustee’s administration of th...

...That example involved a debtor who indirectly received the benefits of the homestead exemption through his nondebtor spouse’s retention of the right to exercise the homestead exemption. See id. at 589. This example reinforces the straightforward command of § 222.25(4) that requires protection from the homestead exemption for a debtor to be ineligible for the wildcard exemption. Alternatively, Waage argues, because the homestead exemption is “self- executing,” see id....

... Case: 14-11457 Date Filed: 04/29/2015 Page: 9 of 12 constitutes homestead property under the Florida Constitution may make a debtor ineligible for the wildcard exemption. Though the Florida Supreme Court rejected such an understanding of § 222.25(4) as it applies to bankruptcy debtors, see id....

...This “liquidation test” accounts for exemptions applicable in Chapter 7 to calculate that amount. If we were to side with Waage, the amount calculated under the Chapter 13 liquidation test would exceed the amount the Valones’ creditors would receive from liquidation. Waage’s interpretation of § 222.25(4), then, contravenes not just the plain language of that statute; it would also defeat one of the basic tenets of Chapter 13. Section 222.25(4) is clear....