Florida/Georgia Personal Injury & Workers Compensation

...n 4 of the Florida Constitution exempt a Florida homestead, where the debtor acquired the homestead using non-exempt funds with the specific intent of hindering, delaying, or defrauding creditors in violation of Fla. Stat. § 726.105 or Fla. Stat. §§ 222.29 and 222.30? Havoco of America, Ltd....

...We have invoked equitable principles to reach beyond the literal language of the exceptions only where funds obtained through fraud or egregious conduct were used to invest in, purchase, or improve the homestead. [12] *1029 APPLICABILITY OF SECTIONS 726.105, 222.29, AND 222.30 TO THE HOMESTEAD EXEMPTION Section 726.105, Florida Statutes (2000), of the Uniform Fraudulent Transfer Act provides in pertinent part: Transfers fraudulent as to present and future creditors.— (1) A transfer made or obligation in...

...Turner, 426 So.2d 539, 544 (Fla.1982) (quoting Sparkman v. State ex rel. Scott, 58 So.2d 431, 432 (Fla.1952)) ("Express or implied provisions of the Constitution cannot be altered, contracted or enlarged by legislative enactments."). Accordingly, we reach the same conclusion as to sections 222.29 and 222.30....

...Smith v. Smith, 761 So.2d 370 (Fla. 5th DCA 2000); Isaacson v. Isaacson, 504 So.2d 1309 (Fla. 1st DCA 1987). We express no opinion as to the validity of this approach. [13] Chapter 222 governs the methods of setting apart homesteads and exemptions. Section 222.29, Florida Statutes (2000), provides: 222.29 No exemption for fraudulent transfers.— An exemption from attachment, garnishment, or legal process provided by this chapter is not effective if it results from a fraudulent transfer or conveyance as provided in chapter 726....

...e creditor, whether the creditor's claim to the asset arose before or after the conversion of the asset, if the debtor made the conversion with the intent to hinder, delay, or defraud the creditor. Several federal courts have concluded that sections 222.29 and 222.30 cannot expand or limit the scope of the exceptions provided in the Constitution....

...upersedes any attempt by the legislature to deprive the debtor of the ability to exempt his or her homestead through general legislation."). but see In re Thomas, 172 B.R. 673, 674 (Bkrtcy.M.D.Fla.1994) ("The 1993 amendments to the Florida Statutes, § 222.29-.30, bar homestead exemptions resulting from `fraudulent asset conversions'— those made by the debtor `with intent to hinder, delay, or defraud the creditor.'").

...At most it served the useful function of codifying an existing line of authority eliminating any doubt there may have been as to the law." David E. Peterson et al., Is the Homestead Subject to the Statute of Fraudulent Asset Conversions?, Fla.B.J., Dec., 1994, at 15. See also Fla.Stat. § 222.29 (1993) and Fla....

...Barker was decided in the context of annuities which are also exempt under Florida statutory law. The issue of homestead property was not specifically addressed in Barker. Subsequent to the transfer at issue in Barker, the Florida legislature enacted Fla.Stat. § 222.29 and § 222.30. Fla.Stat. § 222.29 states, "An exemption from attachment, garnishment, or legal process provided by this chapter is not effective if it results from a fraudulent transfer or conveyance as provided in chapter 726." Although at least one court has applied this section to disallow a homestead exemption, [2] this Court feels that it is clearly inapplicable to the Florida Constitutional homestead exemption. First, by its own language, Fla.Stat. § 222.29 only applies to exemptions "provided by this chapter." Chapter 222 provides statutory exemptions for annuities, personal property, and other miscellaneous assets....

...It would take an amendment to the Florida Constitution to restrict the right to homestead exemption. The mere passing of a statute by the Florida Legislature cannot restrict the Florida Constitution. There is no question that the disallowance of fraudulent conversions of exempt assets in Fla.Stat. § 222.29 does not extend to homestead....

...In his amended pleading, Trustee raised additional grounds for his objections, contending that Debtor's Ponte Vedra house does not qualify as homestead under the Florida Constitution, and the homestead status of the Ponte Vedra house arose from fraudulent conversion, and is therefore not exempt under Fla.Stat. §§ 222.29 and 222.30....

...In so doing, they cited to In re Thomas, 172 B.R. 673 (Bankr.M.D.Fla.1994). In Thomas, a sister bankruptcy court found *1008 that proceeds from the sale of a non-exempt automobile went towards mortgage payments of an exempt homestead. Id. at 674. Relying on Fla.Stat. § 222.29 [2] -.30, the court held that the debtors' conversion of non-exempt assets to exempt assets was a fraudulent conversion which precludes homestead exemption in the amount of the conversion. Id. The court further stated that Fla.Stat. § 222.29-.30 bar homestead exemptions resulting from fraudulent asset conversions....

...reditor of the debtor is a fraudulent asset conversion as to the creditor, whether the creditor's claim to the asset, if the debtor made the conversion with the intent to hinder, delay, or defraud the creditor. Fla.Stat. § 222.30(1)-(2) (1996). [2] Section 222.29 of the Florida Statutes provides, in relevant part, that: An exemption from attachment, garnishment, or legal process provided by this chapter is not effective if it results from a fraudulent transfer or conveyance as provided in chapter 726. Fla.Stat. § 222.29 (1996).

...At Orlando, in said District on the 22nd day of June, 1994, before Arthur B. Briskman, Bankruptcy Judge. Andrew Baron appeared for the Debtor. John Meininger appeared for the Trustee. The Trustee objected to the Debtor's claim of exemption pursuant to Title 11 U.S.C. § 522 and Fla.Stat.Ann. §§ 222.29-.30....

...§ 222.201 et seq. ) delineate the exemptions available to its citizenry. And in crafting their own exemption laws, states such as Florida condemn exemptions for property acquired through fraudulent conversions. The 1993 amendments to the Florida Statutes, § 222.29-.30, bar homestead exemptions resulting from "fraudulent asset conversions"—those made by the debtor "with intent to hinder, delay, or defraud the creditor." [1] The Court, when construing a statute, is "obliged to give effect, if possible, to every word ....

...the Bankruptcy Code constituted an intentional hinderance or delay of the creditors and is, therefore, fraudulent. See, e.g., Ameritrust Nat'l Bank v. Davidson (In re Davidson), 164 B.R. 782 (Bankr.S.D.Fla. 1994). In accordance with Fla.Stat.Ann. §§ 222.29-.30, the Debtor's homestead exemption is disallowed in the amount of said conversion. The converted funds are property of the bankruptcy estate subject to recovery by the Trustee. NOTES [1] Fla.Stat.Ann. § 222.29 No exemption for fraudulent transfers.— An exemption ....

...Bank Leumi Trust Company of New York v. Lang, 898 F.Supp. 883 (S.D.Fla.1995); Clements, 194 B.R. at 925; Meininger v. Miller (In re Miller), 188 B.R. 302 (Bankr.M.D.Fla. 1995). The Trustee argues that the Florida legislature intended to change this rule by enacting Florida Statutes § 222.29 and § 222.30. Florida Statutes § 222.29 provides: An exemption from attachment, garnishment, or other legal process provided by this chapter is not effective if it results from a fraudulent transfer or conveyance as provided in chapter 726. Fla.Stat. § 222.29 (1997) (emphasis added). [2] By its language, § 222.29 clearly prohibits debtors from taking advantage of Florida's liberal exemptions when they fraudulently convert non-exempt assets into exempt assets, and with this in mind, Florida courts have not hesitated to deny debtors' exemptions for life insurance policies, annuities, and other miscellaneous assets. See Miller, 188 B.R. at 309; Crews v. First Colony Life Insurance Company (In re Barker), 168 B.R. 773 (Bankr. M.D.Fla.1994); In re Schwarb, 150 B.R. 470 (Bankr.M.D.Fla.1992). However, § 222.29 does not apply to homestead property. The relief afforded by § 222.29 applies only to exemptions *826 "provided by this chapter." The homestead exemption is provided by the Florida Constitution, not Chapter 222....

...Furthermore, statutory laws cannot impair rights provided by the Florida Constitution. Clements, 194 B.R. at 925. In his Motion, the Trustee cites In re Thomas, 172 B.R. 673, 674 (Bankr. M.D.Fla.1994), which took a contrary view and held that Fla.Stat. § 222.29 can be used to deny a debtor's homestead exemption when it is the result of a fraudulent transfer. The overwhelming majority of Florida courts as well as this Court reject this conclusion and agree that, despite Fla. Stat. § 222.29, a debtor's conversion of non-exempt assets into the exempt homestead with the intent to hinder, delay or defraud creditors does not cause a debtor to lose the protection of the homestead exemption....

...available to all comers. [5] See Havoco at 1019 (affording the protection of the constitutional shield to a debtor who acquired homestead using non-exempt funds with the specific intent of hindering, delaying and defrauding creditors in violation of section 222.29, 222.30, or 726.105 of the Florida Statutes, noting that it was "powerless to depart from the plain language of Article X, section 4"); Caggiano at 56 (affording the protection of the constitutional shield to a convicted racketeer, a s...

...transformed his individual property into home furnishings owned with his wife as tenants-by-the-entireties through an adversary proceeding to which Hill's wife may be made a party. B. THE HOMESTEAD EXEMPTION 7 Compare 11 U.S.C. § 548 with Fla. Stat. chs. 726.105, 222.29, and 222.30. 12  The exemption of a debtor’s homestead from process in Florida is constitutionally protected....

...18 employed as an instrumentality of fraud.” Id. Applying Tramel, courts continue to reach inapposite conclusions, and, thus, the issue remains unresolved.12 Similarly, courts are split regarding the impact of Fla. Stat. §§ 222.29 and 222.30....

...to hinder, delay, or defraud the creditors a fraudulent asset conversion. See Fla. Stat. § 222.30(2).13 Courts have spilt as to whether this statute is applicable to the homestead conversion. Compare In re Hendricks, 237 B.R. at 824-825 (finding § 222.29 inapplicable to the homestead exemption because, by its terms, it only applies to 12 Adding to the confusion in this area is the conclusion of some courts that, although a debtor’s fraudulent conversion of non-exempt ass...

...t to hinder, delay, or defraud the creditor. 19 exemptions within Fla. Stat. Ch. 222 and statutory laws cannot impair constitutional rights) with In re Thomas, 172 B.R. at 674 (holding that §§ 222.29 and 222.30 bar homestead exemptions resulting from fraudulent asset conversions). While Fla. Stat. §§ 222.29 and 222.30 were not in effect at the time of this case, we have previously concluded that §222.30 was “an effort to provide a clearer, more direct response to fraudulent transfers” of the sort at issue here. Levine, 134 F.3d at 1053. Therefore, transfers which would be avoidable as fraudulent under §§ 222.29 and 222.30 were also previously avoidable under § 726.105....

...9.150: DOES ARTICLE X, SECTION 4 OF THE FLORIDA CONSTITUTION EXEMPT A FLORIDA HOMESTEAD, WHERE THE DEBTOR ACQUIRED THE HOMESTEAD USING NON-EXEMPT FUNDS WITH THE SPECIFIC INTENT OF HINDERING, DELAYING, OR DEFRAUDING CREDITORS IN VIOLATION OF FLA. STAT. § 726.105 OR FLA. STAT. §§ 222.29 and 222.30? The phrasing of this certified question is not intended to limit the Supreme Court’s consideration of the various issues posed by this case....

...obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person: (1) a homestead. . . . FLA. CONST. art. X, § 4(a)(1). [2] Courts are split regarding the impact of Florida Statutes §§ 222.29 and 222.30. See FLA.STAT.ANN. §§ 222.29 and 222.30 (West 1999)....

...ud the creditors a fraudulent asset conversion. See FLA.STAT.ANN. § 222.30(2) (West 1999). Courts have reached contrary conclusions as to whether this statute is applicable to the homestead exemption. Compare Hendricks, 237 B.R. at 824-825 (finding § 222.29 inapplicable to homestead exemption because statutory laws cannot impair constitutional rights and, by its terms, it only applies to exemptions within § 222), with Thomas, 172 B.R. at 674 (holding that §§ 222.29 and 222.30 bar homestead exemptions resulting from fraudulent asset conversions).

...As with the IRA account in Siegel, in this case the Circuit court may properly look to the insurance policy. The protection for the insurance policy is statutory, not constitutional. See § 222.14, Fla. Stat. (2015). However, the statutory protection is not absolute. Section 222.29, Florida Statutes (2015), removes -the statutory protection if the exemption results from - a fraudulent transfer or conveyance as provided in chapter 726....

...es 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....

...f the bankruptcy estate, available to satisfy Hill's individual creditors, and, consequently, Hill's wife's property interest in the home furnishings will be effectively terminated. 7 Compare 11 U.S.C. § 548 with Fla. Stat. chs. 726.105, 222.29, and 222.30.  The exemption of a debtor's homestead from process in Florida is constitutionally protected....

...stead cannot be employed as an instrumentality of fraud." Id. Applying Tramel, courts continue to reach inapposite conclusions, and, thus, the issue remains unresolved.12 Similarly, courts are split regarding the impact of Fla. Stat. §§ 222.29 and 222.30....

...§ 222.30(2) states in pertinent part: Any conversion by a debtor of an asset that results in the proceeds of the asset becoming exempt by law from the claims of a creditor of the debtor is a fraudulent asset Compare In re Hendricks, 237 B.R. at 824-825 (finding § 222.29 inapplicable to the homestead exemption because, by its terms, it only applies to exemptions within Fla. Stat. Ch. 222 and statutory laws cannot impair constitutional rights) with In re Thomas, 172 B.R. at 674 (holding that §§ 222.29 and 222.30 bar homestead exemptions resulting from fraudulent asset conversions). While Fla. Stat. §§ 222.29 and 222.30 were not in effect at the time of this case, we have previously concluded that § 222.30 was "an effort to provide a clearer, more direct response to fraudulent transfers" of the sort at issue here. Levine, 134 F.3d at 1053. Therefore, transfers which would be avoidable as fraudulent under §§ 222.29 and 222.30 were also previously avoidable under § 726.105....

...9.150: DOES ARTICLE X, SECTION 4 OF THE FLORIDA CONSTITUTION EXEMPT A FLORIDA HOMESTEAD, WHERE THE DEBTOR ACQUIRED THE HOMESTEAD USING NON-EXEMPT FUNDS WITH THE SPECIFIC INTENT OF HINDERING, DELAYING, OR DEFRAUDING CREDITORS IN VIOLATION OF FLA. STAT. § 726.105 OR FLA. STAT. §§ 222.29 and 222.30? The phrasing of this certified question is not intended to limit the Supreme Court's consideration of the various issues posed by this case....

...The statute protects payment rights under annuity contracts. The Florida legislature determined that, except when acquired with fraudulent intent in violation of Fla. Stat. § 222.30 or if the exemption results from a fraudulent transfer or conveyance in violation of Fla. Stat. § 222.29 , all payment rights under an annuity contract are exempt from process....

...ner of the contract. If section 222.14 is interpreted to require the owner of the annuity contract to also be a Florida citizen or resident, this would greatly restrict the selection of a trustee, without any valid purpose. In any case, Fla. Stat. §§ 222.29 and 222.30 address the concerns raised by the plaintiff by limiting the effect of the exemption provisions where fraud is involved....

...The Trustee objected to these claims of exemptions contending that: (i) the Boat Slip, household goods and furnishings, and Stock are not owned as tenants by the entireties; (ii) the Highway Avenue Property and Picketville Property are not exempt pursuant to §§ 222.29 and 222.30, Florida Statutes; (iii) the Mutual Fund Account is not exempt under Florida Statutes, § 222.14; and (iv) pursuant to 11 U.S.C....

...The Highway Avenue Property and Picketville Property are owned as tenants by the entireties and are not the product of fraudulent transfers. Property that would otherwise be excluded from the bankruptcy estate is not exempt if the property was acquired via a fraudulent transfer or conveyance. See FM. STAT. ANN. § 222.29 (West 2005) [2] and FLA....

...ior to the petition date that a merger with Ameris Bancorp was possible. Because the Court agrees that the Stock is not owned as tenants by the entireties, the Court need not address this extraneous issue raised by the Trustee. [2] Florida Statutes, § 222.29, states: An exemption from attachment, garnishment, or legal process provided by this chapter is not effective if it results from a fraudulent transfer or conveyance as provided in chapter 726....

...Cadle does not dispute that policy 1 satisfies the requirements of § 222.14 but asserts that most of the cash surrender value of the policy was created by a series of fraudulent transfers or the conversion of non-exempt funds into exempt assets in contravention of §§ 222.29 and 222.30 of the Florida Statutes....

...Debtor Charles Lowery, the owner of the policy and the insured, is a resident of the state of Florida. However, Cadle asserts that most of the cash value of policy 1 was created by a series of fraudulent transfers of the conversion of non-exempt funds into exempt assets in contravention of §§ 222.29 and 222.30 of the Florida Statutes....

...exemption. However, the Court pointed to the availability of § 222.30 as a basis for the disallowance of an exemption resulting from the conversion of a nonexempt asset to an exempt asset with the intent to hinder, delay, or defraud a creditor. 2 §§ 222.29 and 222.30 Fla. Stat. § 222.29 provides as follows: No exemption for fraudulent transfers An exemption from attachment, garnishment, or legal process provided by this chapter is not effective if it results from a fraudulent transfer or conveyance as provided in chapter 726. Fla. Stat. 222.29....

...The Court finds there is a genuine issue of material fact as to whether the cash surrender value of policy 1 is the result of a fraudulent transfer or the conversion of non-exempt assets into exempt life insurance and is subject to disallowance pursuant to § 222.29 or § 222.30 of the Florida Statutes....