In re: Dennis Wayne SCHULZ, Debtor(s) 

No. 88-04770

United States Bankruptcy Court For The Northern District Of Florida, 
Pensacola Division 

101 Bankr. 301, Bankr. L. Rep. (CCH) P72,951, 1989 Bankr. Decision

April 25, 1989, Decided

Harold F. Peek, Jr., Esq., Valparaiso, Florida, Atty. for Debtor.. M. Alan 
Rhodey, Esq., Ft. Walton Beach, 
Florida, Atty. for Trustee. 


Lewis M. Killian, Jr., Bankruptcy Judge. 

{Bankr. 302} ORDER ON OBJECTION TO EXEMPTIONS 

KILLIAN, JR., U.S.B.J. 

THIS MATTER is before the Court on the objection by the trustee in this 
Chapter 7 case to the claim of exempt property made by the debtor herein. The 
essence of the objection is that the property claimed as exempt lies outside 
the State of Florida and accordingly cannot be claimed as exempt under the 
Florida Constitution or statutes. 

In this case, the debtor resided in the Northern District of Florida until 
approximately one month prior to the filing of this petition for relief under 
Chapter 7 at which time he moved his residence to Wisconsin. Since he had not 
resided in Wisconsin for either 180 days prior to the time he filed his 
petition or for the greater part of 180 days prior, he was required to file 
the case in the Northern District of Florida. 28 U.S.C.S. § 1408(1). In his 
schedules, the debtor claimed the exemptions provided for under Article 10, § 
4 of the Constitution of the State of Florida, and Chapter 222, Florida 
Statutes. The trustee objected to the exemptions on the basis that under the 
Florida Constitution and Chapter 222, the exemptions provided for thereunder 
are available only to residents of the State of Florida. The trustee is 
correct in this assertion. In re Gilman, 68 B.R. 374 (Bankr. S.D.FL. 1986); 
Cooke v. Uransky, 412 So.2d 340 (Fla. 1982). Section 522(b)(2)(A) provides 
that the applicable exemption law is the "state or local law that is 
applicable on the date of the filing of the petition at place in which the 
debtor's domicile has been located for the 180 days immediately preceding the 
date of the filing of the petition, or for a longer portion of such 180 days 
than in any other place;". This provision appears to place the debtor in a 
"catch 22" since the Florida exemptions are not available to a non-resident 
and it appears that he can only claim the Florida exemptions. Thus, as the 
trustee argues, this debtor is not entitled to any exemptions whatsoever. 

We do not agree that the debtor in this situation is precluded from availing 
himself of any exemptions. Section 522(d)(1) allows the debtor to claim the 
federal exemptions of § 522(d), "unless the state law that is applicable to 
the debtor under paragraph (2)(A) of this subsection specifically does not so 
authorize;". Florida has chosen to "opt out" of the federal exemptions 
pursuant to § 222.20 (Fla. Stats.) which provides: 

In accordance with the provision of § 522(d) of the Bankruptcy Code of 1978 
(11 U.S.C. § 522(d)), residents of this state shall not be entitled to the 
federal exemptions provided in § 522(d) of the Bankruptcy Code of 1978 (11 
U.S.C. § 522(d)). Nothing herein shall affect the exemptions given to 
residents of this state by the state constitution and the Florida Statutes. 
(emphasis supplied.) 
Since this statute applies only to residents of the State of Florida, we find 
that it does not apply to prevent non-residents of this state who because of 
the venue provisions of 28 U.S.C. § 1408 are required to file in Florida from 
claiming the exemptions provided for under § 522(d) of the Bankruptcy Code. 
To find that this debtor is not entitled to claim any exemptions would be 
contrary to the "fresh start" policy of the Bankruptcy Code. Therefore, this 
debtor is entitled to claim the federal exemptions. However, he is not 
entitled to claim the Florida exemptions. Accordingly, it is hereby 

ORDERED AND ADJUDGED that the trustee's objection to the claim of exemptions 
be and same is hereby sustained and the exemptions claimed by this debtor are 
hereby disallowed. 

DONE AND ORDERED at Tallahassee, Florida, this 25th day of April, 1989.