In re: Oscar GILMAN, Debtor

No. 86-02473-BKC-SMW

United States Bankruptcy Court For The Southern District Of Florida 

68 Bankr. 374, 1986 Bankr. Decision

December 29, 1986, Filed

Michael W. Ullman, Esq., for Capital Bank. Max Hagen, Esq., for Debtor..

Sidney M. Weaver Judge, U.S. Bankruptcy Court.

{Bankr. 374} ORDER ON CAPITAL BANK'S OBJECTION TO DEBTOR'S CLAIM OF EXEMPT 
PROPERTY  

The above matter was scheduled before this Court for November 5, 1986 at 
9:30 A.M. in this Court's Ft. Lauderdale Division. Counsels for the 
respective parties stipulated that the Debtor, OSCAR GILMAN, holds a B-1 
Visa but does not possess a permanent Visa, or what might ordinarily 
{Bankr. 375} be referred to as a ”Green Card“, accordingly the Court finds:  

A. That the Debtor, OSCAR GILMAN, filed bankruptcy, seeking Chapter 7 
relief, on August 14, 1986. 

B. On August 14, 1986, and throughout this case, the Debtor possesses a B-
1, but, however, does not hold a permanent Visa. The Court further finds 
that a B-1 Visa does not constitute a permanent Visa and while said Visa 
permits the operation of a business enterprise does not authorize permanent 
residency. 

Based upon the above stated court findings, it is hereby 

ORDERED: 

1. That the Debtor, OSCAR GILMAN, is required to hold a permanent Visa 
before he may legally intend to permanently reside within the United States 
andor the State of Florida.  

2. The Debtor failed to hold a permanent Visa, at the time this case was 
filed and, accordingly, could not possess, legally, the requisite intent to 
remain permanently for the purpose of exemption status. 

3. As recited by the Fifth Circuit Court of Appeal, in the matter of Cooke, 
683 F.2d 130 (5th Cir. 1982), the Court stated: 

   Appellant, Cooke, filed a Voluntary Petition in Bankruptcy in the 
United States District Court for the Middle District of Florida. In 
his Petition, he claimed a residence he owned in Ft. Myers Beach, 
Florida, as homestead property exempted from the claims of creditors 
by Article X, Section 4, of the Florida Constitution. When Cooke 
filed the Petition, he was a foreign citizen lawfully in the United 
States as a tourist. 

   Appellee, Uransky, as Trustee in bankruptcy, disallowed the 
exemption claimed by Cooke. The District Court upheld this 
disallowance on the ground that Florida law precluded Cooke from 
invoking the homestead exemption. The court ruled that the Florida 
Constitution requires that a claimant possess the intention of 
residing in a Florida residence in order for the residence to fall 
within the homestead exemption provisions. The court concluded that a 
claimant's status as a tourist in this country precludes the legal 
ability under Florida law to form the requisite intent to reside 
permanently in a Florida residence.  

   After hearing argument, we determine that the issue of Florida law 
raised by Cooke was appropriate for certification to the highest 
court of Florida. We therefore certify the following question: Does 
Florida allow foreigners visiting the United States as tourists to 
place a residence owned in the state beyond the reach of creditors 
under the Florida Homestead Exemption? 

   The Supreme Court of Florida has now answered that question in the 
negative. Cooke v. Uransky, 412 So.2d 340 (Fla. 1982). In answering 
the question, that court stated: 

   Cooke argues that this constitutional provision relating to 
homestead exemption contains no prerequisite that there be an 
intent to make the property in question his or his family's 
place of residence. He maintains that the 1968 Amendment to the 
Homestead Provision, eliminating the requirement that the head 
of the family reside in this State, also abrogated any 
requisite that there be an intention to make the property his 
or his family's permanent residence.  

   We reject this contention, and we hold that although it is 
not necessary that the head of the family reside in the State 
or intend to make the property in question his permanent 
residence, he must establish that he intended to make this 
property his family's permanent residence. 

   Based upon the facts of this case, in response to the certified 
question, we state that Cooke may not place the residence owned by 
him in this State beyond the reach of creditors under the Florida 
Homestead Exemption, because, at the time he petitioned for 
bankruptcy, he could not legally formulate the requisite {Bankr. 376} 
intent to make that residence his family's permanent place of 
residence.  

Based upon the above stated decision, and the findings of fact as 
determined by this Court, it is clear that the Debtor, OSCAR GILMAN, is not 
legally entitled to formulate the requisite intent to remain permanently 
within the State of Florida and declare the residence that he owns the 
permanent residence of his family. The Debtor's claim of exemptions in his 
B-4 Schedules is denied, and CAPITAL BANK'S objection to said exemption is 
granted.   

DONE AND ORDERED at Miami, Dade County, Florida, on this 29th day of 
December, 1986. 

Sidney M. Weaver, Judge, U.S. Bankruptcy Court