Legal Question in Bankruptcy in Florida

According to BK law 28 USC 1408, I can still file in NY after moving to another state 30 days ago. My Lawyer says that when he went to the court that they refused to set a 341 meeting because of a red flag of having moved to a different state. My understanding to this law is that I have 91 days before I can't file there. Is this right? If not what can I do?

Also, when would a bankruptcy be considered as originaly filed? On the day that you first submit the paprwork to the courts or at the end of the 341 meeting?

Asked on 6/19/13, 6:35 pm

1 Answer from Attorneys

William Gwaltney William W. Gwaltney, Attorneys at Law

Typically a bankruptcy is filed in the state where you reside at the time of filing, no matter when you moved there. However, the exemptions that would apply to your case may be governed by the statute requiring you to reside in the state for 730 days prior to filing.

For example: if you are currently living in Florida, but you have not lived in the state for 730 days prior to the filing date, then you would not be eligible for the exemptions provided under Florida law (as a side note, the only one worth having is the unlimited equity in your homestead protection but most people don't benefit from it anyway because they have no equity in their home). Therefore you have to look to the state where you last lived for the prior 730 days to see if the exemptions of that state apply to your case. Many states require that you physically reside in that state in order to avail yourself to their exemptions, while some have a time limit. If you do not qualify for the exemptions of the state that you most recently resided in, then you must look to the Federal Exemptions for your personal and real property.

No matter which exemptions you ultimately are eligible for, the actual filing of the bankruptcy should occur in the state where you CURRENTLY reside. If you are currently living in Florida then you should be filing in Florida. You should talk to your attorney for clarification of what you describe as a "red flag". I have to admit though, I would not be surprised if a Trustee questioned a filing that was made immediately following a move. There may be a very legitimate reason for the timing and it may simply require a brief explanation.

As to your second question, the bankruptcy is considered filed as of the date in which the Court received the Petition and assigned a case number.

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Answered on 6/20/13, 8:22 am

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