[CLBS] Utah venue, but residing in Idaho; can you use Federal Exemptions for Chapter 7?

Fri Jan 12 12:12:58 MST 2018

Time to update my research. I knew that Paul would catch any error. Thanks Paul.

Tyler J. McGee
ROY, NIELSON, BARINI-GARCIA, PLATTS & McGEE
P.O. Box 487
Twin Falls, Idaho 83303-0487
Phone: (208) 734-4450
Fax:  (208) 734-4452

From: paulnjrosslaw at gmail.com [mailto:paulnjrosslaw at gmail.com] On Behalf Of Paul Ross
Sent: Friday, January 12, 2018 11:26 AM
To: Tyler McGee
Cc: Jon Wilson; clbs at admws.idaho.gov
Subject: Re: [CLBS] Utah venue, but residing in Idaho; can you use Federal Exemptions for Chapter 7?

Not clear on what you mean Utah venue, but residing in Idaho.  Are you filing the case in Utah then, or are you going to file in Idaho under 1408 for a different reason?
A Utahn is required to use Utah exemptions, no federal is permitted.  But Utah code only allows Utah exemptions to be used for 180 days after you move out of state.  78B-5-513.
Be aware that Utah code has been redone, there is no Title 78 anymore but 78A and 78B.
If your debtor qualifies for Idaho venue and has been here over 180 days, I believe you are required to use Federal.  You do not have Utah or Idaho exemptions available.
Paul

On Fri, Jan 12, 2018 at 11:13 AM, Tyler McGee <tyler at twinfallsattorneys.com<mailto:tyler at twinfallsattorneys.com>> wrote:
Jon,

I assume that what your asking is whether a debtor who is a nonresident of Utah may use the federal exemptions as opposed to the Utah state exemptions. If that is what you're asking I believe that the analysis is that...

- Utah's exemptions are not limited to Utah residents
- Utah's homestead exemption would not apply to any property that is outside of Utah (Utah Code 78-23-3(2)(a)
- Utah's opt out is not limited to residents of Utah, which would mean that an Idaho resident is not given the option of opting into the federal exemptions under Utah Code 78-23-15
- Despite the fact that Utah's opt out includes non-residents, your Idaho debtor should be able to use the federal exemptions under the savings clause because the Utah state homestead exemption is not available for use (look at the savings clause in 11 USC 522(b))

I might be off base, if I am I have no doubt that the great attorneys on the listserve will correct me.

Tyler J. McGee
ROY, NIELSON, BARINI-GARCIA, PLATTS & McGEE
P.O. Box 487
Twin Falls, Idaho 83303-0487
Phone: (208) 734-4450<tel:%28208%29%20734-4450>
Fax:  (208) 734-4452<tel:%28208%29%20734-4452>

-----Original Message-----
From: CLBS [mailto:clbs-bounces at admws.idaho.gov<mailto:clbs-bounces at admws.idaho.gov>] On Behalf Of Jon Wilson
Sent: Friday, January 12, 2018 10:48 AM
To: clbs at admws.idaho.gov<mailto:clbs at admws.idaho.gov>
Subject: [CLBS] Utah venue, but residing in Idaho; can you use Federal Exemptions for Chapter 7?

Dear List mates,

Thank you for all of your wonderful assistance on my recent inquiry.

New question,  It appears if one has a Utah exemption requirement for filing a Chapter 7, that that debtor can instead claim Federal Bankruptcy Exemptions.

Have you found this to be correct?

Thanks.

Jon R. Wilson

Attorney at Law

Wilson Law Offices, P.C.

4614 W. Emerald St.

Boise, ID 83706

Tel. (208)343-8400<tel:%28208%29343-8400>

Fax (208)424-5006<tel:%28208%29424-5006>

Email:  jon at boiselaw.org<mailto:jon at boiselaw.org> <mailto:jon at boiselaw.org<mailto:jon at boiselaw.org>>

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