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In re Valone

United States Court of Appeals, Eleventh Circuit

April 29, 2015

In Re: Michael Valone, a.k.a. Michael K. Valone, a.k.a. Michael Keith Valone, Kristie Valone, a.k.a. Kristie N. Valone, a.k.a. Kristie Noel Valone, Debtors,
v.
JON WAAGE, Defendant - Appellee MICHAEL VALONE, a.k.a. Michael K. Valone, a.k.a. Michael Keith Valone, KRISTIE VALONE, a.k.a. Kristie N. Valone, a.k.a. Kristie Noel Valone, Plaintiffs - Appellants,

Page 1399

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 2:13-cv-00171-SPC, Bkcy No. 9:12-bkc-02265-FMD.

REVERSED and REMANDED.

For Michael Valone, a.k.a.: Michael K. Valone, a.k.a.: Michael Keith Valone, Kristie Valone, a.k.a.: Kristie N. Valone, a.k.a.: Kristie Noel Valone, Plaintiffs - Appellants: David W. Fineman, Carmen Dellutri, The Dellutri Law Group, Fort Myers, FL; David M. Lampley, Dellutri Law Group, Fort Myers, FL.

For Jon Waage, Defendant - Appellee: Robert L. Donald, Law Office of Robert L. Donald, Fort Myers, FL; Michael Eugene Cecil, Office of Jon M. Waage, Chapter 13 Trustee, Bradenton, FL.

Before WILSON, FAY, and RIPPLE,[*] Circuit Judges.

OPINION

Page 1400

WILSON, Circuit Judge:

This is an appeal from a district court order affirming a bankruptcy court's disallowance of an exemption claimed by Michael and Kristie Valone in their Chapter 13 bankruptcy petition. The Chapter 13 trustee, Jon Waage, objected to their personal property exemption, arguing that, as homeowners filing under Chapter 13 of the Bankruptcy Code, the Valones were ineligible for the exemption. The bankruptcy and district courts agreed. We reverse the district court and remand with instructions to remand to the bankruptcy court for proceedings consistent with this opinion.

I.

The Valones are Florida residents who filed jointly for bankruptcy under Chapter 13 of the Bankruptcy Code. In their petition, they claimed exemptions for personal property under section 222.25(4) of the Florida Statutes,[1] known as the " wildcard" exemption. The wildcard exemption permits a debtor to exempt from legal process " [a] debtor's interest in personal property, not to exceed $4,000, if the debtor does not claim or receive the benefits of a homestead exemption under s. 4, Art. X of the State Constitution." Fla. Stat. § 222.25(4). At the date of their petition, the Valones owned a home, but they did not claim the homestead exemption in their petition, presumably because they had no equity in the home.

Waage objected to the Valones' wildcard exemption claim, arguing that because Chapter 13, like the homestead exemption, protects debtors' homes, debtors who file under Chapter 13 receive the benefits of the homestead exemption.[2] The bankruptcy court sustained the objection. In the bankruptcy court's memorandum opinion sustaining the objection, it cited Osborne v. Dumoulin, 55 So.3d 577 (Fla. 2011). In Osborne, the Florida Supreme Court answered a question certified to it by this court and held that a debtor may still receive the benefits of the homestead exemption without claiming it on the bankruptcy petition, rendering the debtor ineligible for the wildcard exemption. See id. at 589-90. After citing Osborne, the bankruptcy court then noted that federal courts applying Osborne

have uniformly ruled that a Chapter 7 debtor who intends to retain his residence does not receive the benefit of the homestead exemption if he has ...

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