Another Osborne v Dumoulin case: Allen

Judge Kimball, bankruptcy judge sitting in West Palm Beach in the Southern District of Florida, addressed the issue of the debtor’s change of mind on which Florida exemption to take. Recall that the debtor can take an additional $4,000 exemption if the debtor does not receive the benefit of the homestead, FL Stat. 222.25(4). In re Allen, 2011 Bankr. Lexis 24269, (Bankr. S.D. FL. June 21, 2011) involved the debtors’ election to change their mind about which exemption to take. They originally claimed the homestead exempt, but after the deadline for creditors and the trustee to object, the debtors amended their exemption to delete the homestead election and claim the additional personal property exemption. Relying on the Eleventh Circuit Court’s decision in Osborne v Dumoulin, 2011 U.S. App. Lexis 9702(11th Cir. May 10, 2011), Judge Kimball recognized that the clear holding of the Eleventh Circuit was to permit the amendment to exemptions.

However, it should be noted that the amendment must be granted unless there is an allegation of bad faith or prejudice to creditors.



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