In the case of Rachael Anne Earl, 13-bk-18751-EPB, Judge Ballinger issued a detailed minute entry order addressing whether it is permissible for a debtor to amend their bankruptcy schedules to claim a different property under the homestead exemption than the one originally claimed.
Judge Ballinger ruled that for a property to qualify for the homestead exemption after amending the schedules, that property must have been able to qualify under the homestead exemption as of the petition date, not a date thereafter, because exemptions are fixed as of the petition date (citing In re Jacobson 9th Cir. 2012).
In this case the Debtor had two properties: Sunnyvale and Claiborne. On Debtor’s schedules she listed the Claiborne residence under the homestead exemption and that was the location where debtor kept her personal property. As of the petition date, the Sunnyvale residence was used solely to generate rental income. When the case was converted to Chapter 7, the Court sustained the trustee’s objection that the Debtor could not claim an exemption in the Claiborne property. When Debtor realized she could not defeat the Trustee’s objection, she amended her bankruptcy schedules to assert her homestead exemption on the Sunnyvale property instead.
Debtor did not show the requisite intent on the petition date to make the Sunnyvale property her homestead, but rather intended the Claiborne residence to be her homestead. Debtor would not be permitted to claim the Claiborne property as her exempt property on her schedules and then amend them to change her homestead exemption to the Sunnyvale property if the Sunnyvale property would not have met the homestead exemption standard as of the petition date. The Debtor had previously received the benefit of the homestead exemption on the Claiborne property and the court would not allow the Debtor to receive a “second bite at the apple”.
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