Articles

Practice Areas

Debtors who owned two homes could claim an exemption for a “vacation” home

Under federal bankruptcy law, a debtor may be able to claim an exemption related to a homestead or residence. But what if the debtor owns more than one residence? Are there any circumstances under which a debtor could choose which home to exempt-even if the home claimed is not the debtor’s “principal” residence?

The United States Bankruptcy Court answered this question in the case of In re Demeter.

Claiming a homestead exemption

A husband and wife filed for Chapter 7 bankruptcy. The couple had owned two single-family residences for many years prior to filing for bankruptcy; one in the Detroit area and another in Cheboygan. The couple wished to apply a homestead exemption to the house in Cheboygan, but the bankruptcy trustee-the person administering the bankruptcy proceeding-objected.

The debtors had owned the Detroit-area house since 1972 and the trustee alleged that it had been the debtors principal residence ever since. The debtors had used the Detroit-area home as their home mailing address for voting, tax returns, and all bills and bank statements. In addition, at the time of filing the petition, the debtors were living in the Detroit-area home.

The debtors did not claim an exemption for the Detroit-area home, and the mortgage owed on that home exceeded the value of the property. The trustee argued that the Cheboygan home was a “vacation” home, which the couple had only owned since 1996 and that the exemption should not be applied to it.

The meaning of “residence”

The United States Bankruptcy Court noted that, under the applicable section of the federal bankruptcy code, the exemption applies to property the debtor uses as a residence. However the Code does not define the word “residence.” In addition, Michigan’s exemption statutes provide for a homestead exemption, but do not use the word “residence.”

The key question, then, was whether the debtors, who owned and used more than one home, could claim the exemption for the Cheboygan house, even though the Detroit-area house was the couple’s principal residence.

The Cheboygan home was fully furnished, the utilities operated year-round, and the debtors kept clothing and other property there. The husband had testified that the couple spent about one-half of each year there and spent time in the Detroit-area house only because of work. The couple had planned to live in Cheboygan full-time, if financially feasible.

The Bankruptcy Court found that the term “residence” as used in the federal law was not limited to a “principal” residence, and that a debtor could obviously have more than one
“residence,” as the couple did in this case. Congress had repeatedly made a distinction between “residence” and “principal” or “primary” residence” in other provisions of the law, but did not do so here. Therefore, the debtors exemption in the Cheboygan home under the Chapter 7 bankruptcy proceeding would be allowed.

The right solution for you

If you are suffering due to your financial circumstances, and wonder if bankruptcy is the right solution, you should consult with an experienced bankruptcy attorney. There is more than one type of bankruptcy protection, and which is best for you depends on your circumstances, such as the type of debt you owe and your current income, among other factors. Choose an attorney who can provide you with individualized advice to help you make the best possible fresh start on your financial future.

Google Reviews

S.M. ★★★★★

Professional, compassionate team. They explained every step of the bankruptcy process and made a stressful situation manageable. I am grateful for their guidance.

J.T. ★★★★★

Straightforward advice without pressure. My attorney returned calls promptly and helped me understand my options. I would recommend Marrs & Terry to anyone facing serious debt.

E.R. ★★★★★

Knowledgeable staff and clear communication from start to finish. They handled the paperwork carefully and kept me informed. Highly recommend.

M.K. ★★★★★

Honest assessment of my case and realistic expectations. The firm treated me with respect and helped me get a fresh start. Thank you.

P.L. ★★★★★

From the first consultation I felt heard. They answered my questions patiently and walked me through Chapter 13. Excellent experience overall.

D.H. ★★★★★

Efficient, organized, and caring. They helped stop creditor calls and got my case resolved. I wish I had called sooner.

T.M. ★★★★★

Bridget has been a lifesaver through the entire process. She was always quick to get back with us either by phone or emails. She made us feel like family. Very caring and made everything easy to understand. I highly recommend these guys!

S.A. ★★★★★

We are treated like family. Bridget has been our gracious savior during the entire process and they are never done whenever we have questions or need help along the journey they are as attentive as they originally were from the start. If we ever have opportunity in the future to work with them we won’t hesitate.

C.R. ★★★★★

They were amazingly helpful and communicative. Tricia was very helpful. Bridget was a rockstar. She went through everything with me, step by step.

D.C. ★★★★★

Bridget and all the lawyers there have been absolutely great. They have helped us thru a very difficult time. We highly recommend this firm.

C.W. ★★★★★

I went to Marrs & Terry during one of the toughest parts of my life. The office staff felt like family. I was treated like a person and a priority. I cannot say enough good things about this office.

B.N. ★★★★★

Michelle is the best! Straightforward, Honest, and put me at ease from the start. I should've done this earlier, but was hesitant. Michelle has made my life manageable again. Thank you for everything.

T.T. ★★★★★

Amazing customer service from the very first call. Always willing to answer questions. Returned calls right away. Just good people. Thank you for doing such a great job!

J.H. ★★★★★

15 years ago we found ourselves severely upside down in our house, loss of income and growing debt. Marrs and Terry got us on a repayment plan and stopped collection efforts. Thanks!

J.C. ★★★★★

I am using Marrs and Terry for the 2nd time and they have made what can be extremely scary and uncomfortable processes doable. They are available to answer questions, large and small and are extremely approachable.

T.B. ★★★★★

Very professional, knowledgeable, helpful. They were there when I needed. Walked me through and explained everything as we went along. Would highly recommend for all your attorney needs.

M.W. ★★★★★

The best! Educated, kind, professional office. You can’t go wrong with them. You will get excellent service with this firm.