On April 22, 2011 Patrick and Kristi Feigner filed for Chapter 7 bankruptcy in the Northern District of Ohio. In their case, they listed a property in Toledo Ohio which they claimed as their residence and they also listed a property in Michigan as a secondary residence. Debtors’ claimed a homestead exemption for the Michigan home.
In determining which exemptions debtors are entitled to use the court noted that the exemptions are dependent upon which state “the debtor’s domicile has been located for the 730 days immediately preceding the date of filing of the petition…” 11 U.S.C. 522(b). The court also mentioned that a debtor’s domicile is determined by “physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there.”
Although no single factor can determine domicile, the court went through a laundry list of factors as outlined in Galve Foundary Co. v. Heiden, 924 F. 2d 729 (7th Cir. 1991) to examine in determining domicile. Those factors are as follows:
- the location of the current residence;
- voting registration;
- location of spouse and family;
- location of real and personal property;
- location of brokerage and bank accounts;
- memberships in churches, clubs, unions, and other organizations;
- location of a person’s lawyer, physician, accountant, and stockbroker;
- place of employment or business;
- driver’s license and automobile registration; and
- payment of taxes.
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In this case Debtors testified that they both vote in Ohio. The listed their address on the petition in Ohio and they filed for bankruptcy in Ohio. In addition, the Debtors were not occupying the property in Ohio. Debtors’ also testified that their Michigan property has is not their primary residence but is a secondary residence which they will be moving into and using as their primary residence once the Ohio property has been surrendered. Furthermore, in this case both Debtors maintained Ohio driver’s licenses and their children attended school in Ohio. Importantly, the Court noted that there was no evidence the Michigan home was ever occupied as a homestead.
The Court concluded in this Chapter 7 case that based upon the above factors the State of Ohio was Debtors’ domicile. It further determined that a debtor’s domicile is determined on the date that the case is filed and that a mere intention to occupy premises as a home at some future time without residence or occupancy is insufficient to establish a homestead.
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This decision would also be applicable to Chapter 13 bankruptcy in Ohio, and, if you have question about Chapter 13 you may wish to visit our Ohio state page. Likewise, you are welcome to visit our Chapter 7 bankruptcy page or Chapter 7 bankruptcy in Ohio page if you have questions about Chapter 7.
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