Residency and Bankruptcy

Residency and Bankruptcy

A bankruptcy debtor’s history of residency may give rise to the following issues:

Filing venue. The bankruptcy case must be filed in the federal judicial district in which the debtor resided, or his principal business assets were located, for the greatest part of the past 180 days immediately preceding the bankruptcy filing.

Exemption selection. The debtor must use property exemptions based on the state in which he lived for the two years immediately the bankruptcy filing, or, if he lived in more than one state during that two years, based on the state in which he lived for the greatest part of the 180 days immediately preceding those two years. This byzantine formula was enacted as part of BAPCPA in 2005 when nightly news reports were featuring multi-million-dollar homes/compounds being built, by executives of failed giant corporations, in Florida, which, like Oklahoma, had an unlimited homestead exemption. Sometimes those rules select a state whose laws provide that only a Tax current resident of that state may claim its exemptions; in that case, the debtor may use the federal exemption list. At, John R. Bates publishes a useful guide, covering all 50 states, as to (1) “what residency status must debtor have on date of filing to quality for the applicable state’s exemptions”, (2) “which state’s law is applicable on the date of the filing of the petition”, (3) “which of the applicable state’s exemptions apply to property located outside the state”, and (4) “what residency status must debtor have on date of filing to qualify for the federal exemptions.”

Homestead exemption. In Oklahoma, the exemption of a one-acre urban homestead or 160-acre rural homestead is not limited as to amount. In a bankruptcy case, federal bankruptcy law caps that exemption at $155,675 (that figure adjusts every three years). However, if the debtor acquired the homestead more than 1,215 days before filing bankruptcy, the cap does not apply (but caution if the homestead was purchased using non-exempt funds).

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Brian Huckabee

Brian Huckabee is a Tulsa, Oklahoma, attorney with a practice concentrated in bankruptcy and business law. He has handled thousands of business and consumer bankruptcy cases in the past three decades, consisting primarily of chapter 7 and 13 cases, but also including numerous chapter 11 business reorganizations and chapter 12 farm reorganizations. He represents corporate and individual debtors but also has credit union and creditor clients. He has served as an Adjunct Settlement Judge in the United States Bankruptcy Court for the Northern District of Oklahoma. He is a member (2020 chair) of the Board of Directors of the Bankruptcy and Reorganization Section of the Oklahoma Bar Association. He is licensed in all of Oklahoma’s federal judicial districts, but he concentrates in the Northern and Eastern Districts. He is a member of the Bankruptcy Section of the Tulsa County Bar Association. He received a Bachelor of Arts degree with Honors from Oklahoma State University in 1978 and a Juris Doctorate degree from University of Oklahoma in 1981. He has been married for over 30 years to a Tulsa attorney, and he has two grown children, one of whom is a Tulsa attorney. He attends Harvard Avenue Christian Church in Tulsa.