Florida/Georgia Personal Injury & Workers Compensation

...The Debtors admitted that the property was 1.05 acres and attempted to clarify the size of the claimed exempt and non-exempt property. A landowner can designate a portion of their property as their homestead, subjecting only the remainder to sale. Fla.Stat.Ann. § 222.02 (1989)....

...n. This exemption is claimed pursuant to Article X, § 4(a)(1) of the Florida Constitution. [3] Defendant argues that *348 the plaintiff is prevented from claiming her homestead as exempt because she never filed an affidavit of exemption pursuant to § 222.02, Fla.Stat. [4] , prior to the levy of her property by defendant AMERICAN CONSUMER. The Court concludes that plaintiff is entitled to exempt her homestead in this bankruptcy proceeding because § 222.02, Fla.Stat....

...The Court agrees with plaintiff's arguments that the Johns case is distinguishable from the case at bar. Johns involved personal property exemption rights while this case concerns real property homestead rights. A separate procedural statute was enacted to cover the assertion of real property homestead claims, § 222.02, Fla.Stat., and the cases construing this provision control....

...The real property exemption implementation statute, on the other hand, has only been amended once since its enactment in 1869, and that was to expand its coverage to include protection of mobile homes. See ch. 1715, § 2, 1869 Fla. Laws 20 and ch. 77-299, § 3 (1977). In addition, since § 222.02, Fla.Stat....

...and that these rights cannot be waived even though the statute is not followed. See, Baker v. State, supra , Albritton v. State, supra, and Fidelity & Casualty Co. of New York v. Magwood, supra . The failure of the legislature to significantly amend § 222.02, Fla.Stat....

...Because of the Florida Supreme Court's contemporaneous construction stated in 1869 in Baker v. State, supra , and restated in 1917 in Albritton v. State, that the constitutional homestead provisions are operative notwithstanding the failure to comply with § 222.02, Fla....

...specifically designate .50 acres as homestead *865 rather than the entire 1.05 acres as originally designated in the petition. The objectors' argue that the filing of the original schedule was the debtors' designation of a homestead exemption under Section 222.02 of the Florida Statutes and that no amendment to that declaration should be allowed....

..., would such a designation be permitted where, as the parties agreed, local laws would render a non-exempt tract to be untransferable and therefore effectively allow the debtors to keep property in excess of that allowed by the Florida Constitution. Section 222.02 of the Florida Statutes suggests that once a land-owner designates a portion of their property as homestead the "remainder only shall be subject to sale." Fla.Stat.Ann. § 222.02 (1989)....

...e Avenue Property). On March 15, 2001, Michael filed a motion to dismiss. The trial court denied this motion and permitted Valley Trucking to proceed with the levy on the Lake Avenue Property. Michael also filed an affidavit of homestead pursuant to section 222.02, Florida Statutes, (2001), claiming that the Lake Avenue Property was exempt from levy *215 and sale....

...The instant proceedings arose when the judgment creditor, appellee, sought to levy on this property in order to subject it to a judicial sale to satisfy the judgment. The appellant responded by delivering a Homestead and Exemption Notice, pursuant to § 222.02 Fla....

...Following the divorce, each spouse had an undivided one-half interest in the property. In late September, Ms. Grant received notice that a sheriff's sale of her home was scheduled for October 31 to satisfy Credithrift's judgment. On October 22, following the procedure specified by section 222.02, Florida Statutes (1979), Ms....

...Before levy, § 222.01 provides that a property owner "may" make a signed, written declaration that certain property qualifies as homestead and record this declaration in circuit court. Ms. Grant concedes that she did not follow this procedure. However, she did comply with the procedures under § 222.02 before the scheduled October 31 sale. Section 222.02 provides: Whenever a levy is made upon the lands ......

...house and make a § 222.01 designation just in case it might prove handy some day. Compliance with either statute — recording a prelevy designation in circuit court under § 222.01 or filing a postlevy sworn statement with the levying officer under § 222.02 — is effective to set apart and designate one's homestead. The question then becomes what effect a timely § 222.02 designation has on the sheriff's imminent sale. We recognize that the sheriff has a ministerial duty to levy on property described in writs of execution. Section 30.30(1), Fla. Stat. But § 222.02 clearly tempers that duty, and states without qualification that once a sheriff receives the affidavit claiming the exemption in proper form, the unclaimed "remainder only shall be subject to sale." The trial court erred in concluding that...

...omestead when many lawyers fail to grasp all the ramifications of "Our Legal Chameleon". [1] 5. That Kathleen LaGasse did not file a declaration of intent to make the 40th Street property her homestead prior to the attempted levy is immaterial. F.S. § 222.02 F.S.A....

...eriff at Aetna's direction levied on the 40th Street home. Kathleen had not theretofore designated the property as her homestead, but did so immediately after, by, on October 27, filing sworn notice with the sheriff. This was in accordance with F.S. Section 222.02, F.S.A., which provides inter alia as follows: "222.02 Designation of homestead after the levy Whenever a levy is made upon the lands * * * of such head of a family whose homestead has not been set apart * * * such person * * * may in writing notify the officer making such levy, by notice under oa...

...lf acre of *243 contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner's family; . . . Further, Florida law sets forth the procedure for an individual to claim a homestead after it has been levied upon: 222.02....

...y authorized to administer oaths, at any time before the day appointed for the sale thereof, of what such person regards as his or her homestead, with a description thereof; and the remainder only shall be subject to sale under such levy. Fla. Stat. § 222.02....

...The notice specifically states that "the undersigned claims as homestead exempt from levy and execution under Section 4, Article X of the State Constitution," the debtor's home. It is this claiming of homestead to which the phrase "claim ... a homestead exemption" refers in FLA. STAT. § 222.25(4)(2007). Second, FLA. STAT. § 222.02(2007) provides that rather than before a levy is made, a judgment debtor may still receive the benefits of the Florida Constitution's homestead exemption after a levy upon the debtor's home, by simply notifying the Sheriff making the levy that the property *886 levied upon is the debtor's homestead....

...property should not be subject to sale because it is her homestead. Furthermore, the Debtor has not "receive[d] the benefits of a homestead exemption" and there is nothing in the record which sets out facts that the same has occurred under FLA. STAT § 222.02 to which that phrase refers....

...a charging lien in favor of Jack Packar, P.A. in the amount of $7,875.00." The debtor and John Welton Donovan filed their Chapter 7 petition on August 27, 1991. In Schedule C, the debtors claimed that their homestead property was exempt under "F.S.A. § 222.02." (Although Fla. Stat. § 222.02 does not provide for a homestead exemption, for the purposes of this order the Court will consider the claim of exemption as having been properly made pursuant to Fla....

...17.) A Writ of Execution and Instructions to Levy were issued on March 23, 1992 on Lots 10 and 11. (Exhibits 18 and 19). On May 7, 1992, the day before the sale of Lots 10 and 11, Debtors, by hand, delivered a written notice, entitled "Affidavit and Notice of Designation of Homestead after Levy Pursuant to § 222.02, Florida Statutes," to the Lee County Sheriff....

...title, and interest in the Polk County Property in order to satisfy the 1997 judgment. After learning of the pending levy sale of his property, Sepulveda recorded a Notice of Claim of Homestead Real Property by Owner After Levy (“Notice of Homestead”), see § 222.02, Fla....

...(2013),1 on March 1, 2013, approximately two weeks before the levy sale was to take place. After filing his Notice of Homestead, Sepulveda moved to dismiss the county court action on the basis that the county court lacked subject matter 1Section 222.02 allows a property owner to serve a notice of homestead exemption on the levying officer after property has been levied upon so long as the notice is served before the date of the levy sale. Section 222.02 reads, in full: Whenever a levy is made upon the lands, tenements, mobile home, or modular home of such person whose homestead has not been set apart and selected, such person, or the person’s agent or attorney, may...

...determination can be made by a county court, or rather, whether section 222.10 grants exclusive jurisdiction to the circuit courts of Florida to determine whether property shall be exempt from a forced sale once a Notice of Homestead is filed pursuant to section 222.01 or 222.02. I....

...1912)). Chapter 222 of the Florida Statutes further clarifies the constitutional homestead protection by explaining the process by which an owner or lessee of real property can declare his or her homestead rights and prevent an execution of judgment (i.e., a levy sale) against the property. “Sections 222.01 and 222.02 provide a means whereby a person may claim property as homestead and notify judgment creditors of the property’s exempt status under article X, section 4, either pre- or post-levy.” Osborne, 55 So....

...is so rigorous that even a debtor who fails to observe these statutory declarations and claim the 7 Am., Inc., 402 So. 2d 486, 488 (Fla. 1st DCA 1981) (allowing post-levy designation of homestead under section 222.02). Once a homeowner has claimed a homestead exemption, the sheriff cannot levy against the property unless the creditor prevails against the homeowner’s claimed homestead exemption....

...1917)). 8 be exempt, is so exempt . . . .” Thus, section 222.10 will apply in every case where a creditor is attempting to levy against property where a claim of homestead has been filed under section 222.01 or section 222.02.5 These prerequisites were clearly met on these facts. It is undisputed that Sepulveda filed his Notice of Homestead under section 222.02 after Westport attempted to levy against the Polk County Property to satisfy its judgment against Arana, but prior to the levy sale....

...homestead exemption claims The relevant jurisdictional provision, section 222.10, provides, in full: 5 Section 222.10 may even apply to homeowners who intend to protect their property, but do not properly claim the homestead exemption under sections 222.01 or 222.02. See Osborne, 55 So. 3d at 583 (stating that the failure to strictly comply with 222.01 and 222.02 does not waive a homeowner’s homestead rights). 9  The circuit courts have equity jurisdiction upon bill filed by a creditor or other person interested in enforcing any unsatisfi...

...THIS MATTER came on for hearing upon the debtor's objection to the trustee's exemption report, wherein it was the position of the trustee that the debtor failed to qualify for homestead exemption as to real estate pursuant to Art. X, § 4, Fla.Const. and § 222.02, Fla.Stat....

...The Homestead Property was not listed on the Debtor's Schedule of Personal Property (Schedule B). On his initial Schedule of Property Claimed as Exempt (Schedule C), the Debtor claimed his interest in the Homestead Property as exempt pursuant to article X, section 4(a)(1) of the Florida Constitution, and § 222.01, § 222.02, and § 222.05 of the Florida Statutes....

...On October 30, 2007, the Debtor filed his first Amended Schedule A, Amended Schedule B, and Amended Schedule C. (Doc. 8). On his first Amended Schedule C, the Debtor again claimed his Homestead Property as exempt pursuant to article X, section 4(a)(1) of the Florida Constitution, and § 222.01, 222.02, and 222.05 of the Florida Statutes....

-7- 16 Couch on Insurance § 222:2 (3d ed. 2005) (“Subrogation is the substitution

properly to protect his rights under Fla.Stat. § 222.02, F.S.A. Appellant is correct in his contention

...ch determines whether the property qualifies as a homestead for purposes of protection from a forced sale. 2 Section 222.01 , Florida Statutes, provides a manner to establish homestead for purposes of debt protection prior to there being a levy and, section 222.02 , Florida Statutes, provides for the filing of an affidavit to establish homestead for purposes of debt protection after a levy has been made....