Constitutionality.

- Constitutionality of O.C.G.A. § 44-13-100(a)(9) is upheld because the statute does not violate the uniformity provision of the Bankruptcy Clause, the Supremacy Clause, or the Equal Protection Clause of the U.S. Constitution. In re Joyner, 489 Bankr. 292 (Bankr. S.D. Ga. 2012).

Limiting debtors to the $2,000 exemption for the cash value of life insurance did not violate the Supremacy Clause of the United States Constitution because Georgia law and federal law were not in conflict since Congress expressly granted states the power to opt-out of the federal exemptions and provide for exemptions under state laws. Furthermore, the statute applied uniformly to all debtors in bankruptcy. McFarland v. Wallace, 516 Bankr. 665 (S.D. Ga. 2014).

Limiting bankruptcy debtors to the $2,000 exemption for the cash value of life insurance, while permitting non-bankruptcy debtors to exempt the full cash surrender value of a life insurance policy under O.C.G.A. § 33-25-11, did not violate the Equal Protection Clause of the Georgia Constitution because bankruptcy debtors and non-bankruptcy debtors were not in similar circumstances and, therefore, the Georgia Constitution did not require that they receive equal treatment. McFarland v. Wallace, 516 Bankr. 665 (S.D. Ga. 2014).

O.C.G.A. § 44-13-100(a)(9) did not violate U.S. Const., Art. I, Sec. VIII, Para. IV, as the Constitution's call for bankruptcy uniformity did not somehow require states to treat bankruptcy and non-bankruptcy debtors exactly alike. McFarland v. Wallace (In re McFarland), 790 F.3d 1182 (11th Cir. 2015).

O.C.G.A. § 44-13-100(a)(9) did not violate Ga. Const. 1983, Art. I, Sec. I, Para. II, when the legislature rationally balanced the needs of creditors and bankruptcy debtors in requiring the debtors to sacrifice more of their penumbral property in order to obtain greater relief on property more central to a fresh start. McFarland v. Wallace (In re McFarland), 790 F.3d 1182 (11th Cir. 2015).

Application.

- O.C.G.A. § 44-13-100, by the statute's express terms, applies to bankruptcy debtors. By contrast, nothing in the history or language of O.C.G.A. § 33-25-11(c) indicates the legislature intended the statute to apply in bankruptcy; therefore, O.C.G.A. § 33-25-11(c) is unavailable for purposes of exempting property from a debtor's bankruptcy estate. In re Dean, 470 Bankr. 643 (Bankr. M.D. Ga. 2012).

Debtor's exemption in the cash surrender value of a life insurance policy received from a fraternal benefit society was limited to the amount in O.C.G.A. § 44-13-100(a)(9), and O.C.G.A. § 33-15-62 did not apply. Section44-13-100(a)(9) does not distinguish between policies provided by a fraternal benefit society and those that were not. Walton v. Gay (In re Gay), Bankr. (Bankr. S.D. Ga. Aug. 9, 2012).

Debtors were not entitled to reconsideration of an order finding that applicable vehicle exemption value allowed for debtors was the amount under the law on the date the debtors filed the debtors' petition, not the increased amount as of the conversion date, because the applicable law was the law as of the petition date. Dey v. Peoples Cmty Nat'l Bank, N.A. (In re Dey), Bankr. (Bankr. N.D. Ga. Nov. 1, 2013).

Judgment creditor's objection to the debtor's claim of a homestead exemption as excessive was not warranted because the $43,000 exemption limit was applicable based on the fact that the property was titled solely in the debtor's name, the debtor used the property as the debtor's residence, and the debtor's spouse was not a codebtor in the bankruptcy case. In re Mixon, Bankr. (Bankr. S.D. Ga. Jan. 2, 2014).

Georgia has opted out of the federal bankruptcy exemptions in favor of exemptions under state law; consequently, for debtors who are residents of Georgia, the applicable exemptions are those set forth in O.C.G.A. § 44-13-100(a). Mooney v. Webster, 300 Ga. 283, 794 S.E.2d 31 (2016).

Purpose.

- O.C.G.A. § 44-13-100 was passed with the specific purpose of determining what property shall be eligible for exemption from the bankruptcy estate. Additionally: (i) O.C.G.A. § 44-13-100(9) applies only to the cash surrender value of insurance policies and limits that exemption expressly to $2,000; (ii) O.C.G.A. § 33-25-11, on the other hand, protects all cash surrender value of an insurance policy but only from certain creditor remedies; it does not attempt to characterize cash surrender value as "exempt"; and, (iii) without clear direction from the Georgia legislature that it intended to do so, the court would not read § 33-25-11 to effectively eliminate § 44-13-100(a)(9). Roach v. Ryan (In re Ryan), Bankr. (Bankr. S.D. Ga. Jan. 17, 2012).

Bankruptcy court did not err in concluding that O.C.G.A. § 33-25-11 did not provide the bankruptcy debtor an exemption from the bankruptcy estate because O.C.G.A. § 44-13-100 prevailed over the more general provisions of O.C.G.A. § 33-25-11. McFarland v. Wallace, 516 Bankr. 665 (S.D. Ga. 2014).

Some of Georgia's state exemptions are found in O.C.G.A. § 44-13-100; however, in short, not all of Georgia's exemptions are contained within the four corners of O.C.G.A. § 44-13-100. Debtor's workers' compensation claims were beyond the reach of creditors in bankruptcy. In re Fullwood, 446 Bankr. 634 (Bankr. S.D. Ga. 2010).

Exemption for both spouses filing jointly even though property titled only in husband's name.

- Based on both the language and the legislative history of O.C.G.A. § 44-13-100(a)(1), the debtors could claim a $20,000.00 exemption, $10,000.00 for each spouse, for equity in their residence even though the property was titled only in the husband's name; there was no logical reason that the Georgia Assembly would give less protection to a couple filing jointly than to a debtor/non-debtor couple, and it appeared that a change in the language from a proposed amendment that clearly applied to jointly-filing spouses was changed to the current version to expand, not limit, the reach of the statute. In re Hartley, Bankr. (Bankr. N.D. Ga. July 18, 2002).

Exemption applies to debtor's "aggregate interest".

- Under Georgia law, an exemption applies to the "debtor's aggregate interest" in property, O.C.G.A. § 44-13-100(a), and the property may appreciate in value after the debtor has become entitled to the exemption. Mullis v. Aggeorgia Farm Credit, ACA (In re Jones), 357 Bankr. 888 (Bankr. M.D. Ga. 2005).

Similarity to federal and other states' law.

- Although Georgia, by enactment of O.C.G.A. § 44-13-100(b), has "opted out" of the federal list of exemptions found at 11 U.S.C. § 522(d) of the Bankruptcy Code, the exemption for part of a personal injury claim provided by O.C.G.A. § 44-13-100 is identical to the federal exemption provided by § 522(d)(11)(D) and to the exemption provided by statutes of other states. In re Geis, 66 Bankr. 563 (Bankr. N.D. Ga. 1986).

Exemptions set forth in O.C.G.A. § 44-13-100(a)(11)(A) were identical to those set forth in 11 U.S.C. § 522(d)(11)(A) and debtors were not permitted to exempt from the bankruptcy estate money that was ordered paid to them for restitution of a wrongful conversion of their property; debtors had not shown that the court ordered restitution was being made to compensate them for future loss of earnings or for personal injury. In re Seymour, 285 Bankr. 57 (Bankr. N.D. Ga. 2002).

Federal judicial precedent interpreting 11 U.S.C. § 522(d)(1) also determined what the Georgia General Assembly meant when it used the same words in O.C.G.A. § 44-13-100(a)(2)(E) because the state statute was modeled after the federal statute, the state statute had not changed since its original enactment, and any amendments were clearly intended to broaden the availability of exemptions. Goodman v. Bramlette (In re Bramlette), 333 Bankr. 911 (Bankr. N.D. Ga. 2005).

Privately funded annuity that the debtor claimed was exempt from the bankruptcy estate under O.C.G.A. § 44-13-100(a)(2.1), was analyzed under the requirements set forth in 11 U.S.C. § 522(d)(10) because the state statute closely patterned the federal scheme and referenced that the annuity would be exempt to the extent permitted by the bankruptcy laws of the United States. In re Michael, 339 Bankr. 798 (Bankr. N.D. Ga. 2005).

Exemptions not preempted by federal exemptions.

- Georgia's exemptions were not preempted by the federal exemptions, on the basis that the Georgia exemptions were below the federal exemptions, because nothing in 11 U.S.C. § 522(b) (or elsewhere in the Bankruptcy Code) limited a state's power to restrict the scope of the state's exemption; the state could theoretically accord no exemptions at all. Coleman v. Harris (In re Harris), Bankr. (Bankr. S.D. Ga. Oct. 21, 1999).

Georgia opted out of federal exemption scheme.

- Debtor could only assert a claim of $10,000 for a real property homestead exemption, pursuant to O.C.G.A. § 44-13-100 and could not claim more under the federal statutes because Georgia had opted out of the federal exemption scheme. In re Vaughn, Bankr. (Bankr. N.D. Ga. Nov. 25, 2008).

Argument that Georgia had not effectively opted out of the federal exemptions following the 1994 amendments to the Bankruptcy Code was rejected because states did not have to re-enact opt-out legislation following the 1994 amendments to the Bankruptcy Code. Coleman v. Harris (In re Harris), Bankr. (Bankr. S.D. Ga. Oct. 21, 1999).

The phrase "any property" in O.C.G.A. § 44-13-100(a)(6) should be given a liberal construction so as to include property which is partially exempt under other provisions of the statute. McGuire v. Landmark Fin. Servs., 132 Bankr. 803 (Bankr. M.D. Ga. 1987), aff'd, 132 Bankr. 807 (M.D. Ga. 1989).

Life insurance beneficiary rights.

- 11 U.S.C. § 522(d)(7) exempts only the life insurance contract itself and not any beneficiary rights; O.C.G.A. § 44-13-100(a)(8) exempts the same. Life insurance proceeds a debtor receives within 180 days after filing bankruptcy are property of the estate; § 44-13-100(a)(8) does not exempt these proceeds because that section does not apply to beneficiary rights. In re Gonzalez, Bankr. (Bankr. M.D. Ga. Nov. 8, 2012).

In a Chapter 13 case when the debtor sought to retain life insurance proceeds that the debtor received due to the debtor's spouse/joint debtor's death, while the proceeds were the property of the estate, a calculation that assumed declining commission income for the 68-year-old debtor resulted in most of the insurance proceeds determined to be reasonably necessary for the debtor's support and therefore exempt. In re Taylor, 523 Bankr. 915 (Bankr. S.D. Ga. 2014).

Court denied a Chapter 7 debtor's motion for an order rescinding an order the court issued in 2013 which required the debtor to turn over two life insurance policies to the Chapter 7 trustee, and which allowed the trustee to liquidate both policies if the debtor lost an appeal the debtor filed from the court's ruling that the debtor was not entitled under O.C.G.A. § 44-13-100 to exempt proceeds of a third policy from creditors' claims; there was no merit to the debtor's claims that the court lacked jurisdiction to enter the court's 2013 turnover order, and that the order was void because the relief the court provided required the filing of an adversary proceeding and could not be resolved pursuant to a contested matter. In re McFarland, Bankr. (Bankr. S.D. Ga. Mar. 7, 2016).

Homestead limited to unencumbered portion of property.

- A bankrupt is entitled to claim a homestead exemption only from the "aggregate interest" in real property under O.C.G.A. § 44-13-100(a), which means that only the unencumbered portion of the property is to be counted in computing the "value" of the property for the purposes of determining the exemption. Wallis v. Clerk, Superior Court, 166 Ga. App. 775, 305 S.E.2d 639 (1983).

Effect of lien on exempted property.

- Under 11 U.S.C. § 522, the debtor may exempt certain property even if the property is subject to a lien; however, property claimed as exempt remains subject to an otherwise unavoided lien. United States v. Wood, 28 Bankr. 383 (N.D. Ga. 1983).

Even though it was assumed that debtors' claimed homestead exemption was valid under Georgia law, although they had no monetary interest in their residence, the exemption was not impaired by a judgment lien as required by 11 U.S.C. 522(f), and the lien on the residence could not be avoided. Holloway v. John Hancock Mut. Life Ins. Co., 81 F.3d 1062 (11th Cir. 1996).

Proper method for calculating the avoidability of a judicial lien where debtor and the debtor's spouse jointly owed a first mortgage on their jointly owned home which was also subject to a second priority judicial lien owed solely by the debtor was to first deduct the mortgage from the total value of the home to establish the net equity which was divided equally between debtor and the debtor's spouse, and then apply the mathematical formula provided in 11 U.S.C. § 522(f)(2)(A) to debtor's one-half equity interest. To the extent the judicial lien would not permit the debtor to take an exemption in the property, the judicial lien impairs the debtor's exemption and is avoidable; however, a creditor retains its judicial lien on any unencumbered, nonexempt portion of debtor's equity in the property. Schupp v. Bearson (In re Schupp), 304 Bankr. 906 (Bankr. N.D. Ga. 2004).

Chapter 7 debtor's use of the debtor's vehicle with regard to the debtor's trade as a law clerk and tutor was solely limited to commuting purposes and, thus, the vehicle was not a tool of the trade under Georgia's exemption statute. As a result, the debtor could not avoid a creditor's title lien. Mitchell v. First Franklin Corp. (In re Mitchell), Bankr. (Bankr. N.D. Ga. Mar. 21, 2018).

Construction with Insurance Code.

- There is no indication that the Georgia General Assembly intended to amend or supplement the bankruptcy specific exemptions found in O.C.G.A. § 44-13-100 by way of the more general Georgia Insurance Code provisions. Rather, it appears that the General Assembly intended the Georgia Insurance Code to apply to nonbankruptcy situations with the bankruptcy specific exemptions in § 44-13-100 applying in bankruptcy cases. In re Allen, Bankr. (Bankr. M.D. Ga. Oct. 4, 2010).

Lien avoided.

- Lien against personal property impaired the exemptions to which debtor was entitled under Georgia law and therefore the lien was avoided under Bankruptcy Code. Williams v. Finance One, 45 Bankr. 789 (Bankr. N.D. Ga. 1985).

Debtors in bankruptcy whose property exemptions are defined by O.C.G.A. § 44-13-100 may use 11 U.S.C. § 522(f) to avoid liens that encumber the property they seek to exempt. Hall v. Finance One of Ga. Inc., 752 F.2d 582 (11th Cir. 1985).

The 11 U.S.C. § 522(f) lien avoidance provision is available to debtors claiming under O.C.G.A. § 44-13-100, and debtors may avoid a nonpossessory, nonpurchase-money security interest in a television and stereo system. Caruthers v. Fleet Fin., Inc., 87 Bankr. 723 (Bankr. N.D. Ga. 1988).

Judgment lienor's objection that Chapter 7 debtor undervalued the debtor's home in order to avoid the lien was overruled because the drive-by appraisal of the home performed by the lienor's appraiser was not credible compared with the complete appraisal performed by debtor's appraiser, which cited defects in the home, including a settlement problem. Schupp v. Bearson (In re Schupp), 304 Bankr. 906 (Bankr. N.D. Ga. 2004).

Because a debtor's total equity of $14,000 was less than the maximum allowed exemption in real property of $20,000.00 and her spouse did not file for bankruptcy, the debtor was entitled to avoid a judicial lien held by a creditor in its entirety with respect to the real property, a residence, pursuant to O.C.G.A. § 44-13-100(a)(1). Barnes v. Cavalry Invs. LLC (In re Barnes), Bankr. (Bankr. N.D. Ga. May 13, 2005).

Because a creditor's qualifying judicial lien would impair an exemption of the debtors if they amended their schedules to claim the exemption under O.C.G.A. § 44-13-100(1)(a), (6), the judicial lien was avoidable in its entirety under 11 U.S.C. § 522(f), as the amounts two non-avoidable mortgage liens plus the amount of the judicial lien exceeded the value of the real property. In re Smith, Bankr. (Bankr. M.D. Ga. May 16, 2006).

When the bankruptcy court concluded that an Internal Revenue Service tax lien, which was junior to the creditor's judicial lien on the debtor's home, should be included in the calculation under 11 U.S.C. § 522(f)(2)(A), and the sum of liens and the state exemption under O.C.G.A. § 44-13-100 greatly exceeded the debtor's interest in the property, the bankruptcy court correctly concluded that the creditor's judicial lien could be avoided in its entirety. Cadle Co. v. Taras (In re Taras), 131 Fed. Appx. 167 (11th Cir. Apr. 29, 2005)(Unpublished).

Debtor's aggregate interest in property is not limited to equity, but also includes the right to possession, the equity of redemption and the right to create future equity by making mortgage payments. Cravey v. L'Eggs Prods., Inc., 100 Bankr. 119 (Bankr. S.D. Ga. 1989).

Aggregation of exemptions.

- Debtors may add the "wildcard" exemption of O.C.G.A. § 44-13-100(a)(6) to their $200.00 per item exemption under O.C.G.A. § 44-13-100(a)(4), and thereby fully exempt certain of their household items that exceed $200.00 in value. In re Ambrose, 179 Bankr. 982 (Bankr. S.D. Ga. 1995).

Because a Chapter 7 debtor could have claimed an additional exemption of $ 500 under Georgia's "wildcard" exemption, O.C.G.A. § 44-13-100(a)(6), instead of just the § 44-13-100(a)(4) exemption, which was limited to $ 300, the debtor was given time to amend the Schedule C to exempt the debtor's laptop up to its full value. First Franklin Fin. v. Yawn (In re Yawn), Bankr. (Bankr. S.D. Ga. Feb. 5, 2010).

O.C.G.A. § 44-13-100(a)(6) is designed to prevent the exemption statute from discriminating unfairly against nonhomeowners. McGuire v. Landmark Fin. Servs., 132 Bankr. 803 (Bankr. M.D. Ga. 1987), aff'd, 132 Bankr. 807 (M.D. Ga. 1989).

Debtors, who owned a stereo worth $600, were entitled to exempt their interest in the stereo up to $200 under O.C.G.A. § 44-13-100(a)(4) and could exempt the remaining $400 value of the stereo under the "catch all" provisions of O.C.G.A. § 44-13-100(a)(6). McGuire v. Landmark Fin. Servs., 132 Bankr. 803 (Bankr. M.D. Ga. 1987), aff'd, 132 Bankr. 807 (M.D. Ga. 1989).

O.C.G.A. § 44-13-100 prevails over O.C.G.A. § 33-25-11. - O.C.G.A. § 44-13-100 is the statute specific to bankruptcy exemptions and therefore it prevails over the more general provisions of O.C.G.A. § 33-25-11; the Georgia legislature drafted the exemption statute, § 44-13-100, specifically with bankruptcy in mind. In doing so, it struck the intended balance between allowing a debtor in bankruptcy to exempt a limited amount of property in exchange for receiving a bankruptcy discharge; in striking this balance, the legislature limited the aggregate exemption in such policies to $2,000. In re Sapp, Bankr. (Bankr. S.D. Ga. June 15, 2012).

Entitlement to spousal homestead exemption.

- If a residence is titled only in the name of a married debtor, the debtor is entitled to a $20,000.00 homestead exemption to protect the equitable interest of the non-debtor spouse; however, if a residence is jointly titled in the names of the debtor and the non-debtor spouse, the debtor is limited to a $10,000.00 exemption. Wright v. Taylor (In re Taylor), Bankr. (Bankr. N.D. Ga. Jan. 27, 2005).

Chapter 7 debtor was entitled to a $10,000.00 exemption, not a $20,000.00 exemption, under O.C.G.A. § 44-13-100(a)(1) because, although the debtor's residence was titled in the names of both the debtor and the spouse, the spouse was not a debtor in the bankruptcy case. Wright v. Taylor (In re Taylor), Bankr. (Bankr. N.D. Ga. Jan. 27, 2005).

Enhanced exemption for married debtors pursuant to O.C.G.A. § 44-13-100(a)(1) applied only where the residence was titled in only one spouse and that spouse was a bankruptcy debtor; accordingly, because the property in the instant case was jointly owned, the debtor's homestead exemption was limited to $10,000.00. In re Hiers, Bankr. (Bankr. S.D. Ga. Sept. 26, 2005).

As a debtor owned only 50 percent of the debtor's residence, with the remaining 50 percent held by a living trust established for the benefit of the debtor's non-filing spouse, the debtor was not entitled to double the exemption provided for under Georgia's homestead exemption. Since the debtor had claimed value over and above the amount provided under that section, there was no "unused" portion of that exemption that trickled down to the debtor's wildcard exemption. Mann v. Burroughs (In re Burroughs), Bankr. (Bankr. N.D. Ga. Apr. 1, 2015).

When case pending, no homestead exemptions.

- The homestead exemptions of O.C.G.A. § 44-13-100(a)(1) and (a)(6) are available only to an individual who is in bankruptcy or who was a dependent of an insolvent intestate, and may not be realized so long as the case is pending and payments are still due to be made under the terms of a confirmed plan. In re Deeble, 169 Bankr. 240 (Bankr. S.D. Ga. 1994).

Homestead exemption waived.

- By the terms of the settlement agreement with the bankruptcy trustee, debtor waived any claim held against the estate, including a claim for an amended homestead exemption, in exchange for settlement of the estate's claim against the debtor. Moore v. Harrell, 212 Bankr. 174 (Bankr. S.D. Ga. 1997).

Applicability to separated spouse.

- Chapter 7 trustee's objection to a debtor's claim for a $20,000.00 exemption in the debtor's residence under the Georgia homestead exemption statute, O.C.G.A. § 44-13-100(a)(1), was overruled because: (1) O.C.G.A. § 1-3-1 did not invite a court to usurp the power of the General Assembly by legislating from the bench each time the exemption statute created an unusual result; (2) the duration of the debtor's separation from the debtor's spouse, while indicative of a desire to discontinue the traditional role of spouse, was not determinative of a circumstance that would authorize the court to consider such a person as an entity other than a "spouse" as used in the homestead exemption statute; and (3) there was no basis for inferring legislative intent to allow married couples, whether they lived together or separately, to spread a $20,000.00 exemption across multiple residences. In re Green, 319 Bankr. 913 (Bankr. M.D. Ga. 2004).

Exemption of veteran's benefits.

- Allowing a debtor to use debtor's exempt naval benefits to attain Chapter 13's broad discharge, without the corollary requirement to use it to pay creditors as much as debtor is able, would contravene the express purpose of O.C.G.A. § 44-13-100 - namely, that the debtor make payments under a plan - and thus would constitute "substantial abuse" of the bankruptcy process under 11 U.S.C. § 707(b). In re Rogers, 168 Bankr. 806 (Bankr. M.D. Ga. 1993).

Social Security benefits.

- Bankruptcy court did not have jurisdiction under 28 U.S.C. § 1334(b) to hear an adversary proceeding a Chapter 7 debtor filed against the Social Security Administration (SSA) seeking an order requiring the SSA to waive recovery of overpayments of Social Security disability benefits the debtor received. The debtor's claims did not arise under the Bankruptcy Code and there was no nexus between the debtor's claims and the administration of the debtor's bankruptcy estate because the disability benefits were exempt property under 11 U.S.C. § 522(d)(10) and O.C.G.A. § 44-13-100. Rodriquez v. United States (In re Rodriquez), Bankr. (Bankr. N.D. Ga. Mar. 23, 2010).

Health savings account does not constitute a right to receive a disability, illness, or unemployment benefit for the purposes of O.C.G.A. § 44-13-100(a)(2)(C), nor does it constitute a right to receive a payment under a pension, annuity, or similar plan or contract for the purposes of O.C.G.A. § 44-13-100(a)(2)(E). Mooney v. Webster, 300 Ga. 283, 794 S.E.2d 31 (2016).

Debtor's health savings account did not constitute a right to receive a disability, illness, or unemployment benefit nor a right to receive a payment under a pension, annuity, or similar plan or contract for the purposes of O.C.G.A. § 44-13-100 because it was not a substitute for wages, thus, the exemptions provided in § 44-13-100(a)(2)(C) and (a)(2)(E) did not apply. Mooney v. Webster, 300 Ga. 283, 794 S.E.2d 31 (2016).

Insurance proceeds from loss of exempt property.

- Debtor could not use the Georgia motor vehicle exemption under O.C.G.A. § 44-13-100(a)(3) to exempt proceeds from a property damage settlement that resulted from a car accident in which her vehicle was destroyed; the proceeds that the debtor sought to exempt were compensation for the loss of a car and were not protected by the exemption statute either as a motor vehicle or as proceeds of a motor vehicle. In re Carelock, Bankr. (Bankr. S.D. Ga. Jan. 13, 2006).

Phrase "debtor's interest" in O.C.G.A. § 44-13-100(a)(4) does not mean only "equitable interest." Debtors have an interest even in their fully-encumbered property. Maddox v. Southern Disct. Co., 34 Bankr. 801 (Bankr. N.D. Ga. 1982); Moyer v. Fleet Fin., 39 Bankr. 211 (Bankr. N.D. Ga.), aff'd, 746 F.2d 814 (11th Cir. 1984), cert. denied, 471 U.S. 1053, 105 S. Ct. 2113, 85 L. Ed. 2d 478 (1985).

Priority of judgment creditor.

- The rights of the judgment creditor, based upon a homestead waiver note, are superior to the rights of the holders of homestead waiver notes which had not been reduced to judgment, upon the principle that the law favors the diligent, not the slothful. Rosenthal v. Langley, 180 Ga. 253, 179 S.E. 383, appeal dismissed, 295 U.S. 720, 55 S. Ct. 916, 79 L. Ed. 1674 (1935).

Resort to equity not necessary.

- Where the widow of an insolvent intestate proceeds to obtain an exemption of personal property, there is no necessity to resort to equity to prevent the property from being seized and sold by a creditor of the intestate pending the filing and record of the widow's schedule, or after such filing and record. The widow's remedy to recover the property from one having unlawful possession is by possessory warrant in a proper case, or by trover. Morgan v. Community Loan & Inv. Co., 195 Ga. 675, 25 S.E.2d 413 (1943).

Income from exempted property.

- Where the head of a family rented land set apart as an exemption under O.C.G.A. § 44-13-100, after having abandoned his wife and moved away from the exempted land, his wife was allowed to collect the rent, and neither the tenant nor the wife was liable to the husband therefor. Wood v. Wood, 171 Ga. 389, 155 S.E. 678 (1930).

Exempt property turned over to debtors.

- Debtors were entitled to have property exempted from their Chapter 13 bankruptcy petition turned over to them prior to the conclusion of the bankruptcy plan. Gamble v. Brown, 168 F.3d 442 (11th Cir. 1999).

Farmer-debtor.

- A farmer-debtor will be permitted to exempt and avoid the lien on large items of farm equipment and to combine the farmer's $500.00 exemption for tools of the trade in O.C.G.A. § 44-13-100(a)(7) with the "wild card" exemption in O.C.G.A. § 44-13-100(a)(6) of $5,400.00. South Atl. Prod. Credit Ass'n v. Jones, 87 Bankr. 738 (Bankr. M.D. Ga. 1988).

The debtor, a farmer for 35 years, stated an intention to resume farming. Those items of equipment claimed exempt were essential to the debtor if the debtor was to resume farming. The debtor was a farmer for the purpose of claiming an exemption in farm implements and tools of the trade under O.C.G.A. § 44-13-100(a)(7) and for the purpose of avoiding a creditor's lien under 11 U.S.C. § 522(f)(2)(B). South Atl. Prod. Credit Ass'n v. Jones, 87 Bankr. 738 (Bankr. M.D. Ga. 1988).

Bankruptcy court sustained a trustee's objection to a Chapter 7 debtor's claim that an interest in a tractor was exempt from creditors' claims up to $3,500 under O.C.G.A. § 44-13-100(a)(3) because the tractor was a motor vehicle. The tractor was not a "motor vehicle" under § 44-13-100(a)(3) because the tractor was not designed to be used, nor ordinarily used, to transport people or property on roads. In re Matthews, 449 Bankr. 833 (Bankr. M.D. Ga. 2011).

"Tools of the trade" defined.

- In Georgia, a tool of the trade is an implement used by a person in that person's work. Curry v. Dial Fin. Corp., 18 Bankr. 358 (Bankr. N.D. Ga. 1982).

The term "tool of the trade" contemplates that the person uses the tool with his hands, and that the person's work requires some degree of manual skill. Curry v. Dial Fin. Corp., 18 Bankr. 358 (Bankr. N.D. Ga. 1982).

Tools of tile setter.

- The tools used by a debtor in work as a tile setter might well be classified as tools of the trade for bankruptcy purposes. Curry v. Dial Fin. Corp., 18 Bankr. 358 (Bankr. N.D. Ga. 1982).

A pickup truck used for transportation to work is not a tool of the trade of the debtor and the lien may not be avoided. Curry v. Dial Fin. Corp., 18 Bankr. 358 (Bankr. N.D. Ga. 1982).

Tractor as tool of trade of farmer.

- Bankruptcy court allowed a Chapter 7 debtor's claim that a tractor the debtor owned was exempt from creditors' claims up to $1,500 under O.C.G.A. § 44-13-100(a)(7) because the debtor used the tractor to farm real property he owned with his wife, and it was a "tool of his trade." However, the court sustained a trustee's objection to the wife's claim that she was also entitled to claim an exemption under § 44-13-100(a)(7) because she did not drive the tractor and had not used the tractor to conduct farming operations. In re Matthews, 449 Bankr. 833 (Bankr. M.D. Ga. 2011).

A debtor has an "interest" in property encumbered by a nonpossessory, nonpurchase-money security interest. Finance One v. Bland, 793 F.2d 1172 (11th Cir. 1986).

Life insurance exemptions under

§ 44-13-100(a)(8). - O.C.G.A. § 44-13-100(a)(8) allows a debtor to exempt the unmatured life insurance policy itself, but this does not permit the debtor to exempt the cash value of the life insurance policy. Flatau v. Waggoner (In re Waggoner), 244 Bankr. 492 (Bankr. M.D. Ga. 2000).

Life insurance exemptions under

§ 44-13-100(a)(11)(C). - Bankruptcy court found that a wife who filed a joint petition with her husband under Chapter 7 of the Bankruptcy Code three months before her husband died was dependent on her husband's ability to run a company they owned together, and it allowed the wife to exempt $84,588 out of almost $105,000 in life insurance proceeds she received, pursuant to O.C.G.A. § 44-13-100(a)(11)(C); although the court refused to assume that the state legislature intended to permit spouses to exempt life insurance proceeds simply because language which appeared in § 44-13-100(a)(11)(C) was similar to language which appeared in 11 U.S.C. § 522(d)(11)(C), it found that the wife was a "dependent" for purposes of § 44-13-100(a)(11)(C). In re Bright, Bankr. (Bankr. N.D. Ga. July 16, 2007).

Chapter 7 trustee's objection was sustained and a debtor was denied an exemption under O.C.G.A. § 44-13-100(a)(11)(C) in the liquidated life insurance proceeds from the debtor's late spouse because the debtor voluntarily transferred the funds to the executor of the late spouse's estate under 11 U.S.C. § 522(g) in the belief that the law required such turnover, and the debtor failed to show that the debtor was subject to any great pressure to transfer the funds or that the debtor would not have turned the funds over if the debtor had known that the funds were not property of the spouse's estate. In re Sumner, Bankr. (Bankr. N.D. Ga. Nov. 26, 2007).

Exemption of personal injury payments.

- Exemption for bodily injury claim can be based only on the exemption statute, not on the assignability of the claim, and therefore the maximum amount which a debtor can claim as exempt under O.C.G.A. § 44-13-100 is $7,500.00. In re Geis, 66 Bankr. 563 (Bankr. N.D. Ga. 1986).

Even though a debtor's interest in a personal injury claim was considered exempt property pursuant to O.C.G.A. § 44-13-100(a)(11)(D), it had to be included in her Chapter 13 plan as "disposable income" for use by the trustees to pay creditors, pursuant to 11 U.S.C. § 1325, because the debtor's regular income was sufficient to cover her monthly expenses. In re Springer, 338 Bankr. 515 (Bankr. N.D. Ga. 2005).

Court had authority under 11 U.S.C. § 329 over an attorney's fees because the personal injury case in which the attorney represented the Chapter 13 debtor was connected to the bankruptcy case; the debtor filed for bankruptcy due to lost wages following the accident, and any claim in excess of the debtor's exemption under O.C.G.A. § 44-13-100(a)(11)(D) would be property of the estate. In re Thornton, Bankr. (Bankr. S.D. Ga. Aug. 8, 2005).

Under O.C.G.A. § 44-13-100(a)(11)(E), a debtor could exempt compensation for lost future wages, notwithstanding the fact that the claim for lost future wages arose from a personal bodily injury. This was analogous to permitting an exemption of a portion of a personal injury settlement or award under 11 U.S.C. § 522(d)(11)(D) and a portion under 11 U.S.C. § 522(d)(11)(E). In re Lowery, Bankr. (Bankr. N.D. Ga. Sept. 24, 2007).

It was undisputed that debtor had suffered serious injuries due to a 1996 collision, including injuries to the neck, back, and shoulder, and the debtor testified that the debtor still required physical therapy, experienced back pain, and suffered from memory loss. In light of these circumstances, a portion of the $25,000 payment was intended to compensate debtor for the actual bodily injuries that were suffered in the collision. Wasden v. Nationwide Mutual Ins. Co. (In re Weaver), Bankr. (Bankr. S.D. Ga. July 19, 2006).

Due to injuries suffered in a 1996 collision, it was undisputed that the debtor could neither continue in the debtor's job as a clerical assistant nor continue studies to become an x-ray technician, and the debtor testified that the debtor had not had full-time employment since the collision and that the debtor's primary income had been in the form of payments from Social Security and pension. In light of debtor's circumstances, a portion of the $25,000 payment was reasonably necessary to support the debtor and was intended to compensate the debtor for loss of future earnings due to the collision. Wasden v. Nationwide Mutual Ins. Co. (In re Weaver), Bankr. (Bankr. S.D. Ga. July 19, 2006).

Allowance of $7,500.00 for debtor's actual bodily injury was not unreasonable, where evidence showed debtor had a five percent permanent impairment to debtor's shoulder. In re Howard, 169 Bankr. 77 (Bankr. S.D. Ga. 1994).

$15,000.00 loss-of-future-earnings exemption unreasonable.

- Where a debtor's current family income exceeded current expenses by approximately $500.00 per month, and the debtor's prospects for the future suggested debtor's income was likely to increase, and there was no showing that the debtor or a dependent of the debtor was dependent on the exemption to provide for their support, an exemption of $15,000.00 was unreasonable and was disallowed. In re Howard, 169 Bankr. 77 (Bankr. S.D. Ga. 1994).

Award in age-discrimination action.

- An award in favor of a bankruptcy debtor in an action under the federal Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., was not "compensation of loss of future earnings" and was not exempt under O.C.G.A. § 44-13-100. In re Williams, 197 Bankr. 398 (Bankr. M.D. Ga. 1996).

Workers' compensation benefits are exempt in their entirety under the federal bankruptcy statute (11 U.S.C. § 522(d) (10)(C)), which provides for exemption, regardless of amount, of disability, illness or unemployment benefits. In re Cain, 91 Bankr. 182 (Bankr. N.D. Ga. 1988).

Exempt status of workers' compensation awards.

- O.C.G.A. § 44-13-100 did not need to address the exempt status of Workers' Compensation awards again because there was a broad exemption already in place; the statute did carve out the cash surrender values of life insurance policies, which were not already exempt, but placed a cap on the policies. Debtor's life insurance cash surrender value exemption here was limited to the $2,000 set by § 44-13-100(a)(9). Roach v. Ryan (In re Ryan), Bankr. (Bankr. S.D. Ga. Jan. 17, 2012).

Denial of recoupment of disability benefits would not benefit other creditors because post-petition disability benefits are exempt under O.C.G.A. § 44-13-100(a)(2)(C); therefore, barring recoupment was not necessary to treat similarly situated creditors alike, because in no event would creditors have shared in the stream of benefit payments. Anthem Life Ins. Co. v. Izaguirre, 166 Bankr. 484 (Bankr. N.D. Ga. 1994).

Wrongful death annuity.

- Annuity based upon a structured settlement for the wrongful death of debtor's minor son qualified for exemption, where the annuity was created in consideration of debtor's age and, under the terms of the annuity, debtor was not entitled to cash in the annuity and could not invade the principal in any manner. In re Wommack, 80 Bankr. 578 (Bankr. M.D. Ga. 1987).

Age as factor in annuity.

- Supreme Court of Georgia holds that a debtor's right to receive payments from an annuity is on account of age if there exists a causal connection between the right to payment and the debtor's age; the requisite connection may be established in a myriad of ways, proof of which is limited only by the circumstances under which the annuity is created and the terms and conditions of the annuity itself. Silliman v. Cassell, 292 Ga. 464, 738 S.E.2d 606 (2013).

For purposes of O.C.G.A. § 44-13-100(a)(2)(E), when determining whether a right to receive payment is on account of age, courts should focus on whether the right to payment is causally connected to the payee's age, not on the payee's intent in purchasing the annuity. Silliman v. Cassell, 292 Ga. 464, 738 S.E.2d 606 (2013).

Life insurance cap.

- Lower courts properly limited the exemption of a life insurance policy to $2,000 under O.C.G.A. § 44-13-100(a)(9) when the specific language of that statute governed over the more general debtor language in O.C.G.A. § 33-25-11(c) and § 44-13-100(a)(9) required such a result. McFarland v. Wallace (In re McFarland), 790 F.3d 1182 (11th Cir. 2015).

Exemption of annuity contract.

- Chapter 7 debtor's interest in an annuity contract from a life insurance company was not exempt under O.C.G.A. § 44-13-100(a)(2) as it was not a contract to provide benefits in lieu of earnings after retirement or a plan created to fill or supplement a wage or salary void and although the debtor had purchased the annuity in contemplation of retirement, the debtor had made only one contribution shortly before the filing of the bankruptcy case, had discretion to withdraw from the corpus, and had the option to decide at a later time to receive a fixed return on the investment. Goodman v. Bramlette (In re Bramlette), 333 Bankr. 911 (Bankr. N.D. Ga. 2005).

Annuity purchased by the debtor was exemptible under O.C.G.A. § 44-13-100(a)(2)(E) because: (i) the debtor intended the annuity to be a wage substitute and evidenced the debtor's intent, not only in testimony, but by the payment option the debtor selected; (ii) the payment option reflected no real return on the debtor's investment but instead an intent to obtain income for the debtor's life; (iii) there was no persuasive evidence that the purchase of the annuity was part of pre-bankruptcy planning; and (iv) the debtor did not have inappropriate control over the annuity. Silliman v. Cassell (In re Cassell), 443 Bankr. 200 (Bankr. N.D. Ga. 2010).

Supreme Court of Georgia concludes that in deciding whether a particular annuity is of the type intended to come within the § 44-13-100(a)(2)(E) exemption, the pertinent question is whether the annuity provides income as a substitute for wages and to make that determination, courts must consider the nature of the contract giving rise to the annuity, as well as the facts and circumstances surrounding the purchase of the annuity. Silliman v. Cassell, 292 Ga. 464, 738 S.E.2d 606 (2013).

Debtor's ability to choose among several different plans for investment at the time the debtor purchased the annuity is not significant for exemption purposes under 11 U.S.C. § 522(d)(10)(E), rather, what is relevant and legally significant in that analysis is the nature of the plan actually selected and the level of control a payee retains over the funds and payments thereafter. Silliman v. Cassell, 292 Ga. 464, 738 S.E.2d 606 (2013).

Annuity did not fit within the scope of O.C.G.A. § 44-13-100 (a)(2)(E). The Annuity was not intended or designed to be a wage substitute; the nature of the annuity and the debtor's control over the annuity aligned the annuity outside the scope of the Georgia exemptions. Wallace v. McFarland (In re McFarland), 500 Bankr. 279 (Bankr. S.D. Ga. 2013).

While the debtor may have intended the annuity to provide security for the debtor's wife upon the debtor's death, O.C.G.A. § 44-13-100(a)(2)(E) made clear that the exemption was limited to a debtor's right to receive payment. Wallace v. McFarland (In re McFarland), 500 Bankr. 279 (Bankr. S.D. Ga. 2013).

Annuity at issue fell outside the scope of "annuity" for purposes of O.C.G.A. § 44-13-100(a)(2) because it did not provide income as a substitute for wages. In re Sheffield, 507 Bankr. 400 (Bankr. S.D. Ga. 2014).

Bankruptcy court did not clearly err in concluding that the bankruptcy debtor's annuity was not an annuity within the meaning of the annuity exemption because the annuity more closely resembled a nonexempt investment rather than a substitute for wages. McFarland v. Wallace, 516 Bankr. 665 (S.D. Ga. 2014).

Debtor's annuity did not qualify for exemption under O.C.G.A. § 44-13-100(a)(2)(E) when the annuity was structured more like a future investment than a substitute for wages, and the debtor conceded as much. McFarland v. Wallace (In re McFarland), 790 F.3d 1182 (11th Cir. 2015).

Annuity payment reasonably necessary for living expenses.

- Pension payments were found to be reasonably necessary for the support of the debtors and the debtors' dependents in accordance with O.C.G.A. § 44-13-100(a)(2)(E) under the following circumstances: (i) the debtors documented in the debtors' schedules that the debtors current average monthly income was $4,376; (ii) the debtors' total monthly income included the debtors half of the annuity proceeds in the amount of $1,621; (iii) the debtors listed $4,318 as the average monthly expenses, leaving $58 as the average monthly net income; and (iv) the debtors also had three dependent daughters, and the debtors' schedules showed that the pension payments were relied upon in order to pay the debtors' reasonable and necessary living expenses. Baker v. Penton (In re Penton), Bankr. (Bankr. N.D. Ga. Feb. 15, 2013).

Stock bonus and profitsharing plans not exempt.

- The Georgia legislature intended that stock bonus and profitsharing plans were not to be included as exempt under O.C.G.A. § 44-13-100(a)(2)(E) and that the words "or similar plan" were not to be extended to cover such plans. In re Gillespie, 63 Bankr. 124 (Bankr. N.D. Ga. 1985).

An unretired employee-debtor's interest in an Employee Retirement Income Security Act-qualified pension plan is not entitled to exemption under O.C.G.A. § 44-13-100(a)(2)(E), which only exempts payments under such a plan. In re Craddock, 62 Bankr. 583 (Bankr. N.D. Ga. 1986).

Tax shelter annuity.

- Debtor's tax shelter annuity did not meet the requirements of O.C.G.A. § 44-13-100(a)(2.1), where the annuity plan was maintained by an insurance company which was not a nonprofit corporation, and not by the state, its political subdivision, or the debtor's employer. In re Herndon, 102 Bankr. 893 (Bankr. M.D. Ga. 1989).

Debtor's tax shelter annuity failed to meet the exemption requirements of O.C.G.A. § 44-13-100(a)(2)(E), where the debtor was not receiving payments from the annuity which were necessary for debtors or debtor's dependent's support. In re Herndon, 102 Bankr. 893 (Bankr. M.D. Ga. 1989).

Exemption of Roth IRAs.

- Chapter 7 debtor was permitted to exempt the corpus of her Roth individual retirement account (IRA) under O.C.G.A. § 44-13-100(a)(2)(E) because federal judicial precedent interpreting 11 U.S.C. § 522(d)(10) concluded that the corpus was exempt, that precedent was instructional in determining the Georgia General Assembly's intent at the time the state statute was enacted, the amendments to the state statute regarding traditional IRAs did not preclude a conclusion of exemption as the Roth IRA was not in existence at the time the state statute was amended, and the Roth IRA was clearly a retirement vehicle. Goodman v. Bramlette (In re Bramlette), 333 Bankr. 911 (Bankr. N.D. Ga. 2005).

Repayment of retirement loan.

- While the retirement account balance on the loan date of filing for bankruptcy is exempt, pursuant to O.C.G.A. § 44-13-100(a)(2.1)(C), only the equity in the account is protected, not voluntary payments to augment that equity. In re Aliffi, 285 Bankr. 550 (Bankr. S.D. Ga. 2002).

Exemption denied for Health Savings Account.

- Debtor was not entitled to claim the debtor's health savings account (HSA) as exempt because the debtor's HSA was not a substitute for wages, and it was not the type of illness benefit or right to receive payment on account of illness contemplated by O.C.G.A. § 44-13-100(a)(2)(C) and (E). In re Mooney, 503 Bankr. 916 (Bankr. M.D. Ga. 2014).

Bankruptcy debtors entitled to exemption in property.

- See Orsburn v. Diners Club, Inc., 35 Bankr. 217 (Bankr. N.D. Ga. 1983).

After considering various dictionary definitions of the word "dependent" and Fed. R. Bankr. P. 4003(c), a court concluded that a Chapter 7 trustee failed to carry the burden of proving that the debtors' 22 year-old daughter and grandson were not their "dependents" at the time of the bankruptcy filing to qualify for a residential exemption under O.C.G.A. § 44-13-100(a)(1); the debtors had the presumption of validity in their favor, and the limited evidence on dependency, including the fact that the debtors claimed them as dependents on their income tax return and that the daughter did not have steady employment, supported the conclusion that the daughter and grandson were dependents. In re Holt, 357 Bankr. 917 (Bankr. M.D. Ga. 2006).

Chapter 7 debtor was entitled to claim that funds the debtor's employer withheld from the debtor's wages and remitted to a Georgia court were exempt from creditors' claims under O.C.G.A. § 44-13-100(a)(6) because the debtor still had the right at the time the debtor declared bankruptcy to file a traverse under O.C.G.A. § 18-4-93 to an affidavit a creditor filed when the creditor garnished the debtor's wages. Because the debtor retained an interest in the funds, the funds became the property of the debtor's bankruptcy estate under 11 U.S.C. § 541(a)(1) and could be exempted from the creditors' claims, and a lien the creditor held on the funds could be avoided under 11 U.S.C. § 522(f). In re Williams, 460 Bankr. 915 (Bankr. N.D. Ga. 2011).

Creditor failed to meet the creditor's burden of proof with respect to the creditor's objection to a debtor's IRA exemptions as the debtor had funds in a pension plan that were exemptible under the Bankruptcy Code and Georgia law before the debtor's fraudulent acts that gave rise to a nondischargeable debt and, while the debtor subsequently converted the pension funds to IRA accounts, the debtor did not convert non-exempt assets to exempt assets. Santa Ana Unified Sch. Dist. v. Montgomery (In re Montgomery), Bankr. (Bankr. N.D. Ga. Sept. 18, 2013).

Chapter 7 debtor's cluster of cash withdrawals and checks written to cash immediately preceding the debtor's bankruptcy filing and the debtor's evasive testimony about what the debtor did with the cash strongly implied that the debtor was emptying the debtor's account and hiding cash in anticipation of filing the debtor's case and that the debtor was still in possession of the cash. Thus, the debtor was ordered to turn over the cash, less the debtor's $300 Georgia exemption in money in the debtor's checking account, to the trustee. Overstreet v. Ricks (In re Ricks), Bankr. (Bankr. S.D. Ga. July 15, 2013).

Chapter 13 debtors who purchased a 7.5-acre tract of unimproved land and subsequently gave a creditor a security interest in part of the property were allowed under O.C.G.A. § 44-13-100 to claim both the portion of the property that was encumbered and the portion of the property that was unencumbered as their homestead because the debtors lived in a manufactured home the debtors installed on the property and treated the entire 7.5 acres as the debtors' residence; Georgia bankruptcy courts that had discussed a method for determining whether adjoined parcels of land were part of a debtor's residence had focused on how debtors used the property. Goodman v. Vaughn (In re Vaughn), Bankr. (Bankr. N.D. Ga. Apr. 30, 2014).

Bankruptcy debtors not entitled to exemption in property.

- Court sustained a Chapter 7 trustee's objection to an exemption in real and personal property for the debtors' block house property after finding no authority in the language of O.C.G.A. § 44-13-100(a)(1) or in case law that allowed them to exempt equity in a property adjacent to their residence that was leased to a residential tenant; clearly, the block house property was not used by the debtors or their dependents as a residence as required by the statute. In re Holt, 357 Bankr. 917 (Bankr. M.D. Ga. 2006).

Chapter 7 trustee and a junior lien-holder's carve-out agreement provided that the latter would receive some of the proceeds from the 11 U.S.C. § 363 sale of the debtors' home and that the trustee would receive the remainder after paying the first-priority lien; the debtors' state-law exemptions did not apply to the funds received by the estate under the carve-out agreement as the exemptions could not have attached to the property as of the petition date because it was wholly underwater, and the trustee's carve-out represented the value added from the trustee's efforts and powers, not the value of the property itself. In re Diener, Bankr. (Bankr. N.D. Ga. July 1, 2015).

Although a profit-sharing plan a Chapter 7 debtor established while the debtor owned a home-building company was not covered by ERISA because the debtor was the only trustee and beneficiary of the plan, money in the plan could still be exempted from creditors' claims under 11 U.S.C. § 541 if the plan was a qualified plan under 26 U.S.C. § 401; however, the evidence did not support the debtor's claim that even assuming that money in the plan was property of the debtor's bankruptcy estate, the debtor could exempt plan funds from the creditors' claims pursuant to O.C.G.A. § 44-13-100 and 11 U.S.C. § 522 because the debtor was not able to show the debtor had obtained a favorable opinion letter from the IRS. RES-GA Dawson, LLC v. Rogers (In re Rogers), 538 Bankr. 158 (Bankr. N.D. Ga. 2015).

Exemption denied in former residence in which debtor retained a security interest.

- Debtor was denied an exemption in the debtor's former residence under O.C.G.A. § 44-13-100(a)(1), since the debtor had sold the property and moved from it, retaining a security interest and receiving monthly payments, as it was no longer the debtor's residence. In re Page, 289 Bankr. 484 (Bankr. S.D. Ga. 2003).

Requirement of title ownership in bankruptcy.

- Debtor was entitled to claim the $20,000.00 exemption under O.C.G.A. § 44-13-100(a)(1) where the debtor's spouse did not have title to the home and did not file bankruptcy with the debtor; the statute imposed no requirement that the non-titled spouse also be in bankruptcy. In re Burnett, 303 Bankr. 684 (Bankr. M.D. Ga. 2003).

Exemption limited where non-resident spouse made no claim to the property.

- Trustee's objection to a debtor spouse's Georgia homestead exemption claim under O.C.G.A. § 44-13-100(a)(1) for $17,000.00 was granted because the spouse's exemption was limited to $10,000.00 since: (1) the legislative intent was to protect the resident non-debtor spouse's interest in property where only one spouse filed for bankruptcy and property was titled only in the debtor-spouse, which was not the case in the instant matter; (2) the interpretation urged by the spouse would have allowed each of two debtor spouses to claim a full $20,000.00 exemption in two separate residences so long as they filed two separate bankruptcy cases; and (3) the non-debtor spouse made no claim on the residence. In re Neary, Bankr. (Bankr. N.D. Ga. Apr. 21, 2004).

Bankruptcy debtor not entitled to exemption in note inherited by wife.

- Chapter 7 debtor husband was not entitled to an exemption under O.C.G.A. § 44-13-100(a)(6) in a promissory note that the debtor wife inherited from her father because the debtor wife did not by her actions show an intent to convert the note into joint marital property. In re Malia, Bankr. (Bankr. N.D. Ga. Feb. 7, 2012).

Wife without legal interest in inherited property.

- Intention expressed by a husband who was joint debtor, with his wife, in a bankruptcy case under Chapter 13, to convert the proceeds to be received by him upon the sale of real estate in which he had inherited an interest, was an insufficient basis on which to find that the wife was entitled to claim an exemption in those proceeds under O.C.G.A. § 44-13-100(a)(6) (Georgia) and 11 U.S.C. § 522(b) because the nature of the wife's interest therein was fixed as of the date of the Chapter 13 bankruptcy per 11 U.S.C. § 348(f)(1) and on that date, the wife had no legal interest in the inherited property. In re Garner, Bankr. (Bankr. N.D. Ga. July 23, 2012).

Payments to disabled adult in Chapter 13.

- Trustee's objection to a debtor's exemption claim per 11 U.S.C. § 522 and O.C.G.A. § 44-13-100(a)(2)(D) (2002) as to payments received from the debtor's deceased father's business interests was sustained because the trustee met the trustee's burden of proof per Fed. R. Bankr. P. 4003, to show that the payments, even if properly deemed, at their inception, to constitute "support" arising from a "domestic relations" order in effect when the debtor was 16 years old, such payments could no longer be considered "support" given that the debtor was 56 years old and the purported obligor was dead. Webster v. Aldrich (In re Aldrich), 403 Bankr. 766 (Bankr. M.D. Ga. 2009).

Venue.

- The bankruptcy court for the Northern District of Georgia retained venue, even though the debtor had moved to New Jersey, since the evidence relating to the bodily injury claims, as well as how the claims should be allocated, was present in the state of Georgia, where the accident occurred. In re Geis, 66 Bankr. 563 (Bankr. N.D. Ga. 1986).

Exemptions exceeding cap.

- Chapter 13 trustee's objection to the claimed exemptions in the debtor's checking account, savings account, and three future federal tax refunds was sustained where the amount exceeded the O.C.G.A. § 44-13-100(a)(6) cap by $50.00. In re Myles, Bankr. (Bankr. N.D. Ga. Mar. 8, 2006).

Pursuant to Fed. R. Bankr. P. 1009, a Chapter 7 debtor was not permitted to amend her claim of exemption under O.C.G.A. § 44-13-100(b)(6) after the Chapter 7 trustee had filed an objection and after certain property the debtor claimed was destroyed because to do so would have been inequitable and would have hindered the diligent administration of the bankruptcy estate by the trustee. In re Price, Bankr. (Bankr. N.D. Ga. Sept. 20, 2006).

When husband and wife debtors sought to exempt their income tax refunds, pursuant to O.C.G.A. § 44-13-100(a)(6), the procedure set forth in In re Crowson, 431 Bankr. 484, 489 (10th Cir. B.A.P. 2010) was to be followed. Each debtor was treated separately under 11 U.S.C. § 522(m), and Georgia law had no presumption of equal ownership of property between spouses under O.C.G.A. § 19-3-9. In re Evans, 449 Bankr. 827 (Bankr. N.D. Ga. 2010).

Household goods exemption under O.C.G.A.

§ 44-13-100(a)(4) limited by 11 U.S.C. § 544(f)(4)(A). - Although a debtor's two televisions and two computers both were household goods that could be exempted under O.C.G.A. § 44-13-100(a)(4), a creditor's lien could be avoided only against one television and one computer pursuant to 11 U.S.C. § 544(f)(4)(A). A lawnmower qualified as a household good under state law and federal law, but a camera, while a household good under state law, did not qualify under § 544(f)(4)(A). First Franklin Fin. v. Yawn (In re Yawn), Bankr. (Bankr. S.D. Ga. Feb. 5, 2010).

Amendment of exemption.

- Debtor was allowed to amend debtor's schedules, after a delay of more than one year, to claim an exemption in a checking account pursuant to O.C.G.A. § 44-13-100(a)(6) and which would have resulted in avoiding a judicial lien where the initial error in reporting the correct balance in the checking account was the attorney's fault, and thus there was no bad faith on the debtor's part; the creditor would not have been prejudiced as the debtor would have reaped the same benefit from amending the schedules that the debtor would have received had the debtor filed the amendments a year ago. In re Spice, Bankr. (Bankr. M.D. Ga. July 11, 2005).

Construction.

- Use of the word "may" in O.C.G.A. § 44-13-100 denotes the fact that when a debtor files bankruptcy the debtor is not required to exempt any property; however, once the debtor chooses to exempt property, the debtor is limited to exemptions set forth in O.C.G.A. § 44-13-100. When two statutes conflict, a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent. In re Sapp, Bankr. (Bankr. S.D. Ga. June 15, 2012).

Cited in Southall v. Blount, 182 Ga. 368, 185 S.E. 321 (1936); In re Vlahakis, 11 Bankr. 751 (Bankr. M.D. Ga. 1981); Jenkins v. Northwest Ga. Bank, 11 Bankr. 958 (Bankr. N.D. Ga. 1981); Anderson v. Burnham, 12 Bankr. 286 (Bankr. N.D. Ga. 1981); Safeway Fin. Co. v. Ward, 14 Bankr. 549 (S.D. Ga. 1981); In re Pietrocola, 14 Bankr. 719 (Bankr. N.D. Ga. 1981); Landmark Fin. Corp. v. Stewart, 163 Ga. App. 176, 293 S.E.2d 364 (1982); Maddox v. Southern Disct. Co., 713 F.2d 1526 (11th Cir. 1983); Dennis v. W.S. Badcock Corp., 31 Bankr. 128 (Bankr. M.D. Ga. 1983); Register v. Reese, 37 Bankr. 708 (Bankr. N.D. Ga. 1983); Schneider v. Fidelity Nat'l Bank, 37 Bankr. 747 (Bankr. N.D. Ga. 1984); Walker v. Guy F. Atkinson Co. (In re Sanders), 89 Bankr. 266 (Bankr. S.D. Ga. 1988); In re Bogert, 104 Bankr. 547 (Bankr. M.D. Ga. 1989); McGuire v. Landmark Fin. Servs., 132 Bankr. 807 (M.D. Ga. 1989); In re Thomsen, 181 Bankr. 1013 (Bankr. M.D. Ga. 1995).

Homestead exemption in former law.

- A taxpayer's assertion of the statutory homestead exemption contained in a former law would not prevent the Revenue Department from levying upon the taxpayer's personal automobile to satisfy delinquent state taxes. 1983 Op. Att'y Gen. No. 83-14.

Am. Jur. 2d.

- 40 Am. Jur. 2d, Homestead, § 150 et seq.

C.J.S.

- 40 C.J.S., Homesteads, § 170.

ALR.

- Jewelry and clothing as within debtor's exemptions under state statutes, 44 A.L.R.6th 481.

Construction and application of exemption for firearms under state law, 46 A.L.R.6th 401.

Constitutionality of state bankruptcy-specific exemptions under supremacy clause and bankruptcy clause of U.S. Constitution (U.S. Const., Art. VI, cl. 2 and Art. I, § 8, cl. 4), 77 A.L.R.6th 273.

Validity, construction, and application of state exemption statutes for proceeds of personal injury or wrongful death lawsuits, 99 A.L.R.6th 481.

Construction and application of state exemptions for health aids, 100 A.L.R.6th 251.

What constitutes state or local law that is applicable on date of filing of bankruptcy petition for purposes of applying 11 U.S.C.A. § 522(b)(3)(A) or its predecessor in opt-out states, 76 A.L.R. Fed. 2d 333.

Nonspousal inherited individual retirement account as exempt property in bankruptcy, 83 A.L.R. Fed. 2d 193.

Individual retirement accounts as exempt property in bankruptcy, 133 A.L.R. Fed. 1