Date of Decision:
July 3, 2013
Whether the debtors, who filed their petition in South Dakota, may claim property exempt under the federal exemption statutes of § 522(b)(2) and (d) where Nebraska exemption laws applied pursuant to § 522(b)(3)(A), but where Nebraska's "opt out" statute applied only to petitioners who filed in Nebraska?
Yes, the debtors could utilize the federal exemptions provided by § 522(b)(2) and (d). Pursuant to § 522(b)(2) and Neb. Rev. Stat. § 25-15,105, Nebraska determined federal exemptions should not be available when a bankruptcy petition is filed in Nebraska. Since the debtors filed in South Dakota, the opt out statute did not apply to them, and they were thus free to use the federal exemptions. The original issues raised by the trustee regarding the application of the "hanging paragraph" of § 522(b)(3) to Nebraska's exemption statutes were not reached..
Full Bankruptcy Court Decision: