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"Exempt Property" is property that the debtor is permitted to retain in bankruptcy. In a Chapter 7 case virtually all of the debtor's non-exempt property is subject to transfer to the trustee for the benefit of their creditors. The amount and type of exemptions available to the debtor will help determine whether it is appropriate to file a bankruptcy at all, and whether it should be under Chapter 7 or Chapter I 3. If the debtor has a significant amount of non-exempt property that could be lost in Chapter 7, it may be better to file under Chapter 13. Pursuant to recent changes in the law a New York State resident can use either the New York State Property Exemptions or the Federal Property Exemption. As a result if a debtor elects to use the New York State exemptions they are scattered throughout various New York statutes including the Debtor and Creditor Law §282-84 and the CPLR §5205 - 5206. The Federal Bankruptcy Exemptions can apply if the debtor chooses them. They are set forth in 11 USC 522(d). A debtor cannot mix and match state and federal exemptions, but they could amend their exemption schedule and change from one set of exemptions to the other if it turned out to be in their best interest to do so. BAPCPA sets forth additional requirements under section 522(b)(3)(A) for debtors that are required to claim exemptions under state law. The state exemption law that applies is determined by the state in which the debtor was domiciled for the last 730 days (2 years) immediately preceding the filing of the petition. If the debtor was not domiciled in a single state for the 730 day period, then the controlling law will be that of the state in which the debtor was domiciled for the 180 days immediately preceding the 730 day period or in which the debtor was domiciled for the longer portion of such 180 period than in any other place. If the effect of this is to render the debtor ineligible for any exemption, the debtor may then elect to exempt their property under the federal exemption scheme. Some of the primary New York property exemptions include: • Homestead Exemption - CPLR 5206(a). For debtors living in property in and around the New York City area (New York, Bronx, Kings, Queens, Richmond, Nassau, Suffolk, Westchester, Rockland and Putnam) the exemption amount is $204,825 per debtor in value above liens and encumbrances. The property must be owned and occupied as the principal residence of the debtor. For other counties around the state the exemption levels vary from $170,700 to $102,400 per debtor. The property can include: • Land with dwelling • Shares of stock in a cooperative apartment corporation • Unit in a condominium apartment • A mobile home |
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This information is general and is not legal advice. Amounts are adjusted periodically; consult an attorney about your case. |
New York Property Exemptions
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