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cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience:  Bankruptcy professor.
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What is considered abandonment when it comes to the Homestead

Resolved Question:

What is considered abandonment when it comes to the Homestead Act in Massachusetts? My in-laws are filing chapter 7 and the trustee is challenging the homestead. They plan on renting the property for a few weeks this summer as a vacation home. Their lawyer says the trustee is just posturing, but of course they are concerned.
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  cfortunato replied 5 years ago.

Hi JACustomer,

1) Have your in-laws filed for Homestead protection for the house separately from the Bankruptcy case?

2) How much equity does the home have? (Equity = current market value minus the balance - if any - of any mortgage(s) on the home.)

Customer: replied 5 years ago.
Yes, the homestead was filed pre-bk.

There is about $300-400k in equity. The homestead should protect $500k.

Expert:  cfortunato replied 5 years ago.

Then is the trustee challenging the homestead exemption because your in-laws rent out their home for a few weeks in the summer, and that therefore the property is commercial rather than residential?

Customer: replied 5 years ago.
Yes, and they receive mail elsewhere. One of the creditors hired a PI to try to prove the house is not their primary residence. It was his ex-business partner and my in-laws used to have a winter home in Naples. They no longer own it, and are divorcing. So they both avoid the family home if they think the other may be there. Basically the trustee is piggy backing the creditors objection. The mail goes elsewhere, they said at the 341 they would rent in the summer to help pay bills, and the day the PI took pics nobody was there.
I assume the summer rental is what is triggering the trustee's objection
Expert:  cfortunato replied 5 years ago.

The primary residence is the place where the debtor was at for 183 days out of the last 365 days. If the debtor was not in any one place for at least 183 days, then the primary residence can be the place where the debtor was for more time than any other place in the past 365 days.

If the trustee can prove to a Bankruptcy judge that the home is not the primary residence for both of them, it will be hard to get the home abandoned.

Some of the ways to prove the length of time spent at the home is with cell phone bills, credit card bills, bank statements, and anything else that can be used to help determine if the debtors were in their home for the requisite amount of time.

Having gone to the house on one or two occasions when they were not there proves nothing, and the same is true for their renting the place for a few weeks, as there is no requirement that a primary residence not be rented out.


I think this is what you wanted to know. If not, please let me know.
Thank you!

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