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Tina
Tina, Lawyer
Category: Real Estate Law
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Experience:  16 years of legal experience including real estate law.
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If not filing for Bankruptcy can you use the benefit of Homestead

Resolved Question:

If not filing for Bankruptcy can you use the benefit of Homestead Exemption in trying to keep your home?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Tina replied 1 year ago.
Hello again and thank you for requesting me.

For what purpose would you be claiming the homestead exemption, to try to prevent a judgment creditor from selling your property to satisfy the debt, or are you referring to a secured creditor such as a mortgage holder on the property? The property is located in FL correct?

I look forward to assisting you as soon as I have received this information. Thank you.

Customer: replied 1 year ago.

It is not a secured lender but a judgment creditor and the property is not in Florida -- in NY.

Expert:  Tina replied 1 year ago.
Thank you for clarifying that for me, Allen.

Under the NY civil code, up to $50,000 in equity can be protected by a homestead exemption against a judgment creditor typically.

Here is the applicable language of the code:

(a) Exemption of homestead. Property of one of the following types, not exceeding fifty thousand dollars in value above liens and encumbrances, owned and occupied as a principal residence, is exempt from application to the satisfaction of a money judgment, unless the judgment was recovered wholly for the purchase price thereof: 1. a lot of land with a dwelling thereon, 2. shares of stock in a cooperative apartment corporation, 3. units of a condominium apartment, or 4. a mobile home.

Here is a link to the code:

http://codes.lp.findlaw.com/nycode/CVP/52/5206

So if there is not more than $50k in equity in the homestead, the exemption would typically protect it against seizure by a judgment creditor.

I hope this helps clarify the situation for you. Please remember to rate my service once you have all the information you need so I will be compensated for my time from the deposit you posted with this website. If you have any other questions, please ask me – I’ll be happy to respond. Thank you!

Tina

Customer: replied 1 year ago.

Is it $150k per person in bankruptcy? Does the $50 apply outside of bankruptcy and is that person?

Expert:  Tina replied 1 year ago.
There are typically two different types of homestead exemptions, the bankruptcy exemption would only apply if one were to file for bankruptcy protection. The other, which is the one you were asking about and I cited for you, applies to money judgments even if the individual does not file for bankruptcy protection.

However, I did find that Section 5206 has been recently amended to increase the homestead exemptions as follows:

Regarding real property, New York’s $10,000 homestead exemptions stood the same from 1997 until 2005, when it was raised to $50,000. The homestead exemption has been significantly amended in this new law, not only increasing the amount but also establishing a step-approach depending on the location of the property. The homestead exemption is what can be claimed on the equity in the home, above what is owed for mortgage or other liens. The new homestead exemptions are as follows:

  • $150,000 for NYC counties, Suffolk, Nassau, Putnam, Rockland, and Westchester counties,
  • $125,000 for Albany, Columbia, Dutchess, Orange, Saratoga, and Ulster counties, and
  • $75,000 for all other counties

Here is a link which summarizes the new amounts, but they apply to a single property and whether the property is owned by one or multiple persons would typically be irrelevant.

 

http://www.empirejustice.org/issue-areas/consumer/other-consumer-issues/articles/new-york-states-exemptions.html

Customer: replied 1 year ago.

when your in the New York area is it 150,000 per individual which would total 300,000.00 for me and my wife or not?

Expert:  Tina replied 1 year ago.
No, it is not per individual, there is one exemption for the homestead permitted.
Tina, Lawyer
Category: Real Estate Law
Satisfied Customers: 32122
Experience: 16 years of legal experience including real estate law.
Tina and 5 other Real Estate Law Specialists are ready to help you
Expert:  Tina replied 1 year ago.
You are very welcome and thank you again for the positive rating and bonus. Have a wonderful weekend.

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