|
U.S. Code as of:
01/19/04
Section 522. Exemptions
(a) In this section -
(1) "dependent" includes spouse, whether or not actually
dependent; and
(2) "value" means fair market value as of the date of the
filing of the petition or, with respect to property that becomes
property of the estate after such date, as of the date such
property becomes property of the estate.
(b) Notwithstanding section 541 of this title, an individual
debtor may exempt from property of the estate the property listed
in either paragraph (1) or, in the alternative, paragraph (2) of
this subsection. In joint cases filed under section 302 of this
title and individual cases filed under section 301 or 303 of this
title by or against debtors who are husband and wife, and whose
estates are ordered to be jointly administered under Rule 1015(b)
of the Federal Rules of Bankruptcy Procedure, one debtor may not
elect to exempt property listed in paragraph (1) and the other
debtor elect to exempt property listed in paragraph (2) of this
subsection. If the parties cannot agree on the alternative to be
elected, they shall be deemed to elect paragraph (1), where such
election is permitted under the law of the jurisdiction where the
case is filed. Such property is -
(1) property that is specified under subsection (d) of this
section, unless the State law that is applicable to the debtor
under paragraph (2)(A) of this subsection specifically does not
so authorize; or, in the alternative,
(2)(A) any property that is exempt under Federal law, other
than subsection (d) of this section, or State or local law that
is applicable on the date of the filing of the petition at the
place in which the debtor's domicile has been located for the 180
days immediately preceding the date of the filing of the
petition, or for a longer portion of such 180-day period than in
any other place; and
(B) any interest in property in which the debtor had,
immediately before the commencement of the case, an interest as a
tenant by the entirety or joint tenant to the extent that such
interest as a tenant by the entirety or joint tenant is exempt
from process under applicable nonbankruptcy law.
(c) Unless the case is dismissed, property exempted under this
section is not liable during or after the case for any debt of the
debtor that arose, or that is determined under section 502 of this
title as if such debt had arisen, before the commencement of the
case, except -
(1) a debt of a kind specified in section 523(a)(1) or
523(a)(5) of this title;
(2) a debt secured by a lien that is -
(A)(i) not avoided under subsection (f) or (g) of this
section or under section 544, 545, 547, 548, 549, or 724(a) of
this title; and
(ii) not void under section 506(d) of this title; or
(B) a tax lien, notice of which is properly filed;
(3) a debt of a kind specified in section 523(a)(4) or
523(a)(6) of this title owed by an institution-affiliated party
of an insured depository institution to a Federal depository
institutions regulatory agency acting in its capacity as
conservator, receiver, or liquidating agent for such institution;
or
(4) a debt in connection with fraud in the obtaining or
providing of any scholarship, grant, loan, tuition, discount,
award, or other financial assistance for purposes of financing an
education at an institution of higher education (as that term is
defined in section 101 of the Higher Education Act of 1965 (20
U.S.C. 1001)).
(d) The following property may be exempted under subsection
(b)(1) of this section:
(1) The debtor's aggregate interest, not to exceed $15,000 in
value, in real property or personal property that the debtor or a
dependent of the debtor uses as a residence, in a cooperative
that owns property that the debtor or a dependent of the debtor
uses as a residence, or in a burial plot for the debtor or a
dependent of the debtor.
(2) The debtor's interest, not to exceed $2,400 in value, in
one motor vehicle.
(3) The debtor's interest, not to exceed $400 in value in any
particular item or $8,000 in aggregate value, in household
furnishings, household goods, wearing apparel, appliances, books,
animals, crops, or musical instruments, that are held primarily
for the personal, family, or household use of the debtor or a
dependent of the debtor.
(4) The debtor's aggregate interest, not to exceed $1,000 in
value, in jewelry held primarily for the personal, family, or
household use of the debtor or a dependent of the debtor.
(5) The debtor's aggregate interest in any property, not to
exceed in value $800 plus up to $7,500 of any unused amount of
the exemption provided under paragraph (1) of this subsection.
(6) The debtor's aggregate interest, not to exceed $1,500 in
value, in any implements, professional books, or tools, of the
trade of the debtor or the trade of a dependent of the debtor.
(7) Any unmatured life insurance contract owned by the debtor,
other than a credit life insurance contract.
(8) The debtor's aggregate interest, not to exceed in value
$8,000 less any amount of property of the estate transferred in
the manner specified in section 542(d) of this title, in any
accrued dividend or interest under, or loan value of, any
unmatured life insurance contract owned by the debtor under which
the insured is the debtor or an individual of whom the debtor is
a dependent.
(9) Professionally prescribed health aids for the debtor or a
dependent of the debtor.
(10) The debtor's right to receive -
(A) a social security benefit, unemployment compensation, or
a local public assistance benefit;
(B) a veterans' benefit;
(C) a disability, illness, or unemployment benefit;
(D) alimony, support, or separate maintenance, to the extent
reasonably necessary for the support of the debtor and any
dependent of the debtor;
(E) a payment under a stock bonus, pension, profitsharing,
annuity, or similar plan or contract on account of illness,
disability, death, age, or length of service, to the extent
reasonably necessary for the support of the debtor and any
dependent of the debtor, unless -
(i) such plan or contract was established by or under the
auspices of an insider that employed the debtor at the time
the debtor's rights under such plan or contract arose;
(ii) such payment is on account of age or length of
service; and
(iii) such plan or contract does not qualify under section
401(a), 403(a), 403(b), or 408 of the Internal Revenue Code
of 1986.
(11) The debtor's right to receive, or property that is
traceable to -
(A) an award under a crime victim's reparation law;
(B) a payment on account of the wrongful death of an
individual of whom the debtor was a dependent, to the extent
reasonably necessary for the support of the debtor and any
dependent of the debtor;
(C) a payment under a life insurance contract that insured
the life of an individual of whom the debtor was a dependent on
the date of such individual's death, to the extent reasonably
necessary for the support of the debtor and any dependent of
the debtor;
(D) a payment, not to exceed $15,000, on account of personal
bodily injury, not including pain and suffering or compensation
for actual pecuniary loss, of the debtor or an individual of
whom the debtor is a dependent; or
(E) a payment in compensation of loss of future earnings of
the debtor or an individual of whom the debtor is or was a
dependent, to the extent reasonably necessary for the support
of the debtor and any dependent of the debtor.
(e) A waiver of an exemption executed in favor of a creditor that
holds an unsecured claim against the debtor is unenforceable in a
case under this title with respect to such claim against property
that the debtor may exempt under subsection (b) of this section. A
waiver by the debtor of a power under subsection (f) or (h) of this
section to avoid a transfer, under subsection (g) or (i) of this
section to exempt property, or under subsection (i) of this section
to recover property or to preserve a transfer, is unenforceable in
a case under this title.
(f)(1) Notwithstanding any waiver of exemptions but subject to
paragraph (3), the debtor may avoid the fixing of a lien on an
interest of the debtor in property to the extent that such lien
impairs an exemption to which the debtor would have been entitled
under subsection (b) of this section, if such lien is -
(A) a judicial lien, other than a judicial lien that secures a
debt -
(i) to a spouse, former spouse, or child of the debtor, for
alimony to, maintenance for, or support of such spouse or
child, in connection with a separation agreement, divorce
decree or other order of a court of record, determination made
in accordance with State or territorial law by a governmental
unit, or property settlement agreement; and
(ii) to the extent that such debt -
(I) is not assigned to another entity, voluntarily, by
operation of law, or otherwise; and
(II) includes a liability designated as alimony,
maintenance, or support, unless such liability is actually in
the nature of alimony, maintenance or support.; (!1) or
(B) a nonpossessory, nonpurchase-money security interest in any
-
(i) household furnishings, household goods, wearing apparel,
appliances, books, animals, crops, musical instruments, or
jewelry that are held primarily for the personal, family, or
household use of the debtor or a dependent of the debtor;
(ii) implements, professional books, or tools, of the trade
of the debtor or the trade of a dependent of the debtor; or
(iii) professionally prescribed health aids for the debtor or
a dependent of the debtor.
(2)(A) For the purposes of this subsection, a lien shall be
considered to impair an exemption to the extent that the sum of -
(i) the lien;
(ii) all other liens on the property; and
(iii) the amount of the exemption that the debtor could claim
if there were no liens on the property;
exceeds the value that the debtor's interest in the property would
have in the absence of any liens.
(B) In the case of a property subject to more than 1 lien, a lien
that has been avoided shall not be considered in making the
calculation under subparagraph (A) with respect to other liens.
(C) This paragraph shall not apply with respect to a judgment
arising out of a mortgage foreclosure.
(3) In a case in which State law that is applicable to the debtor
-
(A) permits a person to voluntarily waive a right to claim
exemptions under subsection (d) or prohibits a debtor from
claiming exemptions under subsection (d); and
(B) either permits the debtor to claim exemptions under State
law without limitation in amount, except to the extent that the
debtor has permitted the fixing of a consensual lien on any
property or prohibits avoidance of a consensual lien on property
otherwise eligible to be claimed as exempt property;
the debtor may not avoid the fixing of a lien on an interest of the
debtor or a dependent of the debtor in property if the lien is a
nonpossessory, nonpurchase-money security interest in implements,
professional books, or tools of the trade of the debtor or a
dependent of the debtor or farm animals or crops of the debtor or a
dependent of the debtor to the extent the value of such implements,
professional books, tools of the trade, animals, and crops exceeds
$5,000.
(g) Notwithstanding sections 550 and 551 of this title, the
debtor may exempt under subsection (b) of this section property
that the trustee recovers under section 510(c)(2), 542, 543, 550,
551, or 553 of this title, to the extent that the debtor could have
exempted such property under subsection (b) of this section if such
property had not been transferred, if -
(1)(A) such transfer was not a voluntary transfer of such
property by the debtor; and
(B) the debtor did not conceal such property; or
(2) the debtor could have avoided such transfer under
subsection (f)(2) of this section.
(h) The debtor may avoid a transfer of property of the debtor or
recover a setoff to the extent that the debtor could have exempted
such property under subsection (g)(1) of this section if the
trustee had avoided such transfer, if -
(1) such transfer is avoidable by the trustee under section
544, 545, 547, 548, 549, or 724(a) of this title or recoverable
by the trustee under section 553 of this title; and
(2) the trustee does not attempt to avoid such transfer.
(i)(1) If the debtor avoids a transfer or recovers a setoff under
subsection (f) or (h) of this section, the debtor may recover in
the manner prescribed by, and subject to the limitations of,
section 550 of this title, the same as if the trustee had avoided
such transfer, and may exempt any property so recovered under
subsection (b) of this section.
(2) Notwithstanding section 551 of this title, a transfer avoided
under section 544, 545, 547, 548, 549, or 724(a) of this title,
under subsection (f) or (h) of this section, or property recovered
under section 553 of this title, may be preserved for the benefit
of the debtor to the extent that the debtor may exempt such
property under subsection (g) of this section or paragraph (1) of
this subsection.
(j) Notwithstanding subsections (g) and (i) of this section, the
debtor may exempt a particular kind of property under subsections
(g) and (i) of this section only to the extent that the debtor has
exempted less property in value of such kind than that to which the
debtor is entitled under subsection (b) of this section.
(k) Property that the debtor exempts under this section is not
liable for payment of any administrative expense except -
(1) the aliquot share of the costs and expenses of avoiding a
transfer of property that the debtor exempts under subsection (g)
of this section, or of recovery of such property, that is
attributable to the value of the portion of such property
exempted in relation to the value of the property recovered; and
(2) any costs and expenses of avoiding a transfer under
subsection (f) or (h) of this section, or of recovery of property
under subsection (i)(1) of this section, that the debtor has not
paid.
(l) The debtor shall file a list of property that the debtor
claims as exempt under subsection (b) of this section. If the
debtor does not file such a list, a dependent of the debtor may
file such a list, or may claim property as exempt from property of
the estate on behalf of the debtor. Unless a party in interest
objects, the property claimed as exempt on such list is exempt.
(m) Subject to the limitation in subsection (b), this section
shall apply separately with respect to each debtor in a joint case.
|
|