                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                 FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-15355                ELEVENTH CIRCUIT
                                                             MAY 10, 2011
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________
                                                               CLERK

                    D. C. Docket No. 08-60686-CV-AJ,
                      BKCY No. 07-17750-BKC-JK

DENISE J. DUMOULIN,


                                                   Debtor,
__________________________________________________________________
LESLIE S. OSBORNE,

                                                           Plaintiff-Appellant,

                                  versus

DENISE J. DUMOULIN,

                                                          Defendant-Appellee.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________
                              (May 10, 2011)

Before DUBINA, Chief Judge, TJOFLAT and KRAVITCH, Circuit Judges.
PER CURIAM:

      The question presented on appeal is whether a debtor who elects not to claim

a homestead exemption and indicates an intent to surrender the property is entitled

to the additional exemptions for personal property under Fla. Stat. § 222.25(4).

      Chapter 222 of the Florida Statutes addresses what real and personal

property a Florida resident may claim as exempt during certain legal proceedings

including bankruptcy. Section 222.25 exempts personal property other than a

homestead.1 In 2007, subparagraph 4 was added to permit a debtor to increase the

amount of personal exemptions “if the debtor does not claim or receive the benefits

of a homestead exemption.” Fla. Stat. § 222.25(4).

      In this case, Denise Dumoulin filed a voluntary Chapter 7 bankruptcy

petition. Although she initially filed a schedule of assets claiming an exemption

for her homestead along with a notice indicating her intent to surrender the

property, she later amended the schedule of assets to remove the homestead

exemption, indicate her intent to surrender the property, and seek additional

personal property exemptions under Fla. Stat. § 222.25(4). Trustee Leslie Osborne

objected to the additional exemptions on the ground that Dumoulin was not

entitled to claim exemptions under § 222.25(4).



      1
          Generally, homestead exemptions arise under the Florida Constitution, Art. X, § 4.

                                                2
      The bankruptcy court overruled the objection, concluding Dumoulin had not

“received the benefit” of the homestead exemption under § 222.25(4) because she

amended the schedule of assets to remove the homestead exemption and had

indicated her intent to surrender the property, and thus she was entitled to

additional exemptions.

      The trustee appealed to the district court, which affirmed the bankruptcy

court’s order overruling the objection to the claim of exemption, and the trustee

appealed.2 Because the Florida courts were split on the interpretation of

§ 222.25(4), we certified the controlling question to the Florida Supreme Court,

which rephrased the question as follows:

      Whether for the purpose of the statutory personal property exemption
      in section 222.25(4), a debtor in bankruptcy receives the benefits of
      Florida’s article X, section 4, constitutional homestead exemption
      where the debtor owns homestead property but does not claim the
      homestead exemption in bankruptcy and the trustee’s administration
      of the property is not otherwise impeded by the existence of the
      homestead exemption.

Osborne v. Dumoulin, – So.3d –, 2011 WL 320986 (Fla. Feb. 3, 2011).

      II. Standard of Review

      In the bankruptcy context, we sit as a “second court of review” and thus

“examine[] independently the factual and legal determinations of the bankruptcy


      2
        We note that the debtor is now deceased. See Osborne, 2011 WL 320986, at *11 n.1.
Under Bankruptcy Rule 1016, the death of the debtor does not abate a Chapter 7 petition.

                                            3
court and employ[] the same standards of review as the district court.” In re

Optical Technologies, Inc., 425 F.3d 1294, 1299-1300 (11th Cir. 2005); In re Issac

Leaseco, Inc., 389 F.3d 1205, 1209 (11th Cir. 2004) (quotation marks and citation

omitted). Generally, we review legal conclusions by either the bankruptcy court or

the district court de novo.3 In re Financial Federated Title & Trust, Inc., 309 F.3d

1325, 1328-29 (11th Cir. 2002).

       III. Analysis

       Section 222.25 exempts personal property other than a homestead, but

allows for an expanded personal property exemption to qualified debtors, i.e., those

who did not claim any homestead exemption. Fla. Stat. § 222.25(4). “The intent

of the statute appears to be to give a debtor who lacks homestead protections some

extra personal exemptions.” In re Rogers, 396 B.R. 100, 102 (M.D. Fla. 2008)

       Under the terms of the statute, the extra personal exemptions are not

available to debtors who either (1) claim a homestead exemption under the Florida

Constitution, or (2) receive the benefits of a homestead exemption under the

Florida Constitution. Id. at 102-03. The second clause applies to debtors who do

not affirmatively claim a homestead exemption. The statute prevents such debtors



       3
          Although we generally review factual findings for clear error, In re Financial Federated
Title & Trust, Inc., 309 F.3d 1325, 1329 (11th Cir. 2002), in this case the parties stipulated to the
facts and the bankruptcy court made no factual findings.

                                                 4
from claiming the additional personal property exemption if they indirectly

“receive the benefits of” the homestead exemption. Id. Thus, the issue is what

constitutes “receiving the benefits” of the homestead exemption.

       The trustee argues that both the terms “claim” and “receive the benefits” in

§ 222.25(4) must be given meaning. According to the trustee, every person who

owns a homestead receives the benefits of that homestead and would be precluded

from claiming the exemption. The trustee further explains that the definition of

benefit includes those interests which are never realized.4

       The Florida Supreme Court has read the personal property exemption

liberally. Osborne v. Dumoulin, __ So.3d __ 2011 WL 320986, at *7 (Fla. Feb. 3,

2011). Benefits, according to the state supreme court, are the protection of the

homestead from creditors. Id. at *8. To “claim or receive” the benefits within the

meaning of the § 222.25(4) gives the debtor the option to claim the homestead

exemption. When the debtor elects not to do so, thus surrendering the home to the




       4
           The trustee also argues that the court ignored the bankruptcy rules limiting the time in
which a debtor can amend the schedule of assets or the statement of intention. Courts have no
“discretion to deny amendments to claims of exemption, unless a showing of bad faith by the debtor
or prejudice to a creditor is made by clear and convincing evidence.” In re Jordan, 332 B.R. 472,
475 (Bankr. M.D. Fla. 2005) (citing Doan v. Hudgins (In re Doan), 672 F.2d 831, 833 (11th Cir.
1982); In re Talmo, 185 B.R. 637, 645 (Bankr. S.D. Fla. 1995)). Here, there is no claim that the
debtor acted in bad faith in amending her schedules or that any creditor has been prejudiced. Thus,
trustee’s argument regarding the timeliness of the amended schedules is without merit.

                                                5
bankruptcy trustee, the debtor has lost the benefits of the homestead exemption.5

Id. at *9.

       In addressing our certified question, the Florida Supreme Court has held that

       where a debtor in bankruptcy elects not to claim the constitutional
       homestead exemption and the trustee’s administration of the
       bankruptcy estate is not otherwise obstructed by the existence of the
       homestead exemption, the debtor does not receive the benefits of the
       homestead exemption and may claim the section 222.25(4) personal
       property exemption of $4000.

Id. at *11. Accordingly, because the debtor in this case amended her election and

did not take the homestead exemption and indicated her intent to surrender the

property, she was entitled to the personal property exemption. We therefore affirm

the bankruptcy court.

       AFFIRMED.




       5
          The debtor need not actually abandon the homestead under this analysis. Osborne, 2011
WL 320986, at *9. But the state supreme court noted that the analysis depended on the facts of the
case and conceded that there could be circumstances in which a debtor elected the personal property
exemption instead of the homestead but continued to receive the benefits of the homestead
exemption. For example, if a husband filed for bankruptcy individually while the nondebtor spouse
retained the homestead exemption. Id. at *10. That is not the factual scenario in this case.

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