                                                                  [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                  FILED
                                                      U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                              No. 98-5626                    11/19/99
                         Non-Argument Calendar            THOMAS K. KAHN
                                                              CLERK
                   D. C. Docket No. 97-08500-CV-ASG

IN RE:

     WILLIAM FREDERICK COLWELL and
     RUBY COLWELL,
                                                                      Debtors.

WILLIAM FREDERICK COLWELL,
RUBY COLWELL,
                                                          Plaintiffs-Appellees,

                                  versus

ROYAL INTERNATIONAL TRADING
CORPORATION,

                                                         Defendant-Appellant.



                Appeal from the United States District Court
                    for the Southern District of Florida

                           (November 19, 1999)

Before ANDERSON, Chief Judge, DUBINA, Circuit Judge and GODBOLD, Senior
Circuit Judge.

PER CURIAM:
      The Colwells jointly filed a Chapter 7 bankruptcy case. Although Florida law

does not recognize legal separations the Colwells had been separated for 3 ½ years

before filing the petition. Prior to the bankruptcy petition each had acquired a separate

home and had obtained a separate homestead exemption on that home.

      Florida has chosen to opt out of federal exemptions and elected to apply its

own. 11 U.S.C. § 522 (b)(1); Fla. Stat. §§ 222.21 and 222.20; 3 Collier on

Bankruptcy, § 522.08 at 522-44, n. 8a. The Colwells asserted to the bankruptcy court

that Article X, § 4 of the Florida constitution required that they be granted separate

homestead exemptions. Royal International excepted. In 1998 the bankruptcy court

sustained the exception, stating that it could find no case law to support dual

homestead exemptions for married individuals residing on two distinct, non-

contiguous parcels of property. See In re Colwell, 208 B.R. 85 (Bankr. S. D. Fla.

1997). The Colwells appealed to the United States District Court, S.D. Florida, which

reversed the bankruptcy court. Royal appealed to the Eleventh Circuit.

      Pursuant to Erie Railway the bankruptcy court must interpret and apply the

Florida exemption law in the same manner as a Florida state court. Florida state court

decisions establish that as a matter of the public policy of the state, giving a liberal

construction as required, a homestead exemption can be established to each of two

people who are married but legitimately living apart in separate residences, if they

otherwise meet the requirements of the exception, and, by “legitimately” they mean

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that there is no fraudulent or otherwise egregious act by the beneficiary of the

exemption. Law v. Law 738 So.2d 522 (Fla. App. 4th Dist. Aug. 19, 1999) ; In re

Englander, 95 F.3d 1028 (11th Cir. 1996) (closely analyzing Florida law and using

Florida state court cases to determine the applicability of the Florida homestead

exemption); Myers v. Leahrer, 671 So.2d 864, 866 (Fla. App. 4th Dist. 1996); Public

Health Trust of Dade County v. Lopez, 531 So.2d 946, 948 (Fla. 1988); Isaacson v.

Isaacson, 504 So.2d 1309 (Fla. App. 1st Dist. 1987); see also Radin v. Radin, 593

So.2d 1231 (Fla. App. 3d Dist. 1992). There is a presumption that the exemption

applies. See Snyder v. Davis, 699 So.2d 999, 1002 (Fla. 1997). The district court

concluded that the living arrangements of the Colwells were not shown to be the

subject of fraud and that Royal had not brought forth evidence to overcome the

presumption favoring the exception. There was no error.

      AFFIRMED.




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