Tenancy By Entireties Protection Different In Some Other States
Tenants by the entireties protection from creditors is not the same in all states. Some states do not recognize the concept of tenancy by entireties ownership between married couples. Some states recognize entireties ownership of real property but not personal property. A client today claimed that a parcel of real property he owned in another state was protected from his individual creditors because the deed said it was owned as tenants by entireties. When I researched the laws of the state in question I found that the state laws did recognize entireties ownership of real property. However, the ownership had asset protection consequences different from Florida law.
In Florida, tenancy by entireties real property and personal property is completely exempt from the creditors of either spouse. The laws of my client's state were different. The state's case law held that entireties property is exempt from forced sale, but that a creditor could still put a lien on the debtor's interest in the entireties property. When the entireties ownership terminates by divorce or by the spouse's death the creditor can foreclose its lien against the debtor's interest. Just because you own property in a state that recognizes entireties ownership do not assume that your property has the same degree of asset protection afforded to entireties assets by Florida's laws.
posted by Jonathan Alper, asset protection and bankruptcy attorney, Orlando, Florida
Hello,
Me and the wife own our primary homestead plus another investment property in Miami, FL. We also bought another second home in Lehigh, FL in which there are two banks/lien holders involved, we have not been able to make our payments since 08/08 to either one, and had the property listed since then as a short sale, but no success. The smaller lien holder has moved to sue us on the note, while the larger one (CHL) has the poperty in pre-foreclosure, pending an auction/sale date.
If the property is foreclosed on by CHL, they will probably only be able to sell to an investor for about $50K (we own $195K). Is it likely CHL will move to file a deficiency against our other rental in Miami? Is this typical of CHL nowadays, If they file a deficiency aginst us, and encumber/attach the rental property, are they likely to "execute the lien" and force sale? The probable equity on our rental might be $50-60K, not more, which wouldn't even satisfy their deficiency (assuming is sold for $50K). Will it be better to try and come to an agreement and settle with both lien holders/banks before they file suit in court.
Please give your opinion or suggestions on what to do, we really appreciate it.
Thank you.
If a creditor from out of state has a note that states in the note that the jurisdiction of the lender shall preside over disputes AND the creditor obtains a judgment against me and I reside in Florida.
Is the judgment collection process still governed by Florida laws?
Is the judgment collected under Florida Laws - even though the note litigation was governed by an outside forums states laws? I am a Florida citizen.
My property and assets I seek to protect are all in Florida and were set up almost two years ago under Joint Tenancy.
So my concern - is the fact that a judgment might come toward me individually preclude a creditor from outside of the state from reaching Jointly Owned property by me and my wife within Florida??
Thanks for your help.
Bryan