Summary:
Judge Pamela McAfee overruled a Chapter 7 trustee’s objection to a North Carolina debtor’s homestead exemption claimed in real estate located not in Wake County, but in Corentyne Berbice, Guyana. The case highlights two recurring issues in exemption law:
(1) whether a spouse living abroad may qualify as a “dependent” for purposes of N.C.G.S. § 1C-1601(a)(1), and
(2) whether North Carolina’s homestead exemption applies extraterritorially.
The debtor, Natoya Ross-DeSantos, filed Chapter 7 in the Eastern District of North Carolina, claiming a $30,000 homestead exemption in her interest in a property in Guyana, which she jointly owns with her non-filing spouse. While she lives in North Carolina as a public school teacher on a J-1 visa, her spouse and her mother (who pays the mortgage) reside in the Guyanese home, along with her minor nephew. The trustee objected, arguing (1) the spouse was not a “dependent” and (2) the exemption could not apply to property outside North Carolina.
The court overruled the two bases for trustee’s objection, holding:
Dependency Met – The debtor’s uncontroverted testimony that she sends financial support “when she can,” and that her husband is unemployed and living in the home due to medical issues, was sufficient to show “actual substantial dependence,” adopting the standard for a "dependent spouse" as articulated in Suggs, Preston, and under N.C.G.S. § 50-16.1A(2). Dependency was determined based on actual financial and emotional support as of the petition date, not mere technical definitions or speculative future plans.
Extraterritorial Application Allowed – The court found no language in § 1C-1601 limiting the exemption to in-state property and emphasized the statutory mandate to interpret exemptions liberally in favor of the debtor. Since the debtor resides in North Carolina and is the one claiming the exemption, the location of the property abroad was not disqualifying. Notably, the court cited Crawford and Davila as examples where the location of the homestead outside North Carolina had not precluded application of the state’s exemption.
Commentary:
Excellent job by Phillip Sasser, particularly in the face of John Bircher's solid, but fair and respectful, objection.
This decision is a well-grounded affirmation of the debtor-protective policies behind North Carolina’s exemption laws and demonstrates the flexibility bankruptcy courts maintain in evaluating real-life family and financial dynamics. In substance, Judge McAfee recognized that modern households — especially those involving immigration, work visas, and international families — may not conform neatly to the traditional “white picket fence” model. The court took a pragmatic approach: focusing not on the theoretical legal domicile or the ZIP code of the property, but on the reality of who lived there and who depended on whom.
Dependency Doesn't Require Formal Support Agreements – Informal but credible testimony about support, even irregular remittances and non-monetary arrangements, may suffice to establish a spouse as a dependent for exemption purposes.
Having found most easily that Mr. Ross-DeSantos met the statutory definition of a dependent spouse, the court did not directly address whether Ms. Ross-DeSantos' mother and/or minor nephew were also dependents. That notwithstanding, it would seem that the standard for other asserted dependents should be evaluated under the same standard as anyone "who is actually substantially dependent ... for his or her maintenance and support or is substantially in need of maintenance and support...." (Emphasis added.) This should not require finding that the person meets the higher IRS standard for a dependent but instead that the person is substantially dependent on support and needs that support. Allowing them to live in the house could by itself be sufficient to show the support, although the debtor would need to show the need for that support.
No Territorial Limitation in § 1C-1601(a)(1) – Until the North Carolina appellate courts say otherwise, nothing in the statute prevents the homestead exemption from being claimed in property outside the state, provided the debtor resides in North Carolina.
Anticipate Equity Issues – Though the court noted the trustee's uncertainty about whether the Republic Bank of Guyana held a perfected lien, the trustee wisely sought a ruling on the exemption issue first. Practitioners should similarly bifurcate legal questions where valuation or enforceability is uncertain.
In re Ross-DeSantos will likely become a citation staple for North Carolina debtors and their counsel facing objections based on “residence” and “dependency,” especially in cross-border or nontraditional family situations. It serves as a reminder that bankruptcy courts, even while operating under rigid statutes, can and do account for the lived realities of their debtors.
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