Utah has opted out of the federal exemptions for all debtors,
regardless of residency. “No individual may exempt from the
property of the estate in any bankruptcy proceeding the
property specified in Subsection (d) of Section 522 of the
Bankruptcy Reform Act (Public Law 95-598), except as may
otherwise be expressly permitted under this chapter.” Utah
Code Ann. § 78-23-15.
It might be argued that nonresident debtors are entitled to the
federal exemptions under the saving provision because they
cannot use the state homestead exemption on property
outside the state. The saving provision in 11 USC § 522(b)
states, “If the effect of the domiciliary requirement under
subparagraph (A) is to render the debtor ineligible for any
exemption, the debtor may elect to exempt property that is
specified under subsection (d).” However, the court in In re
Katseanes, 2007 WL 2962637 (Bankr.D.Idaho 2007) held that
although the nonresident debtors could not use Utah’s
homestead exemption, they could not claim the federal
exemptions under the saving provision because "any" in that
provision requires that no exemptions be available before the
federal exemptions can be used. Nearly all cases in other
jurisdictions that have allowed use of the federal exemptions
under the savings provision have done so in cases where
none of the state exemptions were available to the debtor. In
re West, 352 B.R. 905 (Bankr.M.D.Fla.2006) (because debtor
was not resident of Indiana and its exemptions were limited to
residents, its exemptions were not available to her and debtor
was eligible for the federal exemptions under the saving
provision); In re Jewell, 2006 WL 2258363 (Bankr.W.D.N.Y.
2006) (debtors, who were not residents of Colorado on date of
filing were not eligible for its exemptions because its
exemptions were limited to residents but debtors were eligible
for federal exemptions under the saving provision); In re
Crandall, 2006 WL 2051367 (Bankr.M.D.Fla.2006) (because
debtor was not domiciled in New York on the date of filing, and
its exemptions were limited to domiciliaries, debtor was eligible
for federal exemptions under the saving provision); In re
Underwood, 342 B.R. 358 (Bankr.N.D.Fla.2006) (savings
provision would entitle debtor to federal exemptions if Colorado’
s opt-out applied to her); In re Robedee, 2007 WL 1576139
(Bankr.S.D.Fla.2007) (if applicable state provides no
exemptions to nonresidents, they may use the federal
exemptions under the saving provision); In re Fabert, 2008 WL
104104 (Bankr.D.Kan.2008) (debtor fits squarely within the
saving provision because applicable state denies debtor its
exemptions). However, the Oregon court in In re Tate, 2007
WL 81835 (Bankr.D.Or.2007), did allow debtors to substitute
the federal homestead exemption for that of Texas because
the latter was not available outside that state. Also see In re
Williams, --- B.R. ---, 2007 WL 1520998 (Bankr.W.D.Ark.2007)
in which the court apparently interprets “any” as not meaning
“all.” So, there is disagreement over the meaning of “any” in
the saving provision.