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).”
There is conflict among the courts over the meaning of
"any" in the saving provision. 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.”