Colorado § 13-54-107 - Exemptions in bankruptcy.

§ 13-54-107. Exemptions in bankruptcy.

The exemptions provided in section 522 (d) of the federal bankruptcy code of 1978, title 11 of the United States Code, as amended, are denied to residents of this state. Exemptions authorized to be claimed by residents of this state shall be limited to those exemptions expressly provided by the statutes of this state.

Source: L. 81: Entire section added, p. 894, § 3, effective July 1.

ANNOTATION

Law reviews. For article, "Legislative Update", see 11 Colo. Law. 2142 (1982). For article, "Secured Transactions — Part II: Default, Foreclosure and Bankruptcy", see 12 Colo. Law. 13 (1983). For article, "Over the Hill to the Poor House — The Failure of Section 522 Bankruptcy Exemptions Under the Bankruptcy Reform Act of 1978", see 61 Den. L.J. 705 (1984). For article, "Homestead and Bankruptcy in Colorado and Elsewhere", see 56 U. Colo. L. Rev. 175 (1985). For article, "Bankruptcy Law", which discusses Tenth Circuit decisions dealing with constitutionality of the Colorado bankruptcy exemptions, see 62 Den. U. L. Rev. 53 (1985). For article, "An Individual's Retirement Benefits Under the Bankruptcy Code", see 16 Colo. Law. 1211 (1987). For article, "Perils of Pre-Bankruptcy Planning: Transfers, Exemptions and Taxes", see 17 Colo. Law. 1513 (1988). For a discussion of Tenth Circuit decisions dealing with bankruptcy, see 66 Den. U. L. Rev. 683 (1989). For article, "Rights of the Debtor and Creditor to Retirement Plan Benefits", see 20 Colo. Law. 199 (1991).

Constitutionality. This section does not violate the uniformity clause of § 8 of art. I, U.S. Const., or the supremacy clause, art. VI, cl. 2, U.S. Const. In re Parrish, 19 B.R. 331 (Bankr. D. Colo. 1982); In re Robinson, 44 B.R. 292 (Bankr. D. Colo. 1984).

This section is constitutional, notwithstanding the fact that Colorado does not provide an exemption for alimony and support. Ranes v. Molen, 31 B.R. 70 (Bankr. D. Colo. 1983).

Debtor's claim that entire section is unconstitutional because second sentence exceeds state authority to deny federal exemptions is not addressed because debtor lacked standing to question the constitutionality of the statute. Hinkson v. Pfleiderer, 729 F.2d 697 (10th Cir. 1984).

Purpose of revision of exemption schedules. When Colorado revised its exemption schedules, it sought to meet congressional criticism that most of the state exemption laws are outmoded, designed for more rural times, and hopelessly inadequate to serve the needs of and provide a fresh start for modern urban debtors. In re Parrish, 19 B.R. 331 (Bankr. D. Colo. 1982).

State exemption scheme conforms to federal legislative attempt. Colorado's scheme of bankruptcy exemptions is in conformity with the federal legislative intent to provide the required "fresh start" to debtors in bankruptcy. In re Parrish, 19 B.R. 331 (Bankr. D. Colo. 1982).

Debtor limited to state exemptions. Because Colorado's bankruptcy exemptions are not inconsistent with the federal scheme of exemptions, a debtor may use only those exemptions provided for in Colorado law. In re Parrish, 19 B.R. 331 (Bankr. D. Colo. 1982).

Colorado has "opted out" and denied to its residents the right to choose the exemptions in 11 U.S.C. § 522(d), thus confining its debtors to those exemptions enumerated in the Colorado statutes. In re Janesofsky, 22 B.R. 973 (Bankr. D. Colo. 1982).

Colorado exemptions are available only to Colorado residents. Since debtor may not claim Colorado exemptions because she is not a Colorado resident, and since the 730-day domiciliary requirement in the federal bankruptcy code renders her ineligible to claim exemptions under any state's laws, debtor may claim federal exemptions. In re Underwood, 342 B.R. 358 (Bankr. D. Colo. 2006).

Debtor denied exemptions in 11 U.S.C. § 522 (d) because Colorado has "opted out" of said exemptions as allowed by federal law. Hinkson v. Pfleiderer, 729 F.2d 697 (10th Cir. 1984).

Federal nonbankruptcy exemptions available to debtors. Colorado did not intend to deny the federal nonbankruptcy exemptions to debtors in this state, nor could Colorado deny those exemptions to its citizens. Those exemptions are specifically reserved to all debtors in 11 U.S.C. § 522(b)(2)(A). Thus, the federal nonbankruptcy exemptions are available to Colorado debtors. Ranes v. Molen, 31 B.R. 70 (Bankr. D. Colo. 1983).

Recorded encumbrance is secure claim. Where an encumbrance requiring payment of annual and special assessments is established by a prior recording of which the property owner had constructive notice when she accepted the deed, and where she also had actual notice from the contents of her deed, itself, the lienor holds a secured claim which a bankruptcy debtor must provide for. Lincoln v. Cherry Creek Homeowners Ass'n, 30 B.R. 905 (Bankr. D. Colo. 1983).

Judicial liens in bankruptcy. Judicial liens impair a bankruptcy debtor's equity where they are created subsequent to the establishment of a homestead right and no waiver is obtained from the property owner. Consequently, pursuant to 11 U.S.C. § 522 and §§ 13-54-107, 38-41-201 and 38-41-202, these liens are null and void and judicial liens. Lincoln v. Cherry Creek Homeowners Ass'n, 30 B.R. 905 (Bankr. D. Colo. 1983).

Applied in Redin v. Fidelity Fin. Servs., 14 B.R. 727 (Bankr. D. Colo. 1981).

13-54.5 ARTICLE 54.5

Garnishment

13-54.5-101. Definitions.

13-54.5-102. Continuing garnishment - creation of lien.

13-54.5-103. Property or earnings subject to garnishment.

13-54.5-104. Priority between multiple garnishments.

13-54.5-105. Notice to judgment debtor in continuing garnishment.

13-54.5-106. Notice to judgment debtor in other garnishment.

13-54.5-107. Service of notice upon judgment debtor.

13-54.5-108. Judgment debtor to file written objection or claim of exemption.

13-54.5-108.5. Garnishee not required to assert exemption.

13-54.5-109. Hearing on objection or claim of exemption.

13-54.5-110. No discharge from employment for any garnishment - general prohibition.

13-54.5-111. Supreme court rules.