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Homestead exemption vs Declared Homestead
No
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Jun 11, 2014, at 5:32 PM, "Catherine Christiansen christiansenlaw@yahoo.com [cdcbaa]" wrote:
>
> Can a Debtor, who moved to CA 6 months before filing BK, purchased a residence, and filed a homestead declaration at the county recorders office, claim the declared homestead exemption under 704.920 when most of the 2 years before filing CH 7 Debtor lived in OH and therefore must use the OH exemption code on property. OH does not recognize a homestead exemption unless you live there, so Debtor ends up with Federal Exemptions. Seems like I have read a case with similar fact pattern in the last 3 years but can't find it.
>
> Problem is Debtor has about $100,000 in equity in residence and going through a financial valley so Chapter 13 would require contributions from someone to fund the plan.
>
> Is the declared homestead able to protect the equity under the code section and because the Debtor resided in the CA property on the date of filing, Showalter v. Hopper , or is the Debtor stuck with the maximum homestead exemption available under 522?
>
> Thanks for your thoughts in advance.
>
>
>
> Law Office of Catherine Christiansen
> 17011 Beach Blvd. Ste 900, Huntington Beach, CA 92647
> Tel: (714) 375-6651 Fax: (562) 490-8572
> attorneychristiansen@gmail.com
>
>
The post was migrated from Yahoo.
Thanks for your response Mike.
If I narrow the issue to whether the declared homestead runs with the land and residence is determined at the time of filing, then the question becomes, then does the declared homestead exempt Debtors equity from the estate no matter which exemption code is used for the rest of Debtor's property.
Law Office of Catherine Christiansen
17011 Beach Blvd. Ste 900, Huntington Beach, CA 92647
Tel: (714) 375-6651 Fax: (562) 490-8572
attorneychristiansen@gmail.com
On , "Michael Avanesian michael@avanesianlaw.com [cdcbaa]" wrote:
I don't know the answer to the declared homestead question but my gut says that 522 tells us which state's exemptions to use so if it's not California, you can't use any California exemptions.
My response is to address this other potential pitfall. If the potential Debtor moved to California 6 months ago and lived in Ohio for "most of" the last two years, what state's exemptions apply? This is addressed in 522(b)(3)(A). In your fact pattern the relevant fact is the 6 month period 2 years before the proposed petition date. This means it's possible for Ohio not to be the correct state if in that 6 month period, more than half was spent domiciled in another state.
Ex: Debtor domiciled in Kansas for 4 months, domiciles in Ohio for the next 1 year 8 months, domiciles in California for the next 6 months. The analysis would skip the last 2 years and look at the 6 month period before that. In this case, it would show 4 months Kansas, 2 months Ohio. Kansas would be the correct state. If I was counsel, I would go so far as to ask for proof, to see what kind of evidence you have to support your position or explain the problem in a letter.
Also remember that the liquidation value of 75k of equity is not 75k.
Sincerely,
Michael Avanesian
Law Offices of David A. Tilem
www.tilemlaw.com
818-507-6000
On Wed, Jun 11, 2014 at 5:32 PM, Catherine Christiansen christiansenlaw@yahoo.com [cdcbaa] wrote:
>
>Can a Debtor, who moved to CA 6 months before filing BK, purchased a residence, and filed a homestead declaration at the county recorders office, claim the declared homestead exemption under 704.920 when most of the 2 years before filing CH 7 Debtor lived in OH and therefore must use the OH exemption code on property. OH does not recognize a homestead exemption unless you live there, so Debtor ends up with Federal Exemptions. Seems like I have read a case with similar fact pattern in the last 3 years but can't find it.
>
>
>
>Problem is Debtor has about $100,000 in equity in residence and going through a financial valley so Chapter 13 would require contributions from someone to fund the plan.
>
>
>Is the declared homestead able to protect the equity under the code section and because the Debtor resided in the CA property on the date of filing, Showalter v. Hopper , or is the Debtor stuck with the maximum homestead exemption available under 522?
>
>
>
>Thanks for your thoughts in advance.
>
>
>
>
>
>
>Law Office of Catherine Christiansen
>17011 Beach Blvd. Ste 900, Huntington Beach, CA 92647
>Tel: (714) 375-6651 Fax: (562) 490-8572
>attorneychristiansen@gmail.com
>
>
The post was migrated from Yahoo.
I don't know the answer to the declared homestead question but my gut says
that 522 tells us which state's exemptions to use so if it's not
California, you can't use any California exemptions.
My response is to address this other potential pitfall. If the potential
Debtor moved to California 6 months ago and lived in Ohio for "most of" the
last two years, what state's exemptions apply? This is addressed in
522(b)(3)(A). In your fact pattern the relevant fact is the 6 month period
2 years before the proposed petition date. This means it's possible for
Ohio not to be the correct state if in that 6 month period, more than half
was spent domiciled in another state.
Ex: Debtor domiciled in Kansas for 4 months, domiciles in Ohio for the next
1 year 8 months, domiciles in California for the next 6 months. The
analysis would skip the last 2 years and look at the 6 month period before
that. In this case, it would show 4 months Kansas, 2 months Ohio. Kansas
would be the correct state. If I was counsel, I would go so far as to ask
for proof, to see what kind of evidence you have to support your position
or explain the problem in a letter.
Also remember that the liquidation value of 75k of equity is not 75k.
Sincerely,
Michael Avanesian
Law Offices of David A. Tilem
www.tilemlaw.com
818-507-6000
On Wed, Jun 11, 2014 at 5:32 PM, Catherine Christiansen
christiansenlaw@yahoo.com [cdcbaa] wrote:
>
>
> Can a Debtor, who moved to CA 6 months before filing BK, purchased a
> residence, and filed a homestead declaration at the county recorders
> office, claim the declared homestead exemption under 704.920 when most of
> the 2 years before filing CH 7 Debtor lived in OH and therefore must use
> the OH exemption code on property. OH does not recognize a homestead
> exemption unless you live there, so Debtor ends up with Federal
> Exemptions. Seems like I have read a case with similar fact pattern in the
> last 3 years but can't find it.
>
> Problem is Debtor has about $100,000 in equity in residence and going
> through a financial valley so Chapter 13 would require contributions from
> someone to fund the plan.
>
> Is the declared homestead able to protect the equity under the code
> section and because the Debtor resided in the CA property on the date of
> filing, Showalter v. Hopper , or is the Debtor stuck with the maximum
> homestead exemption available under 522?
>
> Thanks for your thoughts in advance.
>
>
>
> Law Office of Catherine Christiansen
> 17011 Beach Blvd. Ste 900, Huntington Beach, CA 92647
> Tel: (714) 375-6651 Fax: (562) 490-8572
> attorneychristiansen@gmail.com
>
>
>
I don't know the answer to the declared homestead question but my gut says that 522 tells us which state's exemptions to
The post was migrated from Yahoo.
Can a Debtor, who moved to CA 6 months before filing BK, purchased a residence, and filed a homestead declaration at the county recorders office, claim the declared homestead exemption under 704.920 when most of the 2 years before filing CH 7 Debtor lived in OH and therefore must use the OH exemption code on property. OH does not recognize a homestead exemption unless you live there, so Debtor ends up with Federal Exemptions. Seems like I have read a case with similar fact pattern in the last 3 years but can't find it.
Problem is Debtor has about $100,000 in equity in residence and going through a financial valley so Chapter 13 would require contributions from someone to fund the plan.
Is the declared homestead able to protect the equity under the code section and because the Debtor resided in the CA property on the date of filing, Showalter v. Hopper , or is the Debtor stuck with the maximum homestead exemption available under 522?
Thanks for your thoughts in advance.
Law Office of Catherine Christiansen
17011 Beach Blvd. Ste 900, Huntington Beach, CA 92647
Tel: (714) 375-6651 Fax: (562) 490-8572
attorneychristiansen@gmail.com
The post was migrated from Yahoo.