.jpg)
Chapter 13 case - I need to invalidate a trust and have
In California, there is no requirement that a stock cooperative have more
than 1 shareholder (at least not in the code). The requirements appear to
be that a corporation is formed / availed of, primarily for the purpose of
holding title to improved real property, where a shareholder has the right
to exclusive use of a portion of the real property, and title must be held
by the corporation.
I have not seen the trust Holly is working on but these requirements seem
to be met with the exception of the "exclusive use" requirement. I think
that because the trustee/beneficiary are the same person, the
trustee/beneficiary has exclusive use of the property and so meets this
requirement, even if not explicit in the trust.
While I agree that if you form a corporation and convey interest in real
property to the corporation in exchange for ownership interest in the
corporation, you no longer own the real property, you only own shares.
California still allows for the homestead exemption to be claimed. There is
no title/ownership requirement.
To elaborate, suppose there is a true stock cooperative. What do those
people own? Shares of stock in a corporation. Yet, 704.710(a)(6) allows
them to claim the homestead exemption. Assuming there is case law that
makes this business trust, as written, not a stock cooperative. Why would
this real property not be considered a dwelling within the meaning of
704.710(a)?
If it's considered a dwelling, what keeps the Debtor from claiming the
exemption?
Sincerely,
Michael Avanesian
On Thu, Jul 31, 2014 at 12:36 AM, Mark Jessee jesseelaw@aol.com [cdcbaa] wrote:
>
>
> Stock cooperative refers situations involving a group of people sharing
> ownership of a common property and each participant is then allowed to
> live in a unit of the property. I've only seen one of these in 20 years of
> practicing law. There are statutory definitions and operational
> requirements in the business and professions code. I think it's far more
> common in places like New York City. Each member the cooperative owns a
> share of stock in the cooperative corporation. Along with that comes a
> corresponding right to lease and reside in one of the units. The bottom
> line though is One person does not a co-op make.
>
> In California pursuant to probate code section 18,200 there is no
> distinction between a revocable inter vivos trust and the living trustee
> beneficiary who created the trust. This is the garden-variety revocable
> trust commonly used for estate planning purposes. Judgment Creditor
> claims are not hindered in any way if assets of the judgment debtor are
> held in a revocable trust.
>
> Alternatively If you form a corporation and convey your house into the
> corporation in exchange for an ownership interest in the corporation you no
> longer own the real property. the corporation does. You only own the shares
> of stock of the corporation, an intangible asset. You cannot claim a
> homestead exemption in the stock just because you live in the house
> belonging to the Corporation you are a shareholder. I believe that's what
> Larry meant by stating you can't exempt property you don't own.
>
> Mark Jessee
>
>
> Sent from my iPhone
>
> On Jul 30, 2014, at 10:52 PM, "Michael Avanesian michael@avanesianlaw.com
> [cdcbaa]" wrote:
>
>
>
> I'm curious about this line, "you cant exempt property you don>
> I think that even if we assume this trust is a business trust and cannot
> be attacked on those grounds, cannot be undone, etc. What prevents the
> debtor from asserting her homestead exemption under the facts as presented?
> More specifically, what part of the definition for qualification to be
> entitled to the homestead exemption under 704.730 is not satisfied here?
>
> I always thought (although, I have little experience) that a homestead
> exemption applied to all primary residences where the debtor lived before a
> judgment was recorded. In the case of a bk, lived before the bk petition
> was filed. There is no ownership requirement, is there?
>
> Even assuming there is some kind of ownership requirement, isn't there a
> good argument that this situation is one where the homestead exemption
> should apply? After all, the "dwelling" definition uses the language "may
> include but is not limited to."
>
> Also, if you look at 704.710(a)(6), it looks like a business trust falls
> within the definition of 6566. "Stock cooperative," particularly when
> there is only 1 beneficiary.
>
>
> Sincerely,
> Michael Avanesian
>
> On Wed, Jul 30, 2014 at 2:29 PM, 'Larry Webb' larry@webbklaw.com [cdcbaa]
> wrote:
>
>>
>>
>> This is not a probate trust because a business trust is excluded as a
>> trust under the probate code s82. I think Holly is describing a
>> Massachusetts trust; which some people inappropriately use for 1) asset
>> protection and or 2) tax avoidance. The trust sounds a bit dodgy. A
>> simple deed transfer would have to be disclosed and I would anticipate some
>> fraudulent transfer questions; at the minimum the transfer would not be the
>> same as probate trust transfer because there is a change in entity
>> ownership. The Los Angeles assessor has been going after these trusts.
>>
>>
>>
>> I think Holly said the trustor never owned the property, so presumptively
>> the trustee purchased the property and holds legal title and the
>> beneficiary has equitable title; but trustee and the beneficiary are the
>> same person so. . . . I think the tax dodge is avoiding the minimum
>> corp/LLC tax. She is trying to claim a homestead so there is no income
>> issue. Apparently the bankruptcy trustee is saying business trust is a
>> business entity [which it is] and not a probate trust; therefore it is not
>> the debtors property and you cant exempt property you don>>
>>
>>
>> Maybe a petition to determine ownership would solve the problem. But
>> there would be a lot of questions to answer on the way.
>>
>>
>>
>>
>>
>>
>>
>> Best regards
>>
>> Larry Webb
>>
>>
>>
>>
>>
>> California Board of Legal Specialization
>>
>> Certified Specialist in Bankruptcy Law
>>
>>
>>
>> State Bar of California 229344
>>
>> Central District California
>>
>> "A Debt Relief Agency"
>>
>> Check out my Blog
>>
>>
>>
>>
>>
>> Larry@webbklaw. com
>>
>> Law Offices of Larry Webb
>>
>> 484 Mobil Ste 43
>>
>> Camarillo Ca 93010
>>
>>
>>
>> P 805.987.1400
>>
>> F 805.987.2866
>>
>> C 805.750.2150
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
>> *Sent:* Wednesday, July 30, 2014 1:23 PM
>> *To:* cdcbaa@yahoogroups.com
>> *Subject:* RE: [cdcbaa] Chapter 13 case - I need to invalidate a trust
>> and have the property titled in the rightful owner (debtor)
>>
>>
>>
>>
>>
>> Im not sure Im seeing the problem. As attorneys, we regularly advise
>> clients to do wills and trusts, and put real estate into the trust. That
>> does not stop the person from claiming the homestead exemption under
>> applicable state law, so why would it in a bankruptcy?
>>
>>
>>
>> Vernon L. Ellicott, Esq.
>>
>> Certified Family Law Specialist
>>
>> California State Bar Board of Legal Specialization
>>
>> A Bankruptcy and Family Law Firm
>>
>> Law Offices of Vernon L. Ellicott
>>
>> 325 E. Hillcrest Drive, Suite 150
>>
>> Thousand Oaks, CA 91360-7799
>>
>> (805) 446-6262 Phone
>>
>> (661) 222-2922 Phone
>>
>> (805) 446-6264 Fax
>>
>>
>>
>>
>>
>> This e-mail transmission and any documents, files, or previous e-mail
>> messages attached to it, may contain confidential information from the LAW
>> OFFICES OF VERNON L. ELLICOTT that is legally privileged. If you are not
>> the intended recipient, or a person responsible for delivering it to the
>> intended recipient, you are hereby notified that any disclosure, copying,
>> distribution or use of any of the information contained in or attached to
>> this message is STRICTLY PROHIBITED. If you received this transmission in
>> error, please immediately notify us by reply e-mail, or by telephone at (805)
>> 446-6262, and destroy the original transmission and its attachments and
>> all copies of any kind, without reading them or saving them in any way.
>> Thank you.
>>
>>
>>
>> *A bad day on the bike is better than a good day on the golf course!*
>>
>>
>>
>>
>>
>> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com
>> ]
>> *Sent:* Wednesday, July 30, 2014 12:27 PM
>> *To:* cdcbaa
>> *Subject:* Re: [cdcbaa] Chapter 13 case - I need to invalidate a trust
>> and have the property titled in the rightful owner (debtor)
>>
>>
>>
>>
>>
>> Trustee (debtor) can amend the bylaws so long as they do not touch on or
>> change any term of the Declaration of Trust.
>>
>> Trust also says that: Trustee may terminate and dissolve this Trust at
>> any time, but only
>> with the assent of the owners of at least one hundred percent (100%) of
>> the shares (DEBTOR), or their proxies, voting at a meeting called for that
>> purpose pursuant to a notice given as hereinabove provided and specifying
>> the purpose of the meeting.
>>
>> On the termination of this Trust by any cause, *Trustee shall liquidate
>> the Trust estate,*
>> wind up its affairs, and dispose of its property and assets at public or
>> private sales, and, after
>> discharging all legal obligations of the Trust, shall distribute the
>> proceeds among the
>> shareholders in propoliion to their interests, and for these purposes
>> Trustee shall continue to act
>> until such duties have been fully performed. [THIS COULD BE A PROBLEM
>> because the termination may require Debtor to sell the property.]
>>
>> But trust also says:
>>
>>
>>
>>
>> *Trustee(s) shall hold the legal title to all property at any time
>> belonging to the Trustand the Trustee shall have the power to cause legal
>> title to any property of this Trust to be held in the name of one or more
>> of the Trustee or by any other person, on suchterms,* in such manner,
>> and with such powers as the Trustee hereunder may determine
>> and without disclosure that the Trustee are interested therein. They
>> shall have
>> absolute and elusive power and control over the management and conduct of
>> the
>> businesses and affairs of the Trust, free from any power of control on
>> the part of the
>> shareholders.
>> (b) Trustee may hold, manage, deal with, and dispose of the property and
>> business of the
>> Trust in the same manner as if they were the absolute proprietors
>> thereof, subject only
>> to the specific limitations herein placed on their powers. The
>> enumeration of powers
>> contained herein shall not be construed as limiting in any way the
>> general powers
>> hereby-conferred on Trustee. They shall have all powers necessary,
>> convenient, or
>> appropriate to the purposes and ends of this Trust, and are authorized to
>> take any
>> action, which they deed property to carry out such purposes.
>> (c) Trustee shall have the powers, amount others, to purchase or
>> otherwise acquire
>> property, and to sell, exchange, lease, mortgage, pledge, or in any
>> manner dispose,
>> encumber, improve, or deal with the property of the Trust, or any part
>> thereof or any
>> interest therein, on such terms and for such consideration and purposes
>> as they deem
>> proper.
>> (d) Trustee shall have the power to loan money in their control as
>> Trustee, with or
>> without security, on such terms as they deem expedient. Trustee may
>> engage in
>> business, manufacture, and deal in good, wares, and merchandise, incur
>> indebtedness,
>> borrow or loan money with or without security, enter into contracts of
>> all kinds,
>> without exception.
>> (e) Trustee may sue and be sued and prosecute and defend any and all
>> actions affecting
>> the Trust or its business or property, either in the name of the Trust or
>> in their own
>> names; they may adopt and enforce such bylaws or rules and regulations,
>> not
>> inconsistent with the provisions of this instrument, as they may from
>> time to time
>> deem expedient; they may adopt and use a common seal; they may vote in
>> person or
>> by proxy and stock belonging to the Trust estate; and receive the
>> dividends thereon.
>> The enumeration of specific duties and powers shall not be construed in
>> any way as a
>> limitation on the general powers intended to be conferred on Trustee.
>>
>>
>> Under the above provision it seems that if she "holds legal title" since
>> she is the trustee, then maybe she should be entitled to the homestead
>> because of that. Also, maybe she could just transfer the property into her
>> name right now pursuant to the above section, but I was advised by a
>> probate attorney who deals with trusts and invalid trusts that we would be
>> wise to seek a court order before just making the transfer.
>>
>> Thoughts?
>>
>>
>>
>>
>> Holly Roark
>>
>> Certified Bankruptcy Specialist*
>>
>> *and Sports Lawyer*
>>
>> holly@roarklawoffices.com **primary email address**
>>
>> www.roarklawoffices.com
>>
>> Central District of California
>>
>> Consumer Bankruptcy Attorney
>>
>> 1875 Century Park East, Suite 600
>>
>> Los Angeles, CA 90067
>>
>> T (310) 553-2600
>>
>> F (310) 553-2601
>>
>> *By State Bar of California Board of Legal Specialization
>>
>>
>>
>> **For a quicker response, email me at holly@roarklawoffices.com.
>>
>> I only use gmail for my listservs, and am likely to miss private emails
>>
>> directed to my gmail account.**
>>
>>
>>
>>
>>
>> On Wed, Jul 30, 2014 at 11:30 AM, 'Vernon L. Ellicott, Esq.'
>> vle@vlelaw.com [cdcbaa] wrote:
>>
>>
>>
>> First question is, What does the trust itself say about dissolving or
>> amending it?
>>
>>
>>
>> Vernon L. Ellicott, Esq.
>>
>> Certified Family Law Specialist
>>
>> California State Bar Board of Legal Specialization
>>
>> A Bankruptcy and Family Law Firm
>>
>> Law Offices of Vernon L. Ellicott
>>
>> 325 E. Hillcrest Drive, Suite 150
>>
>> Thousand Oaks, CA 91360-7799
>>
>> (805) 446-6262 Phone
>>
>> (661) 222-2922 Phone
>>
>> (805) 446-6264 Fax
>>
>>
>>
>>
>>
>> This e-mail transmission and any documents, files, or previous e-mail
>> messages attached to it, may contain confidential information from the LAW
>> OFFICES OF VERNON L. ELLICOTT that is legally privileged. If you are not
>> the intended recipient, or a person responsible for delivering it to the
>> intended recipient, you are hereby notified that any disclosure, copying,
>> distribution or use of any of the information contained in or attached to
>> this message is STRICTLY PROHIBITED. If you received this transmission in
>> error, please immediately notify us by reply e-mail, or by telephone at (805)
>> 446-6262, and destroy the original transmission and its attachments and
>> all copies of any kind, without reading them or saving them in any way.
>> Thank you.
>>
>>
>>
>> *A bad day on the bike is better than a good day on the golf course!*
>>
>>
>>
>>
>>
>> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
>> *Sent:* Wednesday, July 30, 2014 11:13 AM
>> *To:* Strictly Bankruptcy Issues; cdcbaa
>> *Subject:* [cdcbaa] Chapter 13 case - I need to invalidate a trust and
>> have the property titled in the rightful owner (debtor)
>>
>>
>>
>>
>>
>> Hotly contested case. Now in a chapter 13, converted from a 7. I need to
>> invalidate a trust and have the property titled in the rightful owner
>> (debtor) so she can take the homestead. Homestead is contested because the
>> house is titled in the name of a "business trust" and the argument against
>> the homestead is that the debtor only owns shares in the trust.
>>
>> We want to record the transfer documents to put the house back into her
>> name, but I think we need an order invalidating the "business trust".
>>
>> It seems this would be done as an AP rather than a motion as it's
>> esentially to determine the Debtor's interest in the property.
>>
>> Does anyone have a sample of what such an action would look like, or
>> something similar?
>>
>> Debtor is beneficiary and trustee of the trust, but NOT the trustor. The
>> trustor is a straw person who never owned the property that is the res of
>> the trust. The trust is a sham, but I need to prove all this and get the
>> house titled in the Debtor's name. We've declared the homestead, of course,
>> on schedule C, but have multiple parties objecting to it because of this
>> business trust.
>>
>>
>>
>> Help! Need samples, even if they are from probate court or somewhere
>> else. I just need to invalidate this trust and show that the debtor is the
>> rightful owner. Thanks.
>>
>>
>>
>> Holly Roark
>>
>> Certified Bankruptcy Specialist*
>>
>> *and Sports Lawyer*
>>
>> holly@roarklawoffices.com **primary email address**
>>
>> www.roarklawoffices.com
>>
>> Central District of California
>>
>> Consumer Bankruptcy Attorney
>>
>> 1875 Century Park East, Suite 600
>>
>> Los Angeles, CA 90067
>>
>> T (310) 553-2600
>>
>> F (310) 553-2601
>>
>> *By State Bar of California Board of Legal Specialization
>>
>>
>>
>> **For a quicker response, email me at holly@roarklawoffices.com.
>>
>> I only use gmail for my listservs, and am likely to miss private emails
>>
>> directed to my gmail account.**
>>
>>
>>
>>
>>
>>
>
>
In California, there is no requirement that a stock cooperative have more than 1 shareholder (at least not in the code). The requirements appear to be that a corporation is formed / availed of, primarily for the purpose of holding title to improved real property, where a shareholder has the right to exclusive use of a portion of the real property, and title must be held by the corporation.
I have not seen the trust Holly is working on but these requirements seem to be met with the exception of the "exclusive use" requirement. I think that because the trustee/beneficiary are the same person, the trustee/beneficiary has exclusive use of the property and so meets this requirement, even if not explicit in the trust.While I agree that if you form a corporation and convey interest in real property to the corporation in exchange for ownership interest in the corporation, you no longer own the real property, you only own shares. California still allows for the homestead exemption to be claimed. There is no title/ownership requirement.
To elaborate, suppose there is a true stock cooperative. What do those people own? Shares of stock in a corporation. Yet, 704.710(a)(6) allows them to claim the homestead exemption. Assuming there is case law that makes this business trust, as written, not a stock cooperative. Why would this real property not be considered a dwelling within the meaning of 704.710(a)?
If it's considered a dwelling, what keeps the Debtor from claiming the exemption?Sincerely,
The post was migrated from Yahoo.
I'm curious about this line, "you cant exempt property you don
I think that even if we assume this trust is a business trust and cannot be
attacked on those grounds, cannot be undone, etc. What prevents the debtor
from asserting her homestead exemption under the facts as presented? More
specifically, what part of the definition for qualification to be entitled
to the homestead exemption under 704.730 is not satisfied here?
I always thought (although, I have little experience) that a homestead
exemption applied to all primary residences where the debtor lived before a
judgment was recorded. In the case of a bk, lived before the bk petition
was filed. There is no ownership requirement, is there?
Even assuming there is some kind of ownership requirement, isn't there a
good argument that this situation is one where the homestead exemption
should apply? After all, the "dwelling" definition uses the language "may
include but is not limited to."
Also, if you look at 704.710(a)(6), it looks like a business trust falls
within the definition of 6566. "Stock cooperative," particularly when there
is only 1 beneficiary.
Sincerely,
Michael Avanesian
On Wed, Jul 30, 2014 at 2:29 PM, 'Larry Webb' larry@webbklaw.com [cdcbaa] wrote:
>
>
> This is not a probate trust because a business trust is excluded as a
> trust under the probate code s82. I think Holly is describing a
> Massachusetts trust; which some people inappropriately use for 1) asset
> protection and or 2) tax avoidance. The trust sounds a bit dodgy. A
> simple deed transfer would have to be disclosed and I would anticipate some
> fraudulent transfer questions; at the minimum the transfer would not be the
> same as probate trust transfer because there is a change in entity
> ownership. The Los Angeles assessor has been going after these trusts.
>
>
>
> I think Holly said the trustor never owned the property, so presumptively
> the trustee purchased the property and holds legal title and the
> beneficiary has equitable title; but trustee and the beneficiary are the
> same person so. . . . I think the tax dodge is avoiding the minimum
> corp/LLC tax. She is trying to claim a homestead so there is no income
> issue. Apparently the bankruptcy trustee is saying business trust is a
> business entity [which it is] and not a probate trust; therefore it is not
> the debtors property and you cant exempt property you don>
>
>
> Maybe a petition to determine ownership would solve the problem. But
> there would be a lot of questions to answer on the way.
>
>
>
>
>
>
>
> Best regards
>
> Larry Webb
>
>
>
> [image: blslogo]
>
> California Board of Legal Specialization
>
> Certified Specialist in Bankruptcy Law
>
>
>
> State Bar of California 229344
>
> Central District California
>
> "A Debt Relief Agency"
>
> Check out my Blog
>
>
>
>
>
> Larry@webbklaw. com
>
> Law Offices of Larry Webb
>
> 484 Mobil Ste 43
>
> Camarillo Ca 93010
>
>
>
> P 805.987.1400
>
> F 805.987.2866
>
> C 805.750.2150
>
>
>
>
>
>
>
>
>
>
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
> *Sent:* Wednesday, July 30, 2014 1:23 PM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* RE: [cdcbaa] Chapter 13 case - I need to invalidate a trust
> and have the property titled in the rightful owner (debtor)
>
>
>
>
>
> Im not sure Im seeing the problem. As attorneys, we regularly advise
> clients to do wills and trusts, and put real estate into the trust. That
> does not stop the person from claiming the homestead exemption under
> applicable state law, so why would it in a bankruptcy?
>
>
>
> Vernon L. Ellicott, Esq.
>
> Certified Family Law Specialist
>
> California State Bar Board of Legal Specialization
>
> A Bankruptcy and Family Law Firm
>
> Law Offices of Vernon L. Ellicott
>
> 325 E. Hillcrest Drive, Suite 150
>
> Thousand Oaks, CA 91360-7799
>
> (805) 446-6262 Phone
>
> (661) 222-2922 Phone
>
> (805) 446-6264 Fax
>
>
>
>
>
> This e-mail transmission and any documents, files, or previous e-mail
> messages attached to it, may contain confidential information from the LAW
> OFFICES OF VERNON L. ELLICOTT that is legally privileged. If you are not
> the intended recipient, or a person responsible for delivering it to the
> intended recipient, you are hereby notified that any disclosure, copying,
> distribution or use of any of the information contained in or attached to
> this message is STRICTLY PROHIBITED. If you received this transmission in
> error, please immediately notify us by reply e-mail, or by telephone at (805)
> 446-6262, and destroy the original transmission and its attachments and
> all copies of any kind, without reading them or saving them in any way.
> Thank you.
>
>
>
> *A bad day on the bike is better than a good day on the golf course!*
>
>
>
>
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com
> ]
> *Sent:* Wednesday, July 30, 2014 12:27 PM
> *To:* cdcbaa
> *Subject:* Re: [cdcbaa] Chapter 13 case - I need to invalidate a trust
> and have the property titled in the rightful owner (debtor)
>
>
>
>
>
> Trustee (debtor) can amend the bylaws so long as they do not touch on or
> change any term of the Declaration of Trust.
>
> Trust also says that: Trustee may terminate and dissolve this Trust at any
> time, but only
> with the assent of the owners of at least one hundred percent (100%) of
> the shares (DEBTOR), or their proxies, voting at a meeting called for that
> purpose pursuant to a notice given as hereinabove provided and specifying
> the purpose of the meeting.
>
> On the termination of this Trust by any cause, *Trustee shall liquidate
> the Trust estate,*
> wind up its affairs, and dispose of its property and assets at public or
> private sales, and, after
> discharging all legal obligations of the Trust, shall distribute the
> proceeds among the
> shareholders in propoliion to their interests, and for these purposes
> Trustee shall continue to act
> until such duties have been fully performed. [THIS COULD BE A PROBLEM
> because the termination may require Debtor to sell the property.]
>
> But trust also says:
>
>
>
>
> *Trustee(s) shall hold the legal title to all property at any time
> belonging to the Trustand the Trustee shall have the power to cause legal
> title to any property of this Trustto be held in the name of one or more of
> the Trustee or by any other person, on suchterms,* in such manner, and
> with such powers as the Trustee hereunder may determine
> and without disclosure that the Trustee are interested therein. They shall
> have
> absolute and elusive power and control over the management and conduct of
> the
> businesses and affairs of the Trust, free from any power of control on the
> part of the
> shareholders.
> (b) Trustee may hold, manage, deal with, and dispose of the property and
> business of the
> Trust in the same manner as if they were the absolute proprietors thereof,
> subject only
> to the specific limitations herein placed on their powers. The enumeration
> of powers
> contained herein shall not be construed as limiting in any way the general
> powers
> hereby-conferred on Trustee. They shall have all powers necessary,
> convenient, or
> appropriate to the purposes and ends of this Trust, and are authorized to
> take any
> action, which they deed property to carry out such purposes.
> (c) Trustee shall have the powers, amount others, to purchase or otherwise
> acquire
> property, and to sell, exchange, lease, mortgage, pledge, or in any manner
> dispose,
> encumber, improve, or deal with the property of the Trust, or any part
> thereof or any
> interest therein, on such terms and for such consideration and purposes as
> they deem
> proper.
> (d) Trustee shall have the power to loan money in their control as
> Trustee, with or
> without security, on such terms as they deem expedient. Trustee may engage
> in
> business, manufacture, and deal in good, wares, and merchandise, incur
> indebtedness,
> borrow or loan money with or without security, enter into contracts of all
> kinds,
> without exception.
> (e) Trustee may sue and be sued and prosecute and defend any and all
> actions affecting
> the Trust or its business or property, either in the name of the Trust or
> in their own
> names; they may adopt and enforce such bylaws or rules and regulations, not
> inconsistent with the provisions of this instrument, as they may from time
> to time
> deem expedient; they may adopt and use a common seal; they may vote in
> person or
> by proxy and stock belonging to the Trust estate; and receive the
> dividends thereon.
> The enumeration of specific duties and powers shall not be construed in
> any way as a
> limitation on the general powers intended to be conferred on Trustee.
>
>
> Under the above provision it seems that if she "holds legal title" since
> she is the trustee, then maybe she should be entitled to the homestead
> because of that. Also, maybe she could just transfer the property into her
> name right now pursuant to the above section, but I was advised by a
> probate attorney who deals with trusts and invalid trusts that we would be
> wise to seek a court order before just making the transfer.
>
> Thoughts?
>
>
>
>
> Holly Roark
>
> Certified Bankruptcy Specialist*
>
> *and Sports Lawyer*
>
> holly@roarklawoffices.com **primary email address**
>
> www.roarklawoffices.com
>
> Central District of California
>
> Consumer Bankruptcy Attorney
>
> 1875 Century Park East, Suite 600
>
> Los Angeles, CA 90067
>
> T (310) 553-2600
>
> F (310) 553-2601
>
> *By State Bar of California Board of Legal Specialization
>
>
>
> **For a quicker response, email me at holly@roarklawoffices.com.
>
> I only use gmail for my listservs, and am likely to miss private emails
>
> directed to my gmail account.**
>
>
>
>
>
> On Wed, Jul 30, 2014 at 11:30 AM, 'Vernon L. Ellicott, Esq.'
> vle@vlelaw.com [cdcbaa] wrote:
>
>
>
> First question is, What does the trust itself say about dissolving or
> amending it?
>
>
>
> Vernon L. Ellicott, Esq.
>
> Certified Family Law Specialist
>
> California State Bar Board of Legal Specialization
>
> A Bankruptcy and Family Law Firm
>
> Law Offices of Vernon L. Ellicott
>
> 325 E. Hillcrest Drive, Suite 150
>
> Thousand Oaks, CA 91360-7799
>
> (805) 446-6262 Phone
>
> (661) 222-2922 Phone
>
> (805) 446-6264 Fax
>
>
>
>
>
> This e-mail transmission and any documents, files, or previous e-mail
> messages attached to it, may contain confidential information from the LAW
> OFFICES OF VERNON L. ELLICOTT that is legally privileged. If you are not
> the intended recipient, or a person responsible for delivering it to the
> intended recipient, you are hereby notified that any disclosure, copying,
> distribution or use of any of the information contained in or attached to
> this message is STRICTLY PROHIBITED. If you received this transmission in
> error, please immediately notify us by reply e-mail, or by telephone at (805)
> 446-6262, and destroy the original transmission and its attachments and
> all copies of any kind, without reading them or saving them in any way.
> Thank you.
>
>
>
> *A bad day on the bike is better than a good day on the golf course!*
>
>
>
>
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
> *Sent:* Wednesday, July 30, 2014 11:13 AM
> *To:* Strictly Bankruptcy Issues; cdcbaa
> *Subject:* [cdcbaa] Chapter 13 case - I need to invalidate a trust and
> have the property titled in the rightful owner (debtor)
>
>
>
>
>
> Hotly contested case. Now in a chapter 13, converted from a 7. I need to
> invalidate a trust and have the property titled in the rightful owner
> (debtor) so she can take the homestead. Homestead is contested because the
> house is titled in the name of a "business trust" and the argument against
> the homestead is that the debtor only owns shares in the trust.
>
> We want to record the transfer documents to put the house back into her
> name, but I think we need an order invalidating the "business trust".
>
> It seems this would be done as an AP rather than a motion as it's
> esentially to determine the Debtor's interest in the property.
>
> Does anyone have a sample of what such an action would look like, or
> something similar?
>
> Debtor is beneficiary and trustee of the trust, but NOT the trustor. The
> trustor is a straw person who never owned the property that is the res of
> the trust. The trust is a sham, but I need to prove all this and get the
> house titled in the Debtor's name. We've declared the homestead, of course,
> on schedule C, but have multiple parties objecting to it because of this
> business trust.
>
>
>
> Help! Need samples, even if they are from probate court or somewhere else.
> I just need to invalidate this trust and show that the debtor is the
> rightful owner. Thanks.
>
>
>
> Holly Roark
>
> Certified Bankruptcy Specialist*
>
> *and Sports Lawyer*
>
> holly@roarklawoffices.com **primary email address**
>
> www.roarklawoffices.com
>
> Central District of California
>
> Consumer Bankruptcy Attorney
>
> 1875 Century Park East, Suite 600
>
> Los Angeles, CA 90067
>
> T (310) 553-2600
>
> F (310) 553-2601
>
> *By State Bar of California Board of Legal Specialization
>
>
>
> **For a quicker response, email me at holly@roarklawoffices.com.
>
> I only use gmail for my listservs, and am likely to miss private emails
>
> directed to my gmail account.**
>
>
>
>
>
>
>
I'm curious about this line, "
The post was migrated from Yahoo.
Trustee (debtor) can amend the bylaws so long as they do not touch on or
change any term of the Declaration of Trust.
Trust also says that: Trustee may terminate and dissolve this Trust at any
time, but only
with the assent of the owners of at least one hundred percent (100%) of the
shares (DEBTOR), or their proxies, voting at a meeting called for that
purpose pursuant to a notice given as hereinabove provided and specifying
the purpose of the meeting.
On the termination of this Trust by any cause, *Trustee shall liquidate the
Trust estate,*
wind up its affairs, and dispose of its property and assets at public or
private sales, and, after
discharging all legal obligations of the Trust, shall distribute the
proceeds among the
shareholders in propoliion to their interests, and for these purposes
Trustee shall continue to act
until such duties have been fully performed. [THIS COULD BE A PROBLEM
because the termination may require Debtor to sell the property.]
But trust also says:
*Trustee(s) shall hold the legal title to all property at any time
belonging to the Trustand the Trustee shall have the power to cause legal
title to any property of this Trustto be held in the name of one or more of
the Trustee or by any other person, on suchterms,* in such manner, and with
such powers as the Trustee hereunder may determine
and without disclosure that the Trustee are interested therein. They shall
have
absolute and elusive power and control over the management and conduct of
the
businesses and affairs of the Trust, free from any power of control on the
part of the
shareholders.
(b) Trustee may hold, manage, deal with, and dispose of the property and
business of the
Trust in the same manner as if they were the absolute proprietors thereof,
subject only
to the specific limitations herein placed on their powers. The enumeration
of powers
contained herein shall not be construed as limiting in any way the general
powers
hereby-conferred on Trustee. They shall have all powers necessary,
convenient, or
appropriate to the purposes and ends of this Trust, and are authorized to
take any
action, which they deed property to carry out such purposes.
(c) Trustee shall have the powers, amount others, to purchase or otherwise
acquire
property, and to sell, exchange, lease, mortgage, pledge, or in any manner
dispose,
encumber, improve, or deal with the property of the Trust, or any part
thereof or any
interest therein, on such terms and for such consideration and purposes as
they deem
proper.
(d) Trustee shall have the power to loan money in their control as Trustee,
with or
without security, on such terms as they deem expedient. Trustee may engage
in
business, manufacture, and deal in good, wares, and merchandise, incur
indebtedness,
borrow or loan money with or without security, enter into contracts of all
kinds,
without exception.
(e) Trustee may sue and be sued and prosecute and defend any and all
actions affecting
the Trust or its business or property, either in the name of the Trust or
in their own
names; they may adopt and enforce such bylaws or rules and regulations, not
inconsistent with the provisions of this instrument, as they may from time
to time
deem expedient; they may adopt and use a common seal; they may vote in
person or
by proxy and stock belonging to the Trust estate; and receive the dividends
thereon.
The enumeration of specific duties and powers shall not be construed in any
way as a
limitation on the general powers intended to be conferred on Trustee.
Under the above provision it seems that if she "holds legal title" since
she is the trustee, then maybe she should be entitled to the homestead
because of that. Also, maybe she could just transfer the property into her
name right now pursuant to the above section, but I was advised by a
probate attorney who deals with trusts and invalid trusts that we would be
wise to seek a court order before just making the transfer.
Thoughts?
Holly Roark
Certified Bankruptcy Specialist*
*and Sports Lawyer*
holly@roarklawoffices.com **primary email address**
www.roarklawoffices.com
Central District of California
Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600
Los Angeles, CA 90067
T (310) 553-2600
F (310) 553-2601
*By State Bar of California Board of Legal Specialization
**For a quicker response, email me at holly@roarklawoffices.com.
I only use gmail for my listservs, and am likely to miss private emails
directed to my gmail account.**
On Wed, Jul 30, 2014 at 11:30 AM, 'Vernon L. Ellicott, Esq.' vle@vlelaw.com
[cdcbaa] wrote:
>
>
> First question is, What does the trust itself say about dissolving or
> amending it?
>
>
>
> Vernon L. Ellicott, Esq.
>
> Certified Family Law Specialist
>
> California State Bar Board of Legal Specialization
>
> A Bankruptcy and Family Law Firm
>
> Law Offices of Vernon L. Ellicott
>
> 325 E. Hillcrest Drive, Suite 150
>
> Thousand Oaks, CA 91360-7799
>
> (805) 446-6262 Phone
>
> (661) 222-2922 Phone
>
> (805) 446-6264 Fax
>
>
>
>
>
> This e-mail transmission and any documents, files, or previous e-mail
> messages attached to it, may contain confidential information from the LAW
> OFFICES OF VERNON L. ELLICOTT that is legally privileged. If you are not
> the intended recipient, or a person responsible for delivering it to the
> intended recipient, you are hereby notified that any disclosure, copying,
> distribution or use of any of the information contained in or attached to
> this message is STRICTLY PROHIBITED. If you received this transmission in
> error, please immediately notify us by reply e-mail, or by telephone at (805)
> 446-6262, and destroy the original transmission and its attachments and
> all copies of any kind, without reading them or saving them in any way.
> Thank you.
>
>
>
> *A bad day on the bike is better than a good day on the golf course!*
>
>
>
>
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
> *Sent:* Wednesday, July 30, 2014 11:13 AM
> *To:* Strictly Bankruptcy Issues; cdcbaa
> *Subject:* [cdcbaa] Chapter 13 case - I need to invalidate a trust and
> have the property titled in the rightful owner (debtor)
>
>
>
>
>
> Hotly contested case. Now in a chapter 13, converted from a 7. I need to
> invalidate a trust and have the property titled in the rightful owner
> (debtor) so she can take the homestead. Homestead is contested because the
> house is titled in the name of a "business trust" and the argument against
> the homestead is that the debtor only owns shares in the trust.
>
> We want to record the transfer documents to put the house back into her
> name, but I think we need an order invalidating the "business trust".
>
> It seems this would be done as an AP rather than a motion as it's
> esentially to determine the Debtor's interest in the property.
>
> Does anyone have a sample of what such an action would look like, or
> something similar?
>
> Debtor is beneficiary and trustee of the trust, but NOT the trustor. The
> trustor is a straw person who never owned the property that is the res of
> the trust. The trust is a sham, but I need to prove all this and get the
> house titled in the Debtor's name. We've declared the homestead, of course,
> on schedule C, but have multiple parties objecting to it because of this
> business trust.
>
>
>
> Help! Need samples, even if they are from probate court or somewhere else.
> I just need to invalidate this trust and show that the debtor is the
> rightful owner. Thanks.
>
>
>
> Holly Roark
>
> Certified Bankruptcy Specialist*
>
> *and Sports Lawyer*
>
> holly@roarklawoffices.com **primary email address**
>
> www.roarklawoffices.com
>
> Central District of California
>
> Consumer Bankruptcy Attorney
>
> 1875 Century Park East, Suite 600
>
> Los Angeles, CA 90067
>
> T (310) 553-2600
>
> F (310) 553-2601
>
> *By State Bar of California Board of Legal Specialization
>
>
>
> **For a quicker response, email me at holly@roarklawoffices.com.
>
> I only use gmail for my listservs, and am likely to miss private emails
>
> directed to my gmail account.**
>
>
>
>
>
Trustee (debtor) can amend the bylaws so long as they do not touch on or change any term of the Declaration of Trust.Trust also says that: Trustee may terminate and dissolve this Trust at any time, but only
with the assent of the owners of at least one hundred percent (100%) of the shares (DEBTOR), or their proxies, voting at a meeting called for that purpose pursuant to a notice given as hereinabove provided and specifying the purpose of the meeting.
On the termination of this Trust by any cause, Trustee shall liquidate the Trust estate,wind up its affairs, and dispose of its property and assets at public or private sales, and, afterdischarging all legal obligations of the Trust, shall distribute the proceeds among the
shareholders in propoliion to their interests, and for these purposes Trustee shall continue to actuntil such duties have been fully performed.sell the property.]
But trust also says:Trustee(s) shall hold the legal title to all property at any time belonging to the Trustand the Trustee shall have the power to cause legal title to any property of this Trust
to be held in the name of one or more of the Trustee or by any other person, on suchterms, in such manner, and with such powers as the Trustee hereunder may determineand without disclosure that the Trustee are interested therein. They shall have
absolute and elusive power and control over the management and conduct of thebusinesses and affairs of the Trust, free from any power of control on the part of theshareholders.(b) Trustee may hold, manage, deal with, and dispose of the property and business of the
Trust in the same manner as if they were the absolute proprietors thereof, subject onlyto the specific limitations herein placed on their powers. The enumeration of powerscontained herein shall not be construed as limiting in any way the general powers
hereby-conferred on Trustee. They shall have all powers necessary, convenient, orappropriate to the purposes and ends of this Trust, and are authorized to take anyaction, which they deed property to carry out such purposes.
(c) Trustee shall have the powers, amount others, to purchase or otherwise acquireproperty, and to sell, exchange, lease, mortgage, pledge, or in any manner dispose,encumber, improve, or deal with the property of the Trust, or any part thereof or any
interest therein, on such terms and for such consideration and purposes as they deemproper.(d) Trustee shall have the power to loan money in their control as Trustee, with orwithout security, on such terms as they deem expedient. Trustee may engage in
business, manufacture, and deal in good, wares, and merchandise, incur indebtedness,borrow or loan money with or without security, enter into contracts of all kinds,without exception.(e) Trustee may sue and be sued and prosecute and defend any and all actions affecting
the Trust or its business or property, either in the name of the Trust or in their ownnames; they may adopt and enforce such bylaws or rules and regulations, notinconsistent with the provisions of this instrument, as they may from time to time
deem expedient; they may adopt and use a common seal; they may vote in person orby proxy and stock belonging to the Trust estate; and receive the dividends thereon.The enumeration of specific duties and powers shall not be construed in any way as a
limitation on the general powers intended to be conferred on Trustee.Under the above provision it seems that if she "holds legal title" since she is the trustee, then maybe she should be entitled to the homestead because of that. Also, maybe she could just transfer the property into her name right now pursuant to the above section, but I was advised by a probate attorney who deals with trusts and invalid trusts that we would be wise to seek a court order before just making the transfer.
Thoughts?Holly RoarkCertified Bankruptcy Specialist*and Sports Lawyer
holly@roarklawoffices.com**primary email address**
www.roarklawoffices.com
Central District of California
Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600
Los Angeles, CA 90067
T (310) 553-2600
F (310) 553-2601
*By State Bar of California Board of Legal
Specialization
The post was migrated from Yahoo.