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Sudden 522 brain-numbness - URGENT response appreciated
I believe that the BAP case on point was Higgins, 201 B.R. 965 (9th Cir. BAP Cal. 1996), which held that there did not have to be equity in order to avoid a lien under Section 522. If this was overruled or there is something more recent on point, please feel free to point that out!
Todd Mannis, Esq.
>
> Larry and Nikki:
>
>
>
> At one time there had time to be equity in the property, then at another
> time (are you catching on that I cannot remember the dates) they changed
> 522(f). Note that in its present form, no equity is required. There is a
> specific formula in (2)(A) that determines the extent to which the lien is
> impaired, which is unrelated to whether there is actually any equity in the
> property.
>
>
>
> Eg. Jmt lien 50k
>
> 1st 200k
>
> Homestead 75k
>
> Total 325k
>
>
>
> FMV 180k
>
>
>
> Extent of impairment 145k
>
>
>
> No equity in house even without the jmt lien, but lien impairs homestead
> 145K per the formula, so all of jmt lien is stripped. As the FMV goes up,
> then the impairment goes down, but my example is to show that even with no
> equity there is impairment under the formula.
>
>
>
> There is a case out there that stands for the proposition that 522(f) really
> means what it says, but I don't remember the name of the case and often
> wonder why we need cases that say 5+27. However, since there are judges
> who go back to before the change in the code, in addition to the formula
> verbatim, you should cite the case.
>
>
>
> If you have any questions or concerns, please contact me.
>
>
>
> Pat
>
>
>
> Patrick T. Green, Esq.
>
> Fitzgerald & Green
>
> Attorneys at Law
>
> 1010 E. Union Street
>
> Suite 206
>
> Pasadena, CA 91106
>
> Tel: 626-449-8433
>
> Fax: 626-449-0565
>
> pat@...
>
>
>
>
>
> Larry Simons
> Sent: Wednesday, April 27, 2011 2:56 PM
> To: cdcbaa@yahoogroups.com
> Subject: RE: [cdcbaa] Sudden 522 brain-numbness - URGENT response
> appreciated
>
>
>
>
>
> Claim $10 of (b)(5) on the house and you then have an exemption that is
> impaired.
>
>
>
> _____
>
> Nikki
> Sent: Wednesday, April 27, 2011 2:53 PM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Sudden 522 brain-numbness - URGENT response appreciated
>
>
>
>
>
> I'm having a little brain-numbness and client is on his way...
>
> About to file Ch 7. Property is undervalued vis a vis the two mortgage
> loans. There's also an abstract of judgment lien recorded on the residence.
>
> In Schedule B, there are some cash assets that are being protected with the
> wildcard exemption, and since no equity, I am not claiming any part of the
> wildcard for the home.
>
> After filing, when doing the 522 motion to avoid the judicial lien, since I
> am not claiming any part of the wildcard for the home, does this mean that a
> 522 would not be granted since it is not interfering with any claimed
> exemption??
>
> What am I missing?
>
> Thanks,
> Nikki
>
The post was migrated from Yahoo.
charset="US-ASCII"
Larry and Nikki:
At one time there had time to be equity in the property, then at another
time (are you catching on that I cannot remember the dates) they changed
522(f). Note that in its present form, no equity is required. There is a
specific formula in (2)(A) that determines the extent to which the lien is
impaired, which is unrelated to whether there is actually any equity in the
property.
Eg. Jmt lien 50k
1st 200k
Homestead 75k
Total 325k
FMV 180k
Extent of impairment 145k
No equity in house even without the jmt lien, but lien impairs homestead
145K per the formula, so all of jmt lien is stripped. As the FMV goes up,
then the impairment goes down, but my example is to show that even with no
equity there is impairment under the formula.
There is a case out there that stands for the proposition that 522(f) really
means what it says, but I don't remember the name of the case and often
wonder why we need cases that say 5+2=7. However, since there are judges
who go back to before the change in the code, in addition to the formula
verbatim, you should cite the case.
If you have any questions or concerns, please contact me.
Pat
Patrick T. Green, Esq.
Fitzgerald & Green
Attorneys at Law
1010 E. Union Street
Suite 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
pat@fitzgreenlaw.com
The post was migrated from Yahoo.
THANK YOU
>
> Claim $10 of (b)(5) on the house and you then have an exemption that is
> impaired.
>
>
>
> _____
>
> Nikki
> Sent: Wednesday, April 27, 2011 2:53 PM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Sudden 522 brain-numbness - URGENT response appreciated
>
>
>
>
>
> I'm having a little brain-numbness and client is on his way...
>
> About to file Ch 7. Property is undervalued vis a vis the two mortgage
> loans. There's also an abstract of judgment lien recorded on the residence.
>
> In Schedule B, there are some cash assets that are being protected with the
> wildcard exemption, and since no equity, I am not claiming any part of the
> wildcard for the home.
>
> After filing, when doing the 522 motion to avoid the judicial lien, since I
> am not claiming any part of the wildcard for the home, does this mean that a
> 522 would not be granted since it is not interfering with any claimed
> exemption??
>
> What am I missing?
>
> Thanks,
> Nikki
>
The post was migrated from Yahoo.
I'm having a little brain-numbness and client is on his way...
About to file Ch 7. Property is undervalued vis a vis the two mortgage loans. There's also an abstract of judgment lien recorded on the residence.
In Schedule B, there are some cash assets that are being protected with the wildcard exemption, and since no equity, I am not claiming any part of the wildcard for the home.
After filing, when doing the 522 motion to avoid the judicial lien, since I am not claiming any part of the wildcard for the home, does this mean that a 522 would not be granted since it is not interfering with any claimed exemption??
What am I missing?
Thanks,
Nikki
The post was migrated from Yahoo.