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Voluntary sale in Chapter 13
Where does it say the homestead exemption applies only to forced sales?
704.730(a)(3)(C) seems to imply that the other sections apply to voluntary
sales. See the last clause, "and the sale is an involuntary sale."
Sincerely,
*Michael Avanesian, Esq. *
Avanesian Law Firm
801 N. Brand Blvd., Suite #1130
Glendale, CA 91203
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On Thu, Feb 18, 2016 at 5:42 PM, Peter Lively petermlively2000@yahoo.com
[cdcbaa] wrote:
>
>
> Stella,
>
> Unless the debtor has recorded a homestead, for the debtor to be entitled
> to claim a homestead exemption, there must be a forced sale by a creditor
> outside of bankruptcy through state court or by a trustee in bankruptcy
> using state court law
>
>
> *Part 2. of Civil Actions**Title 9. Enforcement of Judgments**Div 2.
> Enforcement of Money Judgments**Ch 4. Exemptions**Art 4. Homestead
> Exemption*
>
> * 704.720. *(a) A homestead is exempt from sale under this division to
> the extent provided in Section 704.800.
>
> (b) If a homestead is sold under this division
>
> Sent from my iPhone - please excuse typos.
> Thank you.
>
> On Feb 18, 2016, at 5:12 PM, havkinlaw@earthlink.net [cdcbaa] cdcbaa@yahoogroups.com> wrote:
>
>
>
> I know Nick discussed the situation in Riverside with Ron Danielson taking
> the position that the homestead proceeds belong to the estate in the Debtor
> sells while in a Chapter 13. Has anyone heard whether Liz Rojas is taking
> the same position? Also, in my case, my debtor owns 1/3 of the property
> with her parents owing the other 2/3. They are forcing her to sell. Would
> this qualify as an involuntary sale?
>
>
> Stella
>
>
>
Where does it say the homestead exemption applies only to forced sales?704.730(a)(3)(C) seems to imply that the other sections apply to voluntary sales. See the last clause, "and the sale is an involuntary sale."
The post was migrated from Yahoo.
Be careful, I think in Burgie the BAP ignored 1306(a)(1) and only focused on 1306(a)(2). I believe that most bankruptcy courts will agree that postpetition property passes through 541 via 1306(a)(1) and without an exemption under 541 it gets trapped in the estate and is low hanging fruit for a 1329 motion by the trustee.
The following is an excerpt from http://coxlawgroup.com/inheritances-rec ... ankruptcy/
The definition of property of the estate in a Chapter 13 case is broader than 541s definition of property of the estate. Pursuant to 11 U.S.C. 1306, property of the estate in a Chapter 13 case includes the following, in addition to the property specified in 541:
(1) all property of the kind specified in such section [ 541] that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter 7, 11, or 12 of this title, whichever occurs first[.]
11 U.S.C. 1306(a)(1). Section 1327 returns some property of the estate to the debtor upon confirmation of the plan: Except as otherwise provided in the plan or the order confirming the plan, the confirmation of a plan vests all of the property of the estate in the debtor. Id. 1327(b). Unless the plan or confirmation order states otherwise, the property vesting in the debtor under subsection (b) of this section is free and clear of any claim or interest of any creditor provided for by the plan, id. 1327(c), and the debtor shall remain in possession of all property of the estate under 1306(b).
Our form plan doesn't vest property in the debtor until after all plan payments, Right? 1327(c) is subject to the "except as otherwise provided in the plan or in the order confirming the plan..."
I typically look for dismissal and debt settlement opportunities when a client is facing this dilemma.
Best regards
Peter
Sent from my iPhone - please excuse typos.
Thank you.
> On Feb 18, 2016, at 7:30 PM, Larry Simons larry@lsimonslaw.com [cdcbaa] wrote:
>
> I will be arguing the Burgie case in support of my position
>
> Sent from my iPhone
>
> On Feb 18, 2016, at 7:28 PM, Larry Simons larry@lsimonslaw.com [cdcbaa] wrote:
>
>>
>> Rojas office recently told me they were enforcing the Jacobson 6 month reinvestment
>>
>> Sent from my iPhone
>>
>> On Feb 18, 2016, at 5:42 PM, Peter Lively petermlively2000@yahoo.com [cdcbaa] wrote:
>>
>>>
>>> Stella,
>>>
>>> Unless the debtor has recorded a homestead, for the debtor to be entitled to claim a homestead exemption, there must be a forced sale by a creditor outside of bankruptcy through state court or by a trustee in bankruptcy using state court law
>>>
>>>
>>> Part 2. of Civil Actions
>>> Title 9. Enforcement of Judgments
>>> Div 2. Enforcement of Money Judgments
>>> Ch 4. Exemptions
>>> Art 4. Homestead Exemption
>>> 704.720. (a) A homestead is exempt from sale under this division to the extent provided in Section 704.800.
>>> (b) If a homestead is sold under this division
>>> Sent from my iPhone - please excuse typos.
>>> Thank you.
>>>
>>> On Feb 18, 2016, at 5:12 PM, havkinlaw@earthlink.net [cdcbaa] wrote:
>>>
>>>>
>>>>
>>>> I know Nick discussed the situation in Riverside with Ron Danielson taking the position that the homestead proceeds belong to the estate in the Debtor sells while in a Chapter 13. Has anyone heard whether Liz Rojas is taking the same position? Also, in my case, my debtor owns 1/3 of the property with her parents owing the other 2/3. They are forcing her to sell. Would this qualify as an involuntary sale?
>>>>
>>>>
>>>> Stella
>>>>
>
>
The post was migrated from Yahoo.
I will be arguing the Burgie case in support of my position
Sent from my iPhone
On Feb 18, 2016, at 7:28 PM, Larry Simons larry@lsimonslaw.com [cdcbaa] wrote:
Rojas office recently told me they were enforcing the Jacobson 6 month reinvestment
Sent from my iPhone
On Feb 18, 2016, at 5:42 PM, Peter Lively petermlively2000@yahoo.com [cdcbaa] wrote:
Stella,
Unless the debtor has recorded a homestead, for the debtor to be entitled to claim a homestead exemption, there must be a forced sale by a creditor outside of bankruptcy through state court or by a trustee in bankruptcy using state court law
Part 2. of Civil Actions
Title 9. Enforcement of Judgments
Div 2. Enforcement of Money Judgments
Ch 4. Exemptions
Art 4. Homestead Exemption
extent provided in Section 704.800.
(b) If a homestead is sold under this division
Sent from my iPhone - please excuse typos.
Thank you.
On Feb 18, 2016, at 5:12 PM, havkinlaw@earthlink.net [cdcbaa] wrote:
I know Nick discussed the situation in Riverside with Ron Danielson taking the position that the homestead proceeds belong to the estate in the Debtor sells while in a Chapter 13. Has anyone heard whether Liz Rojas is taking the same position? Also, in my case, my debtor owns 1/3 of the property with her parents owing the other 2/3. They are forcing her to sell. Would this qualify as an involuntary sale?
Stella
I will be arguing the Burgie case in support of my position
Sent from my iPhone
On Feb 18, 2016, at 7:28 PM, Larry Simons larry@lsimonslaw.com [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
Rojas office recently told me they were enforcing the Jacobson 6 month reinvestment
Sent from my iPhone
On Feb 18, 2016, at 5:42 PM, Peter Lively
petermlively2000@yahoo.com [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
Stella,
Unless the debtor has recorded a homestead, for the debtor to be entitled to claim a homestead exemption, there must be a forced sale by a creditor outside of bankruptcy through state court or by a trustee in bankruptcy using state
court law
Part 2. of Civil Actions
Title 9. Enforcement of Judgments
Div 2. Enforcement of Money Judgments
Ch 4. Exemptions
Art 4. Homestead Exemption
704.720. (a) A homestead is exempt from sale under this division to the extent provided in Section 704.800.
(b) If a homestead is sold under this division
Sent from my iPhone - please excuse typos.
Thank you.
On Feb 18, 2016, at 5:12 PM, havkinlaw@earthlink.net [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
I know Nick discussed the situation in Riverside with Ron Danielson taking the position that the homestead proceeds belong to the estate in the Debtor sells while in a Chapter 13. Has anyone heard whether Liz Rojas is taking the same position? Also, in
my case, my debtor owns 1/3 of the property with her parents owing the other 2/3. They are forcing her to sell. Would this qualify as an involuntary sale?
Stella
The post was migrated from Yahoo.
Rojas office recently told me they were enforcing the Jacobson 6 month reinvestment
Sent from my iPhone
On Feb 18, 2016, at 5:42 PM, Peter Lively petermlively2000@yahoo.com [cdcbaa] wrote:
Stella,
Unless the debtor has recorded a homestead, for the debtor to be entitled to claim a homestead exemption, there must be a forced sale by a creditor outside of bankruptcy through state court or by a trustee in bankruptcy using state court law
Part 2. of Civil Actions
Title 9. Enforcement of Judgments
Div 2. Enforcement of Money Judgments
Ch 4. Exemptions
Art 4. Homestead Exemption
extent provided in Section 704.800.
(b) If a homestead is sold under this division
Sent from my iPhone - please excuse typos.
Thank you.
On Feb 18, 2016, at 5:12 PM, havkinlaw@earthlink.net [cdcbaa] wrote:
I know Nick discussed the situation in Riverside with Ron Danielson taking the position that the homestead proceeds belong to the estate in the Debtor sells while in a Chapter 13. Has anyone heard whether Liz Rojas is taking the same position? Also, in my case, my debtor owns 1/3 of the property with her parents owing the other 2/3. They are forcing her to sell. Would this qualify as an involuntary sale?
Stella
Rojas office recently told me they were enforcing the Jacobson 6 month reinvestment
Sent from my iPhone
On Feb 18, 2016, at 5:42 PM, Peter Lively
petermlively2000@yahoo.com [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
Stella,
Unless the debtor has recorded a homestead, for the debtor to be entitled to claim a homestead exemption, there must be a forced sale by a creditor outside of bankruptcy through state court or by a trustee in bankruptcy using state
court law
Part 2. of Civil Actions
Title 9. Enforcement of Judgments
Div 2. Enforcement of Money Judgments
Ch 4. Exemptions
Art 4. Homestead Exemption
704.720. (a) A homestead is exempt from sale under this division to the extent provided in Section 704.800.
(b) If a homestead is sold under this division
Sent from my iPhone - please excuse typos.
Thank you.
On Feb 18, 2016, at 5:12 PM, havkinlaw@earthlink.net [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
I know Nick discussed the situation in Riverside with Ron Danielson taking the position that the homestead proceeds belong to the estate in the Debtor sells while in a Chapter 13. Has anyone heard whether Liz Rojas is taking the same position? Also, in
my case, my debtor owns 1/3 of the property with her parents owing the other 2/3. They are forcing her to sell. Would this qualify as an involuntary sale?
Stella
The post was migrated from Yahoo.
Let me check I think she does.
Sent from my Stella Havkin's IPhone
> On Feb 18, 2016, at 5:42 PM, Peter Lively petermlively2000@yahoo.com [cdcbaa] wrote:
>
> Stella,
>
> Unless the debtor has recorded a homestead, for the debtor to be entitled to claim a homestead exemption, there must be a forced sale by a creditor outside of bankruptcy through state court or by a trustee in bankruptcy using state court law
>
>
> Part 2. of Civil Actions
> Title 9. Enforcement of Judgments
> Div 2. Enforcement of Money Judgments
> Ch 4. Exemptions
> Art 4. Homestead Exemption
> 704.720. (a) A homestead is exempt from sale under this division to the extent provided in Section 704.800.
> (b) If a homestead is sold under this division
> Sent from my iPhone - please excuse typos.
> Thank you.
>
>> On Feb 18, 2016, at 5:12 PM, havkinlaw@earthlink.net [cdcbaa] wrote:
>>
>>
>>
>> I know Nick discussed the situation in Riverside with Ron Danielson taking the position that the homestead proceeds belong to the estate in the Debtor sells while in a Chapter 13. Has anyone heard whether Liz Rojas is taking the same position? Also, in my case, my debtor owns 1/3 of the property with her parents owing the other 2/3. They are forcing her to sell. Would this qualify as an involuntary sale?
>>
>>
>>
>> Stella
>>
>
>
The post was migrated from Yahoo.
Stella,
Unless the debtor has recorded a homestead, for the debtor to be entitled to claim a homestead exemption, there must be a forced sale by a creditor outside of bankruptcy through state court or by a trustee in bankruptcy using state court law
Part 2. of Civil Actions
Title 9. Enforcement of Judgments
Div 2. Enforcement of Money Judgments
Ch 4. Exemptions
Art 4. Homestead Exemption
the extent provided in Section 704.800.
(b) If a homestead is sold under this division
Sent from my iPhone - please excuse typos.
Thank you.
> On Feb 18, 2016, at 5:12 PM, havkinlaw@earthlink.net [cdcbaa] wrote:
>
> I know Nick discussed the situation in Riverside with Ron Danielson taking the position that the homestead proceeds belong to the estate in the Debtor sells while in a Chapter 13. Has anyone heard whether Liz Rojas is taking the same position? Also, in my case, my debtor owns 1/3 of the property with her parents owing the other 2/3. They are forcing her to sell. Would this qualify as an involuntary sale?
>
>
>
> Stella
>
>
Unless the debtor has recorded a homestead, for the debtor to be entitled to claim a homestead exemption, there must be a forced sale by a creditor outside of bankruptcy through state court or by a trustee in bankruptcy using state court law Part 2. of Civil ActionsTitle 9. Enforcement of JudgmentsDiv 2. Enforcement of Money JudgmentsCh 4. ExemptionsArt 4. Homestead Exemption
The post was migrated from Yahoo.