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Amending exemptions
Joe,
Thank you for the incredibly detailed response. It was extremely helpful. Given that the Gaswami case is so new (reopening to amend exemptions has only been allowed since Dec. 2003), I expect to have my papers looked at quite carefully.
Brian D. Wirsching
Law Offices of David A. Tilem
500 N. Brand Blvd., Suite 460
Glendale, CA 91203
Tel: 818-507-6000
Fax: 818-507-6800
To: cdcbaa@yahoogroups.com
Sent: Wednesday, August 11, 2004 5:50 PM
Subject: RE: [cdcbaa] Re: Amending exemptions
I think a little paranoia in these areas is always healthy, but you are probably safe (assuming your facts), at least with regard to the house, because the case law on irrevocability of abandonment is pretty strong (even in the unlikely event that the trustee tried to revoke its abandonment at this stage). The following 9th Circuit cases deal with the issue: In re Cusano, 264 F.3d 936 (9th Cir. 2001)(general rule is that abandonment is irrevocable, even when property is subsequently discovered to have a greater value; although revocation may be appropriate where trustee is given incomplete or false information of the asset by debtor, thereby foregoing a proper investigation of the asset); In re Devore, 223 B.R. 193, 197 (9th Cir. BAP 1998)(general rule is that abandonment is irrevocable); In re Adair, 253 B.R. 85 (9th Cir. BAP 2000); but see In re Gonzalez, 302 B.R. 687 (Bankr. CD Cal 2003)(Judge Ryan revokes abandonment of house where debtor undervalued it on schedules and trustee later found out it was worth more than double; the debtor was in the midst of a divorce and apparently listed only her half interest in the house without specifically so stating in schedules or at 341(a)). The upshot of all this is that trustee would likely have to at least show that he/she was given false or incomplete information regarding the house's value as of the petition date, and it would seem to me that's unlikely to happen. Note: no specific order of abandonment is necessary, the closing of the case effects a so-called "technical abandonment" of any scheduled, but unadministered assets. See BK Code 554(c) and In re Devore, 223 B.R. @ 198-99 (mere reopening of case and withdrawal of trustee's no-asset report not effective to bring technically abandoned asset back into estate; court must expressly revoke or set aside technical abandonment under section 554(c) to accomplish that result).
As to Corvette, no answer there; even though abandoned, I suppose a trustee could claim it was abandoned only because of an exemption that no longer exists, and try to revoke it that way. On the other hand, when you amend schedule C for purposes of your motion to avoid lien, all that will appear are the new exemptions, and trustee would have to go back to old case file and schedules to review all assets to see if something changed. I don't know how much the car is worth now, but if it's a 1989 I'm guessing it's not a classic, and how much money and effort will a trustee spend to get a used car? They rarely sell them anyway unless worth lots of money, like a classic. Moreover, even in the unlikely event the car was lost, it would seem to be a small price to pay to get rid of a $120,000 + judgment, assuming you're confident that will occur. Make sure you have a strong appraisal re value as of petition date that substantiates the original schedules.
Joseph E. Caceres, Esq.
Caceres & Shamash, LLP
8383 Wilshire Boulevard, Suite 1010
Beverly Hills, CA 90211-2409
Tel: (323) 852-1600 x 102
Fax: (323) 852-9009
E-Mail: jec@locs.com
-----Original Message-----
Sent: Wednesday, August 11, 2004 8:15 AM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Re: Amending exemptions
I would be paranoid. I saw a case a few years ago where Barr, I
think, allowed the trustee to reopen a case because the property had
gone up in value and the trustee wanted to sell it. When a case is
reopened though, the trustee is usually not reappointed unless he is
needed (or unless he asks to be reappointed).
--- In cdcbaa@yahoogroups.com, "Brian D. Wirsching"
wrote:
> The issue is not the value of the property for lien avoidance
purposes. The issue is whether, due to the possibility of the re-
appointment of the Trustee to liquidate the now non-exempt Corvette
and the possibility that the Trustee will go after the house due to
the increased value, notwithstanding the abandonment.
>
> Am I just being paranoid?
>
> Brian
> ----- Original Message -----
> To: cdcbaa@yahoogroups.com
> Sent: Monday, August 09, 2004 9:03 PM
> Subject: RE: [cdcbaa] Amending exemptions
>
>
> In lien avoidance value is as of the petition date, not present
value.
> CS
>
> Charles Shamash, Esq.
> Caceres & Shamash, LLP
> 8383 Wilshire Boulevard, Suite 1010
> Beverly Hills, CA 90211-2409
> Phone: (323) 852-1600 X 101
> Facsimile: (323) 852-9009
>
>
> -----Original Message-----
> Sent: Monday, August 09, 2004 10:48 AM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Amending exemptions
>
> Question for the group:
>
> Client had judgment entered against him in 1998 for $120,000 an
> abstract of which was recorded. Client filed Ch 7 in 2000. At
time
> of filing, Client and spouse owned a home worth $185,000 which
had
> two mortgages totaling $120,000. Client also owned a 1989
Corvette
> worth $12,000.
>
> Client claimed 703 exemptions, fully exempted the Corvette and
took
> only $1,000 exemption on the house. Ch 7 trustee filed no asset
> report, client received discharge and case closed. No specific
order
> re abandonment of property to debtor.
>
> Client now wants to avoid the judgment lien to refi. Home is
now
> worth $485,000 and Client still has the Corvette.
>
> Under In re Goswami 304 b.r. 386, debtors may now reopen to
amend
> exemption schedule after case closes. However, by switching
from 703
> to 704 to claim homestead, Corvetee is not protected. Client
fears
> Ch 7 Trustee may be appointed to administer Corvette and try to
undo
> abandonment of the house. Presently, there would be nonexempt
equity
> of about $95,000 after payment of deeds of trust, abstracted
> judgments and Client's homestead.
>
> As Goswami is such a new case, there are no reported decisions
on
> what happens where exemptions are amended to make an asset
available
> for liquidation.
>
> Any suggestions on the uncertainty posed by reopening???
>
>
>
>
>
> Yahoo! Groups Links
>
>
>
>
>
>
>
>
>
> Yahoo! Groups Sponsor
> ADVERTISEMENT
>
>
>
>
>
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The post was migrated from Yahoo.
Joe,
Thanks for the cites. If anyone reopens a case, the motion to reopen
has to be precise. Do not file a general motion.
Make sure the order reopening is specific, i.e. "reopen to amend
exemptions" or, "reopen to avoid a lien",
this limiting language will only allow what you want done to occur
without another motion.
dennis
The post was migrated from Yahoo.
One of the best responses I've ever read!
Mark Kim
> I think a little paranoia in these areas is always
> healthy, but you are
> probably safe (assuming your facts), at least with
> regard to the house,
> because the case law on irrevocability of
> abandonment is pretty strong
> (even in the unlikely event that the trustee tried
> to revoke its
> abandonment at this stage). The following 9th
> Circuit cases deal with
> the issue: In re Cusano, 264 F.3d 936 (9th Cir.
> 2001)(general rule is
> that abandonment is irrevocable, even when property
> is subsequently
> discovered to have a greater value; although
> revocation may be
> appropriate where trustee is given incomplete or
> false information of
> the asset by debtor, thereby foregoing a proper
> investigation of the
> asset); In re Devore, 223 B.R. 193, 197 (9th Cir.
> BAP 1998)(general rule
> is that abandonment is irrevocable); In re Adair,
> 253 B.R. 85 (9th Cir.
> BAP 2000); but see In re Gonzalez, 302 B.R. 687
> (Bankr. CD Cal
> 2003)(Judge Ryan revokes abandonment of house where
> debtor undervalued
> it on schedules and trustee later found out it was
> worth more than
> double; the debtor was in the midst of a divorce and
> apparently listed
> only her half interest in the house without
> specifically so stating in
> schedules or at 341(a)). The upshot of all this is
> that trustee would
> likely have to at least show that he/she was given
> false or incomplete
> information regarding the houses value as of the
> petition date, and it
> would seem to me thats unlikely to happen. Note:
> no specific order of
> abandonment is necessary, the closing of the case
> effects a so-called
> technical abandonment of any scheduled, but
> unadministered assets.
> See BK Code 554(c) and In re Devore, 223 B.R. @
> 198-99 (mere reopening
> of case and withdrawal of trustee's no-asset report
> not effective to
> bring technically abandoned asset back into estate;
> court must expressly
> revoke or set aside technical abandonment under
> section 554(c) to
> accomplish that result).
>
> As to Corvette, no answer there; even though
> abandoned, I suppose a
> trustee could claim it was abandoned only because of
> an exemption that
> no longer exists, and try to revoke it that way. On
> the other hand,
> when you amend schedule C for purposes of your
> motion to avoid lien, all
> that will appear are the new exemptions, and trustee
> would have to go
> back to old case file and schedules to review all
> assets to see if
> something changed. I dont know how much the car is
> worth now, but if
> its a 1989 Im guessing its not a classic, and how
> much money and
> effort will a trustee spend to get a used car? They
> rarely sell them
> anyway unless worth lots of money, like a classic.
> Moreover, even in
> the unlikely event the car was lost, it would seem
> to be a small price
> to pay to get rid of a $120,000 + judgment, assuming
> youre confident
> that will occur. Make sure you have a strong
> appraisal re value as of
> petition date that substantiates the original
> schedules.
>
>
> Joseph E. Caceres, Esq.
> Caceres & Shamash, LLP
> 8383 Wilshire Boulevard, Suite 1010
> Beverly Hills, CA 90211-2409
> Tel: (323) 852-1600 x 102
> Fax: (323) 852-9009
> E-Mail: jec@locs.com
>
> -----Original Message-----
> Sent: Wednesday, August 11, 2004 8:15 AM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Re: Amending exemptions
>
> I would be paranoid. I saw a case a few years ago
> where Barr, I
> think, allowed the trustee to reopen a case because
> the property had
> gone up in value and the trustee wanted to sell it.
> When a case is
> reopened though, the trustee is usually not
> reappointed unless he is
> needed (or unless he asks to be reappointed).
>
>
> --- In cdcbaa@yahoogroups.com, "Brian D. Wirsching"
> wrote:
> > The issue is not the value of the property for
> lien avoidance
> purposes. The issue is whether, due to the
> possibility of the re-
> appointment of the Trustee to liquidate the now
> non-exempt Corvette
> and the possibility that the Trustee will go after
> the house due to
> the increased value, notwithstanding the
> abandonment.
> >
> > Am I just being paranoid?
> >
> > Brian
> > ----- Original Message -----
> > To: cdcbaa@yahoogroups.com
> > Sent: Monday, August 09, 2004 9:03 PM
> > Subject: RE: [cdcbaa] Amending exemptions
> >
> >
> > In lien avoidance value is as of the petition
> date, not present
> value.
> > CS
> >
> > Charles Shamash, Esq.
> > Caceres & Shamash, LLP
> > 8383 Wilshire Boulevard, Suite 1010
> > Beverly Hills, CA 90211-2409
> > Phone: (323) 852-1600 X 101
> > Facsimile: (323) 852-9009
> >
> >
> > -----Original Message-----
> [mailto:brianwirsching@t...]
> > Sent: Monday, August 09, 2004 10:48 AM
> > To: cdcbaa@yahoogroups.com
> > Subject: [cdcbaa] Amending exemptions
> >
> > Question for the group:
> >
> > Client had judgment entered against him in 1998
> for $120,000 an
> > abstract of which was recorded. Client filed Ch
> 7 in 2000. At
> time
> > of filing, Client and spouse owned a home worth
> $185,000 which
> had
> > two mortgages totaling $120,000. Client also
> owned a 1989
> Corvette
> > worth $12,000.
> >
> > Client claimed 703 exemptions, fully exempted
> the Corvette and
> took
> > only $1,000 exemption on the house. Ch 7
> trustee filed no asset
> > report, client received discharge and case
> closed. No specific
> order
> > re abandonment of property to debtor.
> >
> > Client now wants to avoid the judgment lien to
> refi. Home is
> now
> > worth $485,000 and Client still has the
> Corvette.
> >
> > Under In re Goswami 304 b.r. 386, debtors may
> now reopen to
> amend
> > exemption schedule after case closes. However,
> by switching
> from 703
> > to 704 to claim homestead, Corvetee is not
> protected. Client
> fears
> > Ch 7 Trustee may be appointed to administer
> Corvette and try to
> undo
> > abandonment of the house. Presently, there
> would be nonexempt
> equity
> > of about $95,000 after payment of deeds of
> trust,
If you have received this communication in error, please immediately notify us by telephone at (213)252-2224 and return the original message to: Law Offices of Kim & Wilhelm, 3600 Wilshire Boulevard, Suite 1220, Los Angeles, CA 90010. This communication may contain privileged information which is not to be disseminated.
The post was migrated from Yahoo.
I think a little paranoia in these areas is always healthy, but you are
probably safe (assuming your facts), at least with regard to the house,
because the case law on irrevocability of abandonment is pretty strong
(even in the unlikely event that the trustee tried to revoke its
abandonment at this stage). The following 9th Circuit cases deal with
the issue: In re Cusano, 264 F.3d 936 (9th Cir. 2001)(general rule is
that abandonment is irrevocable, even when property is subsequently
discovered to have a greater value; although revocation may be
appropriate where trustee is given incomplete or false information of
the asset by debtor, thereby foregoing a proper investigation of the
asset); In re Devore, 223 B.R. 193, 197 (9th Cir. BAP 1998)(general rule
is that abandonment is irrevocable); In re Adair, 253 B.R. 85 (9th Cir.
BAP 2000); but see In re Gonzalez, 302 B.R. 687 (Bankr. CD Cal
2003)(Judge Ryan revokes abandonment of house where debtor undervalued
it on schedules and trustee later found out it was worth more than
double; the debtor was in the midst of a divorce and apparently listed
only her half interest in the house without specifically so stating in
schedules or at 341(a)). The upshot of all this is that trustee would
likely have to at least show that he/she was given false or incomplete
information regarding the houses value as of the petition date, and it
would seem to me thats unlikely to happen. Note: no specific order of
abandonment is necessary, the closing of the case effects a so-called
See BK Code 554(c) and In re Devore, 223 B.R. @ 198-99 (mere reopening
of case and withdrawal of trustee's no-asset report not effective to
bring technically abandoned asset back into estate; court must expressly
revoke or set aside technical abandonment under section 554(c) to
accomplish that result).
As to Corvette, no answer there; even though abandoned, I suppose a
trustee could claim it was abandoned only because of an exemption that
no longer exists, and try to revoke it that way. On the other hand,
when you amend schedule C for purposes of your motion to avoid lien, all
that will appear are the new exemptions, and trustee would have to go
back to old case file and schedules to review all assets to see if
something changed. I dont know how much the car is worth now, but if
its a 1989 Im guessing its not a classic, and how much money and
effort will a trustee spend to get a used car? They rarely sell them
anyway unless worth lots of money, like a classic. Moreover, even in
the unlikely event the car was lost, it would seem to be a small price
to pay to get rid of a $120,000 + judgment, assuming youre confident
that will occur. Make sure you have a strong appraisal re value as of
petition date that substantiates the original schedules.
Joseph E. Caceres, Esq.
Caceres & Shamash, LLP
8383 Wilshire Boulevard, Suite 1010
Beverly Hills, CA 90211-2409
Tel: (323) 852-1600 x 102
Fax: (323) 852-9009
E-Mail: jec@locs.com
Sent: Wednesday, August 11, 2004 8:15 AM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Re: Amending exemptions
I would be paranoid. I saw a case a few years ago where Barr, I
think, allowed the trustee to reopen a case because the property had
gone up in value and the trustee wanted to sell it. When a case is
reopened though, the trustee is usually not reappointed unless he is
needed (or unless he asks to be reappointed).
wrote:
> The issue is not the value of the property for lien avoidance
purposes. The issue is whether, due to the possibility of the re-
appointment of the Trustee to liquidate the now non-exempt Corvette
and the possibility that the Trustee will go after the house due to
the increased value, notwithstanding the abandonment.
>
> Am I just being paranoid?
>
> Brian
> ----- Original Message -----
> To: cdcbaa@yahoogroups.com
> Sent: Monday, August 09, 2004 9:03 PM
> Subject: RE: [cdcbaa] Amending exemptions
>
>
> In lien avoidance value is as of the petition date, not present
value.
> CS
>
> Charles Shamash, Esq.
> Caceres & Shamash, LLP
> 8383 Wilshire Boulevard, Suite 1010
> Beverly Hills, CA 90211-2409
> Phone: (323) 852-1600 X 101
> Facsimile: (323) 852-9009
>
>
> -----Original Message-----
> Sent: Monday, August 09, 2004 10:48 AM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Amending exemptions
>
> Question for the group:
>
> Client had judgment entered against him in 1998 for $120,000 an
> abstract of which was recorded. Client filed Ch 7 in 2000. At
time
> of filing, Client and spouse owned a home worth $185,000 which
had
> two mortgages totaling $120,000. Client also owned a 1989
Corvette
> worth $12,000.
>
> Client claimed 703 exemptions, fully exempted the Corvette and
took
> only $1,000 exemption on the house. Ch 7 trustee filed no asset
> report, client received discharge and case closed. No specific
order
> re abandonment of property to debtor.
>
> Client now wants to avoid the judgment lien to refi. Home is
now
> worth $485,000 and Client still has the Corvette.
>
> Under In re Goswami 304 b.r. 386, debtors may now reopen to
amend
> exemption schedule after case closes. However, by switching
from 703
> to 704 to claim homestead, Corvetee is not protected. Client
fears
> Ch 7 Trustee may be appointed to administer Corvette and try to
undo
> abandonment of the house. Presently, there would be nonexempt
equity
> of about $95,000 after payment of deeds of trust, abstracted
> judgments and Client's homestead.
>
> As Goswami is such a new case, there are no reported decisions
on
> what happens where exemptions are amended to make an asset
available
> for liquidation.
>
> Any suggestions on the uncertainty posed by reopening???
>
>
>
>
>
> Yahoo! Groups Links
>
>
>
>
>
>
>
>
>
> Yahoo! Groups Sponsor
> ADVERTISEMENT
>
>
>
>
>
> -------------------------------------------------------------------
> Yahoo! Groups Links
>
> a.. To visit your group on the web, go to:
> http://groups.yahoo.com/group/cdcbaa/
>
> b.. To unsubscribe from this group, send an email to:
> cdcbaa-unsubscribe@yahoogroups.com
>
> c.. Your use of Yahoo! Groups is subject to the Yahoo! Terms
of Service.
Yahoo! Groups Links
The post was migrated from Yahoo.
I would be paranoid. I saw a case a few years ago where Barr, I
think, allowed the trustee to reopen a case because the property had
gone up in value and the trustee wanted to sell it. When a case is
reopened though, the trustee is usually not reappointed unless he is
needed (or unless he asks to be reappointed).
wrote:
> The issue is not the value of the property for lien avoidance
purposes. The issue is whether, due to the possibility of the re-
appointment of the Trustee to liquidate the now non-exempt Corvette
and the possibility that the Trustee will go after the house due to
the increased value, notwithstanding the abandonment.
>
> Am I just being paranoid?
>
> Brian
> ----- Original Message -----
> To: cdcbaa@yahoogroups.com
> Sent: Monday, August 09, 2004 9:03 PM
> Subject: RE: [cdcbaa] Amending exemptions
>
>
> In lien avoidance value is as of the petition date, not present
value.
> CS
>
> Charles Shamash, Esq.
> Caceres & Shamash, LLP
> 8383 Wilshire Boulevard, Suite 1010
> Beverly Hills, CA 90211-2409
> Phone: (323) 852-1600 X 101
> Facsimile: (323) 852-9009
>
>
> -----Original Message-----
> Sent: Monday, August 09, 2004 10:48 AM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Amending exemptions
>
> Question for the group:
>
> Client had judgment entered against him in 1998 for $120,000 an
> abstract of which was recorded. Client filed Ch 7 in 2000. At
time
> of filing, Client and spouse owned a home worth $185,000 which
had
> two mortgages totaling $120,000. Client also owned a 1989
Corvette
> worth $12,000.
>
> Client claimed 703 exemptions, fully exempted the Corvette and
took
> only $1,000 exemption on the house. Ch 7 trustee filed no asset
> report, client received discharge and case closed. No specific
order
> re abandonment of property to debtor.
>
> Client now wants to avoid the judgment lien to refi. Home is
now
> worth $485,000 and Client still has the Corvette.
>
> Under In re Goswami 304 b.r. 386, debtors may now reopen to
amend
> exemption schedule after case closes. However, by switching
from 703
> to 704 to claim homestead, Corvetee is not protected. Client
fears
> Ch 7 Trustee may be appointed to administer Corvette and try to
undo
> abandonment of the house. Presently, there would be nonexempt
equity
> of about $95,000 after payment of deeds of trust, abstracted
> judgments and Client's homestead.
>
> As Goswami is such a new case, there are no reported decisions
on
> what happens where exemptions are amended to make an asset
available
> for liquidation.
>
> Any suggestions on the uncertainty posed by reopening???
>
>
>
>
>
> Yahoo! Groups Links
>
>
>
>
>
>
>
>
>
> Yahoo! Groups Sponsor
> ADVERTISEMENT
>
>
>
>
>
> -------------------------------------------------------------------
> Yahoo! Groups Links
>
> a.. To visit your group on the web, go to:
> http://groups.yahoo.com/group/cdcbaa/
>
> b.. To unsubscribe from this group, send an email to:
> cdcbaa-unsubscribe@yahoogroups.com
>
> c.. Your use of Yahoo! Groups is subject to the Yahoo! Terms
of Service.
The post was migrated from Yahoo.
a cite, but look for 349 cases on the effect of
abandonment. You will find in a reopened case, the
previously abandoned property does not become property
of the reopened case, the only property which can be
property of the estate is unadministered property,
i.e. property the debtor hid, or didn't list by
accident, etc.
dennis
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The post was migrated from Yahoo.
I agree with Brian. These are real possibilities!
Joseph Ore
debtesq@aol.com
I agree with Brian. These are real possibilities!
Joseph Ore
debtesq@aol.com
The post was migrated from Yahoo.
No, you're note being paranoid. I thought your question was excellent and was looking forward to others' responses. I unfortunately do not have the answer.
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----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Tuesday, August 10, 2004 1:19 PM
Subject: Re: [cdcbaa] Amending exemptions
The issue is not the value of the property for lien avoidance purposes. The issue is whether, due to the possibility of the re-appointment of the Trustee to liquidate the now non-exempt Corvette and the possibility that the Trustee will go after the house due to the increased value, notwithstanding the abandonment.
Am I just being paranoid?
Brian
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Monday, August 09, 2004 9:03 PM
Subject: RE: [cdcbaa] Amending exemptions
In lien avoidance value is as of the petition date, not present value.
CS
Charles Shamash, Esq.
Caceres & Shamash, LLP
8383 Wilshire Boulevard, Suite 1010
Beverly Hills, CA 90211-2409
Phone: (323) 852-1600 X 101
Facsimile: (323) 852-9009
-----Original Message-----
Sent: Monday, August 09, 2004 10:48 AM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Amending exemptions
Question for the group:
Client had judgment entered against him in 1998 for $120,000 an
abstract of which was recorded. Client filed Ch 7 in 2000. At time
of filing, Client and spouse owned a home worth $185,000 which had
two mortgages totaling $120,000. Client also owned a 1989 Corvette
worth $12,000.
Client claimed 703 exemptions, fully exempted the Corvette and took
only $1,000 exemption on the house. Ch 7 trustee filed no asset
report, client received discharge and case closed. No specific order
re abandonment of property to debtor.
Client now wants to avoid the judgment lien to refi. Home is now
worth $485,000 and Client still has the Corvette.
Under In re Goswami 304 b.r. 386, debtors may now reopen to amend
exemption schedule after case closes. However, by switching from 703
to 704 to claim homestead, Corvetee is not protected. Client fears
Ch 7 Trustee may be appointed to administer Corvette and try to undo
abandonment of the house. Presently, there would be nonexempt equity
of about $95,000 after payment of deeds of trust, abstracted
judgments and Client's homestead.
As Goswami is such a new case, there are no reported decisions on
what happens where exemptions are amended to make an asset available
for liquidation.
Any suggestions on the uncertainty posed by reopening???
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No, you're note being paranoid. I
thought your question was excellent and was looking forward to others'
responses. I unfortunately do not have the answer.
***********************************************Mark J. MarkusLaw
Office of Mark J. Markus11684 Ventura Blvd. PMB #403Studio City, CA91604-2652(818)509-1173(818)509-1460 (fax)e-mail: bklawr@bklaw.comweb:
The post was migrated from Yahoo.
The issue is not the value of the property for lien avoidance purposes. The issue is whether, due to the possibility of the re-appointment of the Trustee to liquidate the now non-exempt Corvette and the possibility that the Trustee will go after the house due to the increased value, notwithstanding the abandonment.
Am I just being paranoid?
Brian
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Monday, August 09, 2004 9:03 PM
Subject: RE: [cdcbaa] Amending exemptions
In lien avoidance value is as of the petition date, not present value.
CS
Charles Shamash, Esq.
Caceres & Shamash, LLP
8383 Wilshire Boulevard, Suite 1010
Beverly Hills, CA 90211-2409
Phone: (323) 852-1600 X 101
Facsimile: (323) 852-9009
-----Original Message-----
Sent: Monday, August 09, 2004 10:48 AM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Amending exemptions
Question for the group:
Client had judgment entered against him in 1998 for $120,000 an
abstract of which was recorded. Client filed Ch 7 in 2000. At time
of filing, Client and spouse owned a home worth $185,000 which had
two mortgages totaling $120,000. Client also owned a 1989 Corvette
worth $12,000.
Client claimed 703 exemptions, fully exempted the Corvette and took
only $1,000 exemption on the house. Ch 7 trustee filed no asset
report, client received discharge and case closed. No specific order
re abandonment of property to debtor.
Client now wants to avoid the judgment lien to refi. Home is now
worth $485,000 and Client still has the Corvette.
Under In re Goswami 304 b.r. 386, debtors may now reopen to amend
exemption schedule after case closes. However, by switching from 703
to 704 to claim homestead, Corvetee is not protected. Client fears
Ch 7 Trustee may be appointed to administer Corvette and try to undo
abandonment of the house. Presently, there would be nonexempt equity
of about $95,000 after payment of deeds of trust, abstracted
judgments and Client's homestead.
As Goswami is such a new case, there are no reported decisions on
what happens where exemptions are amended to make an asset available
for liquidation.
Any suggestions on the uncertainty posed by reopening???
Yahoo! Groups Links
Yahoo! Groups Sponsor
ADVERTISEMENT
Yahoo! Groups Links
a.. To visit your group on the web, go to:
http://groups.yahoo.com/group/cdcbaa/
b.. To unsubscribe from this group, send an email to:
cdcbaa-unsubscribe@yahoogroups.com
c.. Your use of Yahoo! Groups is subject to the Yahoo! Terms of Service.
The issue is not the value of the property for lien
avoidance purposes. The issue is whether, due to the possibility of the
re-appointment of the Trustee to liquidate the now non-exempt Corvette and the
possibility that the Trustee will go after the house due to the increased value,
notwithstanding the abandonment.
Am I just being paranoid?
Brian
----- Original Message -----
From:
Charles Shamash, Esq.
To: cdcbaa@yahoogroups.com
Sent: Monday, August 09, 2004 9:03 PM
Subject: RE: [cdcbaa] Amending
exemptions
In lien avoidance value is as of the petition date, not
present value.CSCharles Shamash, Esq.Caceres & Shamash,
LLP8383 Wilshire Boulevard, Suite 1010Beverly Hills, CA
90211-2409Phone: (323) 852-1600 X 101Facsimile: (323) [mailto:brianwirsching@tilemlaw.com] Sent: Monday, August 09, 2004 10:48
AMTo: cdcbaa@yahoogroups.comSubject: [cdcbaa] Amending
exemptionsQuestion for the group:Client had judgment entered
against him in 1998 for $120,000 an abstract of which was recorded.
Client filed Ch 7 in 2000. At time of filing, Client and spouse owned a home worth $185,000 which had two mortgages totaling
$120,000. Client also owned a 1989 Corvette worth
$12,000.Client claimed 703 exemptions, fully exempted the Corvette and
took only $1,000 exemption on the house. Ch 7 trustee filed no asset
report, client received discharge and case closed. No specific order
re abandonment of property to debtor.Client now wants to avoid the
judgment lien to refi. Home is now worth $485,000 and Client still
has the Corvette. Under In re Goswami 304 b.r. 386, debtors may
now reopen to amend exemption schedule after case closes. However,
by switching from 703 to 704 to claim homestead, Corvetee is not
protected. Client fears Ch 7 Trustee may be appointed to administer
Corvette and try to undo abandonment of the house. Presently, there
would be nonexempt equity of about $95,000 after payment of deeds of trust, abstracted judgments and Client's homestead.As Goswami is
such a new case, there are no reported decisions on what happens where
exemptions are amended to make an asset available for
liquidation.Any suggestions on the uncertainty posed by
reopening???Yahoo! Groups
The post was migrated from Yahoo.
In lien avoidance value is as of the petition date, not present value.
CS
Charles Shamash, Esq.
Caceres & Shamash, LLP
8383 Wilshire Boulevard, Suite 1010
Beverly Hills, CA 90211-2409
Phone: (323) 852-1600 X 101
Facsimile: (323) 852-9009
Sent: Monday, August 09, 2004 10:48 AM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Amending exemptions
Question for the group:
Client had judgment entered against him in 1998 for $120,000 an
abstract of which was recorded. Client filed Ch 7 in 2000. At time
of filing, Client and spouse owned a home worth $185,000 which had
two mortgages totaling $120,000. Client also owned a 1989 Corvette
worth $12,000.
Client claimed 703 exemptions, fully exempted the Corvette and took
only $1,000 exemption on the house. Ch 7 trustee filed no asset
report, client received discharge and case closed. No specific order
re abandonment of property to debtor.
Client now wants to avoid the judgment lien to refi. Home is now
worth $485,000 and Client still has the Corvette.
Under In re Goswami 304 b.r. 386, debtors may now reopen to amend
exemption schedule after case closes. However, by switching from 703
to 704 to claim homestead, Corvetee is not protected. Client fears
Ch 7 Trustee may be appointed to administer Corvette and try to undo
abandonment of the house. Presently, there would be nonexempt equity
of about $95,000 after payment of deeds of trust, abstracted
judgments and Client's homestead.
As Goswami is such a new case, there are no reported decisions on
what happens where exemptions are amended to make an asset available
for liquidation.
Any suggestions on the uncertainty posed by reopening???
Yahoo! Groups Links
The post was migrated from Yahoo.