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ADD ON QUESTION - H&W Joint Tenancy Property
Sam
sitting in court without a code, but look at 703.110
d
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Nov 9, 2013, at 10:13 AM, Michael Avanesian wrote:
>
> I don't know the actual sections that prevent double dipping but I do know you can't double dip like that. Probably the following section but I'm tired of reading about exemptions and Coliers is not around /
>
> My guess though is: 704.730(b):
> Notwithstanding any other provision of this section, the
> combined homestead exemptions of spouses on the same judgment shall
> not exceed the amount specified in paragraph (2) or (3), whichever is
> applicable, of subdivision (a), regardless of whether the spouses
> are jointly obligated on the judgment and regardless of whether the
> homestead consists of community or separate property or both.
> Notwithstanding any other provision of this article, if both spouses
> are entitled to a homestead exemption, the exemption of proceeds of
> the homestead shall be apportioned between the spouses on the basis
> of their proportionate interests in the homestead.
>
>
> Sincerely,
> Michael Avanesian
> Law Offices of David A. Tilem
> www.tilemlaw.com
> 818-507-6000
>
>
>> On Sat, Nov 9, 2013 at 7:41 AM, wrote:
>>
>> I'm not sure my last post went through - so forgive any redundancy. Again - if one spouse can file and bring 1/2 joint tenancy property into estate and then homestead, why can't the other spouse file a separate case and do the same - thereby effectively doubling the homestead?
>>
>>
>>
>> ---In cdcbaa@yahoogroups.com, wrote:
>>
>> Typical divorce fatigue. He has adult disabled son that has 24 hour care in home. Wife wants to keep house. Her disso attorney just served him with Rogs and Discovery for docs going back 15 years - so either disso attorney is being overbroad, or my potential debtor is hiding things he's not telling me about - but he's worn out. He thinks "I give" you keep house, I won't exempt - as if that will give Wife more $ -- file BK and creditors will go away. I told him it won't work like that. And what I didn't tell him is, we need to slow down - he only seems to be able to absob 'so much' each time he visits but he is forthright with documents and I don't see any hiding of $$. He feels that by giving in, she'll get house and equity to have asset and to keep disabled son in place, no changes. Problem is, house is falling down, literally, no one is really taking care of it and ... Debtor keeps changing his story when he walks in my office, not "story" but strategy based on emotion. If that all makes sense. But not exempting and just giving in never makes sense to me regardless of law. I have to keep my eye on both law and his rollercoaster emotion strategies - keeps throwing curves at me.
>>
>>
>>
>> ---In cdcbaa@yahoogroups.com, wrote:
>>
>> What confuses me is why does he not want the exemption? How does he think he will benefit from that?
>>
>> I love the Beverly case because it taught me what people mean when they say pig and hog and it showed me that just being technically correct (as Dennis was) is not going to win it all the time.
>>
>> http://scholar.google.com/scholar_case? ... as_sdt2006
>>
>>
>>
>> Sincerely,
>> Michael Avanesian
>> Law Offices of David A. Tilem
>> www.tilemlaw.com
>> 818-507-6000
>>
>>
>> On Fri, Nov 8, 2013 at 4:42 PM, Larry Simons wrote:
>>
>> Ask Dennis to explain In re Beverly to you.
>>
>>
>>
f SandraNutt1234@...
>> Sent: Friday, November 08, 2013 4:17 PM
>> To: cdcbaa@yahoogroups.com
>> Subject: [cdcbaa] ADD ON QUESTION - RE: H&W Joint Tenancy Property
>>
>>
>>
>>
>>
>> I have client who is in the middle of divorce. Home has $320K-400K equity. Bills are $60K unsecured debt. Wife wants home and husband to pay bills (husband is unemployed). She allegedly works "under the table" and receives support from CA for adult disabled son. She does not want to sell home but cannot refi b/c of bad credit.
>>
>>
>>
>> Now, husband asks ... "What if" - I hate those "what if" questions.
>>
>>
>>
>> What if he files CH.7 and DOES NOT CLAIM AN EXEMPTION. Isn't that malpractice on my part? I can't let a client dictate such a stance that is entirely against his interests?
>>
>>
>>
>> Then he changes it again - What if we settle - he and wife and she keeps house and he gives up all community property that he's entitled to - then he files?
>>
>>
>>
>> Will it be a preference?
>>
>>
>>
>> He's not hiding as sets, he's not in collusion with her, he wants to get remarried. He just wants out. But if I were to put a home in bankruptcy with approximately $400K equity - and not exempt his portion of his 50% ... makes me nervous. I even told him he doesn't need to file but he doesn't want the liens on the home, etc. He's trying to preserve the asset for his son - hoping the Trustee will sell the home and they'll be better off with what is left over to buy a condo than letting the creditors put liens on home, etc. Neither party is paying creditors now.
>>
>>
>>
>> Would a divorce settlement be seen as a preference? 11 547(b)(4)(B) - she's in "insider" and (5)(A) yes? but not if it's a divorce settlement? ?? (5)(B) YES;
>>
>>
>>
>> NOT Avoidable: (5)(B)(7) "to the extent such transfer was a bona fide payment of a debt for a domestic support obli gation;"
>>
>>
>>
>> I'm kind of going in circles and not even getting to the potential bad faith issues. Can someone please give me guidance?
>>
>>
>>
>> Thank you,
>>
>> Sandy
>>
>>
>>
>>
>>
>>
>>
>> ---In cdcbaa@yahoogroups.com, wrote:
>>
>> I am hoping that someone can confirm my understanding on this issue in California. I am reading In re Reed 89 BR 100 to say that where a married debtor files a solo bankruptcy, only the Debtor's half of a home held in Joint Tenancy (with the nonfiling spouse) is property of the estate. Further, that you take the gross value of the home, deduct the encumbrances, and take 1/2 of the net equity as the value to the bankruptcy estate. Then the Debtor's homestead can be claimed on that 1/2 of the equity - leaving the spouse's 1/2 of the equity compl etely outside of the estate. Is this accurate?? If so, should I be concerned that a chapter 7 trustee could try to recategorize the JT as community property and bring it all into the estate? Thanks for any insight - I'm having trouble with this concept.
>>
>
>
The post was migrated from Yahoo.
Sandra:
No, that is not the cite. Here it is.
551 F.3d 1092 (2008)
In re William J. BEVERLY, Debtor,
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Nov 8, 2013, at 5:03 PM, wrote:
>
> Thank you, do you have the citation for it?
>
> Is this it?
>
> http://caselaw.findlaw.com/ca-court-of- ... 97559.html
>
> Thanks.
>
>
>
>
>
> ---In cdcbaa@yahoogroups.com, wrote:
>
> Ask Dennis to explain In re Beverly to you.
>
>
>
>
>
>
>
> ---In cdcbaa@yahoogroups.com, wrote:
>
> I am hoping that someone can confirm my understanding on this issue in California. I am reading In re Reed 89 BR 100 to say that where a married debtor files a solo bankruptcy, only the Debtor's half of a home held in Joint Tenancy (with the nonfiling spouse) is property of the estate. Further, that you take the gross value of the home, deduct the encumbrances, and take 1/2 of the net equity as the value to the bankruptcy estate. Then the Debtor's homestead can be claimed on that 1/2 of the equity - leaving the spouse's 1/2 of the equity compl etely outside of the estate. Is this accurate?? If so, should I be concerned that a chapter 7 trustee could try to recategorize the JT as community property and bring it all into the estate? Thanks for any insight - I'm having trouble with this concept.
>
>
>
Sandra:No, that is not the cite. Here it is.551 F.3d 1092 (2008)In re William J. BEVERLY, Debtor,Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
The post was migrated from Yahoo.
Wouldn't touch this. He has fiduciary duty to wife to preserve CP assets. Everything you describe breaches that duty. In the end, he would lose his entire interest in the house if not all CP property.
Sent from iPad of
Vernon L. Ellicott, Esq.
Law Offices of Vernon L. Ellicott
(805) 446-6262 Thousand Oaks, CA
(661) 222-2922 Valencia, CA
(805) 446-6262 Fax
On Nov 8, 2013, at 4:17 PM, "SandraNutt1234@gmail.com" wrote:
I have client who is in the middle of divorce. Home has $320K-400K equity. Bills are $60K unsecured debt. Wife wants home and husband to pay bills (husband is unemployed). She allegedly works "under the table" and receives support from CA for adult disabled son. She does not want to sell home but cannot refi b/c of bad credit.
Now, husband asks ... "What if" - I hate those "what if" questions.
What if he files CH.7 and DOES NOT CLAIM AN EXEMPTION. Isn't that malpractice on my part? I can't let a client dictate such a stance that is entirely against his interests?
Then he changes it again - What if we settle - he and wife and she keeps house and he gives up all community property that he's entitled to - then he files?
Will it be a preference?
He's not hiding assets, he's not in collusion with her, he wants to get remarried. He just wants out. But if I were to put a home in bankruptcy with approximately $400K equity - and not exempt his portion of his 50% ... makes me nervous. I even told him he doesn't need to file but he doesn't want the liens on the home, etc. He's trying to preserve the asset for his son - hoping the Trustee will sell the home and they'll be better off with what is left over to buy a condo than letting the creditors put liens on home, etc. Neither party is paying creditors now.
Would a divorce settlement be seen as a preference? 11 547(b)(4)(B) - she's in "insider" and (5)(A) yes? but not if it's a divorce settlement? ?? (5)(B) YES;
NOT Avoidable: (5)(B)(7) "to the extent such transfer was a bona fide payment of a debt for a domestic support obligation;"
I'm kind of going in circles and not even getting to the potential bad faith issues. Can someone please give me guidance?
Thank you,
Sandy
e:
I am hoping that someone can confirm my understanding on this issue in California. I am reading In re Reed 89 BR 100 to say that where a married debtor files a solo bankruptcy, only the Debtor's half of a home held in Joint Tenancy (with the nonfiling spouse) is property of the estate. Further, that you take the gross value of the home, deduct the encumbrances, and take 1/2 of the net equity as the value to the bankruptcy estate. Then the Debtor's homestead can be claimed on that 1/2 of the equity - leaving the spouse's 1/2 of the equity completely outside of the estate. Is this accurate?? If so, should I be concerned that a chapter 7 trustee could try to recategorize the JT as community property and bring it all into the estate? Thanks for any insight - I'm having trouble with this concept.
Wouldn't touch this. He has fiduciary duty to wife to preserve CP assets. Everything you describe breaches that duty. In the end, he would lose his entire interest in the house if not all CP property.
Sent from iPad of
Vernon L. Ellicott, Esq.
Law Offices of Vernon L. Ellicott
(805) 446-6262 Thousand Oaks, CA
(661) 222-2922 Valencia, CA
(805) 446-6262 Fax
On Nov 8, 2013, at 4:17 PM, "SandraNutt1234@gmail.com" <SandraNutt1234@gmail.com> wrote:
I have client who is in the middle of divorce. Home has $320K-400K equity. Bills are $60K unsecured debt. Wife wants home and husband to pay bills (husband is unemployed). She allegedly works "under the table" and receives support from CA for adult disabled
son. She does not want to sell home but cannot refi b/c of bad credit.
Now, husband asks ... "What if" - I hate those "what if" questions.
What if he files CH.7 and DOES NOT CLAIM AN EXEMPTION. Isn't that malpractice on my part? I can't let a client dictate such a stance that is entirely against his interests?
Then he changes it again - What if we settle - he and wife and she keeps house and he gives up all community property that he's entitled to - then he files?
Will it be a preference?
He's not hiding assets, he's not in collusion with her, he wants to get remarried. He just wants out. But if I were to put a home in bankruptcy with approximately $400K equity - and not exempt his portion of his 50% ... makes me nervous. I even told him
he doesn't need to file but he doesn't want the liens on the home, etc. He's trying to preserve the asset for his son - hoping the Trustee will sell the home and they'll be better off with what is left over to buy a condo than letting the creditors put liens
on home, etc. Neither party is paying creditors now.
Would a divorce settlement be seen as a preference? 11 547(b)(4)(B) - she's in "insider" and (5)(A) yes? but not if it's a divorce settlement? ?? (5)(B) YES;
NOT Avoidable: (5)(B)(7) "to the extent such transfer was a bona fide payment of a debt for a domestic support obligation;"
I'm kind of going in circles and not even getting to the potential bad faith issues. Can someone please give me guidance?
Thank you,
Sandy
<sam@...> wrote:
I am hoping that someone can confirm my understanding on this issue in California. I am reading In re Reed 89 BR 100 to say that where a married debtor files a solo bankruptcy, only the Debtor's half of a home held in Joint Tenancy (with the nonfiling spouse)
is property of the estate. Further, that you take the gross value of the home, deduct the encumbrances, and take 1/2 of the net equity as the value to the bankruptcy estate. Then the Debtor's homestead can be claimed on that 1/2 of the equity - leaving the
spouse's 1/2 of the equity completely outside of the estate. Is this accurate?? If so, should I be concerned that a chapter 7 trustee could try to recategorize the JT as community property and bring it all into the estate? Thanks for any insight - I'm having
trouble with this concept.
The post was migrated from Yahoo.
I don't know the actual sections that prevent double dipping but I do know
you can't double dip like that. Probably the following section but I'm
tired of reading about exemptions and Coliers is not around /
My guess though is: 704.730(b):
Notwithstanding any other provision of this section, the
combined homestead exemptions of spouses on the same judgment shall
not exceed the amount specified in paragraph (2) or (3), whichever is
applicable, of subdivision (a), regardless of whether the spouses
are jointly obligated on the judgment and regardless of whether the
homestead consists of community or separate property or both.
Notwithstanding any other provision of this article, if both spouses
are entitled to a homestead exemption, the exemption of proceeds of
the homestead shall be apportioned between the spouses on the basis
of their proportionate interests in the homestead.
Sincerely,
Michael Avanesian
Law Offices of David A. Tilem
www.tilemlaw.com
818-507-6000
On Sat, Nov 9, 2013 at 7:41 AM, wrote:
>
>
> I'm not sure my last post went through - so forgive any redundancy. Again
> - if one spouse can file and bring 1/2 joint tenancy property into estate
> and then homestead, why can't the other spouse file a separate case and do
> the same - thereby effectively doubling the homestead?
>
>
> ---In cdcbaa@yahoogroups.com, wrote:
>
> Typical divorce fatigue. He has adult disabled son that has 24 hour care
> in home. Wife wants to keep house. Her disso attorney just served him
> with Rogs and Discovery for docs going back 15 years - so either disso
> attorney is being overbroad, or my potential debtor is hiding things he's
> not telling me about - but he's worn out. He thinks "I give" you keep
> house, I won't exempt - as if that will give Wife more $ -- file BK and
> creditors will go away. I told him it won't work like that. And what I
> didn't tell him is, we need to slow down - he only seems to be able to
> absob 'so much' each time he visits but he is forthright with documents and
> I don't see any hiding of $$. He feels that by giving in, she'll get house
> and equity to have asset and to keep disabled son in place, no changes.
> Problem is, house is falling down, literally, no one is really taking care
> of it and ... Debtor keeps changing his story when he walks in my office,
> not "story" but strategy based on emotion. If that all makes sense. But
> not exempting and just giving in never makes sense to me regardless of
> law. I have to keep my eye on both law and his rollercoaster emotion
> strategies - keeps throwing curves at me.
>
>
> ---In cdcbaa@yahoogroups.com, wrote:
>
> What confuses me is why does he not want the exemption? How does he think
> he will benefit from that?
>
> I love the Beverly case because it taught me what people mean when they
> say pig and hog and it showed me that just being technically correct (as
> Dennis was) is not going to win it all the time.
>
>
> http://scholar.google.com/scholar_case? ... as_sdt2006
>
>
>
> Sincerely,
> Michael Avanesian
> Law Offices of David A. Tilem
> www.tilemlaw.com
> 818-507-6000
>
>
> On Fri, Nov 8, 2013 at 4:42 PM, Larry Simons wrote:
>
>
>
> Ask Dennis to explain *In re Beverly * to you.
>
>
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] *On Behalf
> Of *SandraNutt1234@...
> *Sent:* Friday, November 08, 2013 4:17 PM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* [cdcbaa] ADD ON QUESTION - RE: H&W Joint Tenancy Property
>
>
>
>
>
> I have client who is in the middle of divorce. Home has $320K-400K
> equity. Bills are $60K unsecured debt. Wife wants home and husband to pay
> bills (husband is unemployed). She allegedly works "under the table" and
> receives support from CA for adult disabled son. She does not want to sell
> home but cannot refi b/c of bad credit.
>
>
>
> Now, husband asks ... "What if" - I hate those "what if" questions.
>
>
>
> What if he files CH.7 and DOES NOT CLAIM AN EXEMPTION. Isn't that
> malpractice on my part? I can't let a client dictate such a stance that is
> entirely against his interests?
>
>
>
> Then he changes it again - What if we settle - he and wife and she keeps
> house and he gives up all community property that he's entitled to - then
> he files?
>
>
>
> Will it be a preference?
>
>
>
> He's not hiding as sets, he's not in collusion with her, he wants to get
> remarried. He just wants out. But if I were to put a home in bankruptcy
> with approximately $400K equity - and not exempt his portion of his 50% ...
> makes me nervous. I even told him he doesn't need to file but he doesn't
> want the liens on the home, etc. He's trying to preserve the asset for his
> son - hoping the Trustee will sell the home and they'll be better off with
> what is left over to buy a condo than letting the creditors put liens on
> home, etc. Neither party is paying creditors now.
>
>
>
> Would a divorce settlement be seen as a preference? 11 547(b)(4)(B) -
> she's in "insider" and (5)(A) yes? but not if it's a divorce settlement?
> ?? (5)(B) YES;
>
>
>
> NOT Avoidable: (5)(B)(7) "to the extent such transfer was a bona fide
> payment of a debt for a domestic support obli gation;"
>
>
>
> I'm kind of going in circles and not even getting to the potential bad
> faith issues. Can someone please give me guidance?
>
>
>
> Thank you,
>
> Sandy
>
>
>
>
>
>
>
> ---In cdcbaa@yahoogroups.com, wrote:
>
> I am hoping that someone can confirm my understanding on this issue in
> California. I am reading In re Reed 89 BR 100 to say that where a married
> debtor files a solo bankruptcy, only the Debtor's half of a home held in
> Joint Tenancy (with the nonfiling spouse) is property of the estate.
> Further, that you take the gross value of the home, deduct the
> encumbrances, and take 1/2 of the net equity as the value to the bankruptcy
> estate. Then the Debtor's homestead can be claimed on that 1/2 of the
> equity - leaving the spouse's 1/2 of the equity compl etely outside of the
> estate. Is this accurate?? If so, should I be concerned that a chapter 7
> trustee could try to recategorize the JT as community property and bring it
> all into the estate? Thanks for any insight - I'm having trouble with this
> concept.
>
>
>
>
I don't know the actual sections that prevent double dipping but I do know you can't double dip like that. Probably the following section but I'm tired of reading about exemptions and Coliers is not around /
My guess though is: 704.730(b):Notwithstanding any other provision of this section, the
combined homestead exemptions of spouses on the same judgment shall
not exceed the amount specified in paragraph (2) or (3), whichever is
applicable, of subdivision (a), regardless of whether the spouses
are jointly obligated on the judgment and regardless of whether the
homestead consists of community or separate property or both.
Notwithstanding any other provision of this article, if both spouses
are entitled to a homestead exemption, the exemption of proceeds of
the homestead shall be apportioned between the spouses on the basis
of their proportionate interests in the homestead.Sincerely, Michael AvanesianLaw Offices of David A. Tilem
www.tilemlaw.com818-507-6000
On Sat, Nov 9, 2013 at 7:41 AM, <sam@southbaybk.com> wrote:
I'm not sure my last post went through - so forgive any redundancy. Again - if one spouse can file and bring 1/2 joint tenancy property into estate and then homestead, why can't the other spouse file a separate case and do the same - thereby effectively doubling the homestead?
---In cdcbaa@yahoogroups.com, <SandraNutt1234@...> wrote:Typical divorce fatigue. He has adult disabled son that has 24 hour care in home. Wife wants to keep house. Her disso attorney just served him with Rogs and Discovery for docs going back 15 years - so either disso attorney is being overbroad, or my potential de
The post was migrated from Yahoo.
Wait a minute. If one spouse can file and bring only 1/2 the joint tenancy property into the estate (and then claiming the homestead on it), what is to prevent the other spouse from filing a separate case and doing the same? Doesn't that have the practical effect of doubling the homestead allowance?
Sam Benevento
South Bay Bankruptcy Attorney
Sent from my iPad
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The post was migrated from Yahoo.
What confuses me is why does he not want the exemption? How does he think
he will benefit from that?
I love the Beverly case because it taught me what people mean when they say
pig and hog and it showed me that just being technically correct (as Dennis
was) is not going to win it all the time.
The post was migrated from Yahoo.