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H&W Joint Tenancy Property
Lien is avoided on the filing spouse's half interest.
d
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Nov 7, 2013, at 5:51 PM, Michael Avanesian wrote:
>
> I hope this is not a total new person question but what kind of effect does this have on LAM motions?
>
> As an example, assuming JT with 20k in equity. Only half is brought into Estate so homestead covers the 10k equity. There is a 522(f) granted against a judicial lien. Lien is not avoided right?
>
>
> Sincerely,
> Michael Avanesian
>
>> On Thu, Nov 7, 2013 at 4:27 PM, wrote:
>>
>> Thank you so much Larry. Good points. I actually decided to put her into a 13 because there is still a little too much equity - but that analysis certainly helps on the liquidation value!!
>>
>>
>>
>> ---In cdcbaa@yahoogroups.com, wrote:
>>
>> Your analysis is correct that when a property is held as joint tenancy, the nonfiling spouses interest does not come into the estate. However, two cautionary points, the trustee can seek to sell the property if the equity in the estates portion of the property exceeds the homestead (see 363(h)). Second, I would get a copy of the deed and make sure it states joint tenants. If the deed only states husband and wife, there is case law that states such vesting is community property.
>>
>>
>>
f sam@...
>>
>>
>> Sent: Thursday, November 07, 2013 3:44 PM
>> To: cdcbaa@yahoogroups.com
>> Subject: [cdcbaa] H&W Joint Tenancy Property
>>
>>
>>
>>
>> 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.
Sam:
Joint tenancy is separate property, that is why only 1/2 goes to estate. Not community property. Your analysis is correct.
d
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Nov 7, 2013, at 3:44 PM, 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.
>
>
On Nov 7, 2013, at 3:44 PM, <sam@southbaybk.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 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 hope this is not a total new person question but what kind of effect does
this have on LAM motions?
As an example, assuming JT with 20k in equity. Only half is brought into
Estate so homestead covers the 10k equity. There is a 522(f) granted
against a judicial lien. Lien is not avoided right?
Sincerely,
Michael Avanesian
On Thu, Nov 7, 2013 at 4:27 PM, wrote:
>
>
> Thank you so much Larry. Good points. I actually decided to put her into a
> 13 because there is still a little too much equity - but that analysis certainly
> helps on the liquidation value!!
>
>
> ---In cdcbaa@yahoogroups.com, wrote:
>
> Your analysis is correct that when a property is held as joint tenancy,
> the nonfiling spouses interest does not come into the estate. However,
> two cautionary points, the trustee can seek to sell the property if the
> equity in the estates portion of the property exceeds the homestead (see
> 363(h)). Second, I would get a copy of the deed and make sure it states
> joint tenants. If the deed only states husband and wife, there is case
> law that states such vesting is community property.
>
>
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] *On Behalf
> Of *sam@...
>
> *Sent:* Thursday, November 07, 2013 3:44 PM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* [cdcbaa] H&W Joint Tenancy Property
>
>
>
>
>
> 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.
>
>
>
I hope this is not a total new person question but what kind of effect does this have on LAM motions?As an example, assuming JT with 20k in equity. Only half is brought into Estate so homestead covers the 10k equity. There is a 522(f) granted against a judicial lien. Lien is not avoided right?
Sincerely, Michael AvanesianOn Thu, Nov 7, 2013 at 4:27 PM, <sam@southbaybk.com> wrote:
Thank you so much Larry. Good points. I actuallydecided toput her intoa 13 because there is still a little too much equity - butthat analysis certainly helps on the liquidation value!! ---In cdcbaa@yahoogroups.com, <larry@...> wrote:
Your analysis is correct that when a property is held as joint tenancy, the nonfiling spouses interest does not come into the estate. However, two cautionary
points, the trustee can seek to sell the property if the equity in the estates portion of the property exceeds the homestead (see 363(h)). Second, I would get a copy of the deed and make sure it states joint tenants. If the deed only states husband and
wife, there is case law that states such vesting is community property.
From: cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
On Behalf Of sam@...
Sent: Thursday, November 07, 2013 3:44 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] H&W Joint Tenancy Property
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 ahome 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 thata 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.