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704 exemption and out of state property
Since we are trying to see if this dog will hunt or be hunted, we need to
give it a name. The name is "extraterritoriality". Domicile is a separate
issue which also has to be addressed, but it is not the same as
extraterritoriality. Because of the addition of 522(b) in 2005, the
extraterritoriality of state exemptions has become a hot topic. The NCLC
manual addresses it for each state in their appendix and there is a website
devoted to the topic which is at http://www.exemptionsexpress.com/.
The Arrol case specifically addresses extraterritoriality at p. 936: The
question we next consider is whether California law permits a debtor to
claim a homestead on a residence that is located outside of California. The
court answers in the affirmative: We find nothing in the California
exemption statutory scheme, its legislative history, or its interpretation
in California case law to limit the application of the homestead exemption
to dwellings within California.
If you have any questions or concerns, please contact me.
Pat
Patrick T. Green
Attorney at Law
Fitzgerald & Green
1010 E. Union St. Ste. 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
pat@fitzgreenlaw.com
The post was migrated from Yahoo.
I was looking up Arrol when Larry chimed in. Arrol is a case where debtor
moved from CA to Michigan, but lived the most of the previous 180 days in
CA, so filed bk in CA, using CA exemptions and exempted Michigan property.
At time of filing, debtor lived in Michigan in his Michigan domicile.
It is not a rock solid case for using the CA exemptions on out of state
property. The facts are kind of unique.
It appears they could be tweaked a bit to help this debtor, but only if the
out of state property is the domicile, and only if the debtor lived here
most of the last 180 days.
I have stated this here before, but a former client, changed drivers
license, utilities, etc, to a big bear property, where we took a homestead,
and the trustee hired a P.I. to follow her. Testimony of P.I. was 20 days
in BB, 40 days down here.
Judge ruled BB not a domicile, and no homestead.
be careful out there.
dennis
On Mon, Apr 22, 2013 at 12:22 PM, Larry Simons wrote:
> **
>
>
> The case is *Arrol * (perhaps 2 Ls). Debtor was in Michigan using CA
> exemptions.****
>
> ** **
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] *On Behalf
> Of *Steven B. Lever
> *Sent:* Monday, April 22, 2013 12:13 PM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* RE: [cdcbaa] 704 exemption and out of state property****
>
> ** **
>
> ****
>
> I agree with Jays analysis as you have to go through the whole domicile
> analysis, but once youve done that theres a dead bang 9th Circuit Court
> of Appeals case decided in the last 10 years that states you can take
> Californias homestead exemption on out of state properties, but while I
> used to know the name of the case I cannot recall it and have not found it
> in the 10 minutes I have. When I remember it at 3 a.m. Ill let you know,
> but for now I just wanted to let you know the case is out there.****
>
> ****
>
> Steve ****
>
> ****
>
> Steven B. Lever ****
>
> ****
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] *On Behalf
> Of *Jay Fleischman
> *Sent:* Monday, April 22, 2013 11:26 AM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* Re: [cdcbaa] 704 exemption and out of state property****
>
> ****
>
> ****
>
> From Langfield:
>
> The meaning of the term "domicile" in a federal statute presents a federal
> question to be determined under federal common law unless Congress
> unambiguously adopts state law Donald v Curry (In re Donald), 328 B R 192,
> 200 (9th Cir BAP 2005) (citingKantor v. Wellesley Galleries, Ltd., 704 F 2d
> 1088 (9th Cir 1983)) In general, a "domicile is one's permanent home, where
> one resides with the intention to remain or to which one intends to return
> and to which certain rights and duties are attached" Id at 202 (citations
> omitted) "Everyone has a domicile and nobody has more than one domicile at
> a time," and "[o]nce established, [a] domicile continues until superseded
> by another domicile" Id.
>
> From Ontiveros v. Michaels Stores, Inc. et al., No. CV 12-09437 MMM
> (FMOx). (CDCA 2013):
>
> A person's domicile is her permanent home, where she resides with the
> intention to remain or to which she intends to return. A person residing in
> a given state is not necessarily domiciled there, and thus is not
> necessarily a citizen of that state"); see also Weible v. United States,
> 244 F.2d 158, 163 (9th Cir. 1957) ("Residence is physical, whereas domicile
> is generally a compound of physical presence plus an intention to make a
> certain definite place one's permanent abode, though, to be su re,domicile
> often hangs on the slender thread of intent alone, as for instance where
> one is a wanderer over the earth. Residence is not an immutable condition
> of domicile").
>
>
> From the tax world, FTB Regulation 17014(c) states:
>
> Domicile has been defined as the place where an individual has his true,
> fixed, permanent home and principal establishment, and to which place he
> has whenever he is absent, the intention of returning.... Another
> definition of "domicile" consistent with the above is the place where an
> individual has fixed his habitation and has permanent residence without any
> present intention of permanently removing therefrom.
>
> Given the above, I'd look to where the debtor works, address for personal
> mail, length of residence in a particular place, driver license address,
> address on tax returns, and the like.
>
> -------------
> Jay S. Fleischman, Esq.
> Shaev & Fleischman, LLP
>
> I help people in the Los Angeles area and New York City get smart
> solutions to their bill problems.
>
> http://www.ConsumerHelpCentral.com
>
> 556 S Fair Oaks Ave Ste 101-152
> Pasadena CA 91105-2656
>
> 350 Fifth Avenue, Suite 7210
> New York NY 10118
>
> T: 626-808-4343 x704
> E: jay@sflawca.com
>
> Email isn't secure, so it's not confidential. By communicating with me by
> email, you understand that it's not confidential.
>
> On Apr 22, 2013, at 10:49 AM, Hale Andrew Antico
> wrote:
>
> > bankruptcy 704 homestead exemption domicile****
>
> ****
>
>
>
I was looking up Arrol when Larry chimed in. Arrol is a case where debtor moved from CA to Michigan, but lived the most of the previous 180 days in CA, so filed bk in CA, using CA exemptions and exempted Michigan property. At time of filing, debtor lived in Michigan in his Michigan domicile.
It is not a rock solid case for using the CA exemptions on out of state property. The facts are kind of unique.It appears they could be tweaked a bit to help this debtor, but only if the out of state property is the domicile, and only if the debtor lived here most of the last 180 days.
I have stated this here before, but a former client, changed drivers license, utilities, etc, to a big bear property, where we took a homestead, and the trustee hired a P.I. to follow her. Testimony of P.I. was 20 days in BB, 40 days down here.
Judge ruled BB not a domicile, and no homestead.be careful out there.dennis
On Mon, Apr 22, 2013 at 12:22 PM, Larry Simons <larry@lsimonslaw.com> wrote:
The case is
Arrol (perhaps 2 Ls). Debtor was in Michigan using CA exemptions.
From: cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
On Behalf Of Steven B. Lever
Sent: Monday, April 22, 2013 12:13 PM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] 704 exemption and out of state property
I agree with Jays analysis as you have to go through the whole domicile analysis, but once you Court of Appeals case decided in the last 10 years that states you can take Californias homestead exemption on out of state properties, but while I used to know the name of the case I cannot recall it and have not found it in the 10 minutes I have. When
I remember it at 3 a.m. Ill let you know, but for now I just wanted to let you know the case is out there.
Steve
Steven B. Lever
From:
cdcbaa@yahoogroups.com
[mailto:cdcbaa@yahoogroups.com] On Behalf Of Jay Fleischman
Sent: Monday, April 22, 2013 11:26 AM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] 704 exemption and out of state property
From Langfield:
The meaning of the term "domicile" in a federal statute presents a federal question to be determined under federal common law unless Congress unambiguously adopts state law Donald v Curry (In re Donald), 328 B R 192, 200 (9th Cir BAP 2005) (citingKantor v.
Wellesley Galleries, Ltd., 704 F 2d 1088 (9th Cir 1983)) In general, a "domicile is one's permanent home, where one resides with the intention to remain or to which one intends to return and to which certain rights and duties are attached" Id at 202 (citations
omitted) "Everyone has a domicile and nobody has more than one domicile at a time," and "[o]nce established, [a] domicile continues until superseded by another domicile" Id.
From Ontiveros v. Michaels Stores, Inc. et al., No. CV 12-09437 MMM (FMOx). (CDCA 2013):
A person's domicile is her permanent home, where she resides with the intention to remain or to which she intends to return. A person residing in a given state is not necessarily domiciled there, and thus is not necessarily a citizen of that state"); see also
Weible v. United States, 244 F.2d 158, 163 (9th Cir. 1957) ("Residence is physical, whereas domicile is generally a compound of physical presence plus an intention to make a certain definite place one's permanent abode, though, to be su re,domicile often hangs
on the slender thread of intent alone, as for instance where one is a wanderer over the earth. Residence is not an immutable condition of domicile").
From the tax world, FTB Regulation 17014(c) states:
Domicile has been defined as the place where an individual has his true, fixed, permanent home and principal establishment, and to which place he has whenever he is absent, the intention of returning.... Another definition of "domicile" consistent with the
above is the place where an individual has fixed his habitation and has permanent residence without any present intention of permanently removing therefrom.
Given the above, I'd look to where the debtor works, address for personal mail, length of residence in a particular place, driver license address, address on tax returns, and the like.
Jay S. Fleischman, Esq.
Shaev & Fleischman, LLP
I help people in the Los Angeles area and New York City get smart solutions to their bill problems.
http://www.ConsumerHelpCentral.com
556 S Fair Oaks Ave Ste 101-152
Pasadena CA 91105-2656
350 Fifth Avenue, Suite 7210
New York NY 10118
T: 626-808-4343 x704
E: jay@sflawca.com
The post was migrated from Yahoo.
That's better than my memory, and thanks Larry for preventing that late
night synaptic jolt: I need my sleep. I'm really glad we can crowd
source these questions because as I get older the interior wiring is
less dependable.
Anyway, I didn't see In re Arrol as part of the thread and thought that
should be thrown in as the most apposite case.
Steve
The post was migrated from Yahoo.
I agree with Jay's analysis as you have to go through the whole domicile
analysis, but once you've done that there's a dead bang 9th Circuit
Court of Appeals case decided in the last 10 years that states you can
take California's homestead exemption on out of state properties, but
while I used to know the name of the case I cannot recall it and have
not found it in the 10 minutes I have. When I remember it at 3 a.m.
I'll let you know, but for now I just wanted to let you know the case is
out there.
Steve
Steven B. Lever
The post was migrated from Yahoo.
From Langfield:
The meaning of the term "domicile" in a federal statute presents a federal question to be determined under federal common law unless Congress unambiguously adopts state law Donald v Curry (In re Donald), 328 B R 192, 200 (9th Cir BAP 2005) (citingKantor v. Wellesley Galleries, Ltd., 704 F 2d 1088 (9th Cir 1983)) In general, a "domicile is one's permanent home, where one resides with the intention to remain or to which one intends to return and to which certain rights and duties are attached" Id at 202 (citations omitted) "Everyone has a domicile and nobody has more than one domicile at a time," and "[o]nce established, [a] domicile continues until superseded by another domicile" Id.
The post was migrated from Yahoo.
When I go to http://scholar.google.com and select relevant courts and search
bankruptcy 704 homestead exemption domicile
I get, among others,
In re Langfield (2012)
Case No 11-28853-D-7, Docket Control No. DNL-3.
EDCA
Hale
________________________________
The post was migrated from Yahoo.
What about if the nonfiling spouse continuously resides there:
704.710(c) "Homestead" means the principal dwelling (1) in which the
judgment debtor *or the judgment debtor's spouse resided *on the date
the judgment creditor's lien attached to the dwelling, and (2) in
which the judgment debtor or the judgment debtor's ......
Could debtor then claim the homestead based on the spouse's presence there
even though the debtor travels back and forth?
Holly Roark
Certified Bankruptcy Specialist*
holly@roarklawoffices.com **primary email address**
www.roarklawoffices.com
Central District of California
Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600
Los Angeles, CA 90067
T (310) 553-2600
F (310) 553-2601
*By State Bar of California Board of Legal Specialization
**For a quicker response, email me at holly@roarklawoffices.com.
I only use gmail for my listservs, and am likely to miss private emails
directed to my gmail account.**
On Fri, Apr 19, 2013 at 9:37 PM, Dennis McG wrote:
> **
>
>
> no
>
>
> On Fri, Apr 19, 2013 at 9:17 PM, Larry Simons wrote:
>
>> **
>>
>>
>> Need more facts. Where do they work etc.
>> ------------------------------
>> *From:* cdcbaa@yahoogroups.com [cdcbaa@yahoogroups.com] on behalf of
>> Yelena Gurevich [attylenagurevich@gmail.com]
>> *Sent:* Wednesday, April 10, 2013 10:25 AM
>> *To:* cdcbaa@yahoogroups.com
>> *Subject:* [cdcbaa] 704 exemption and out of state property
>>
>>
>>
>> Can the 704 homestead exemption be used for a property located in New
>> Mexico if debtors live in Los Angeles and travel back and forth.
>>
>>
>
>
What about if the nonfiling spouse continuously resides there: 704.710(c)"Homestead" means the principal dwelling (1) in which thejudgment debtor or the judgment debtor's spouse resided on the date
the judgment creditor's lien attached to the dwelling, and (2) inwhich the judgment debtor or the judgment debtor's ......Could debtor then claim the homestead based on the spouse's presence there even though the debtor travels back and forth?
Holly RoarkCertified Bankruptcy Specialist*
holly@roarklawoffices.com**primary email address**
www.roarklawoffices.com
Central District of California
Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600
Los Angeles, CA 90067
T (310) 553-2600
F (310) 553-2601
*By State Bar of California Board of Legal
Specialization
The post was migrated from Yahoo.
Valid homestead claim requires physical presence coupled with an intent to actually reside there.
Sent via BlackBerry by AT&T
Sender: cdcbaa@yahoogroups.com
Date: Wed, 10 Apr 2013 17:25:08
To:
Reply-To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] 704 exemption and out of state property
Can the 704 homestead exemption be used for a property located in New Mexico if debtors live in Los Angeles and travel back and forth.
The post was migrated from Yahoo.
no
On Fri, Apr 19, 2013 at 9:17 PM, Larry Simons wrote:
> **
>
>
> Need more facts. Where do they work etc.
> ------------------------------
> *From:* cdcbaa@yahoogroups.com [cdcbaa@yahoogroups.com] on behalf of
> Yelena Gurevich [attylenagurevich@gmail.com]
> *Sent:* Wednesday, April 10, 2013 10:25 AM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* [cdcbaa] 704 exemption and out of state property
>
>
>
> Can the 704 homestead exemption be used for a property located in New
> Mexico if debtors live in Los Angeles and travel back and forth.
>
>
>
noOn Fri, Apr 19, 2013 at 9:17 PM, Larry Simons <larry@lsimonslaw.com> wrote:
Need more facts. Where do they work etc.
From: cdcbaa@yahoogroups.com [cdcbaa@yahoogroups.com] on behalf of Yelena Gurevich [attylenagurevich@gmail.com]
Sent: Wednesday, April 10, 2013 10:25 AM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] 704 exemption and out of state property
Can the 704 homestead exemption be used for a property located in New Mexico if debtors live in Los Angeles and travel back and forth.
The post was migrated from Yahoo.