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Seterus
Nick -
Did your client record a declaration of homestead? My understanding is that the "automatic" homestead exemption in California exists regardless of whether the homeowner recorded a homestead exemption in a forced sale situation only. But a recorded homestead declaration protects a portion of the proceeds ($75K to $175K depending upon eligibility) for up to six months following a voluntary sale as well. I think there is also some case authority that a sale by a debtor in a Ch 7 qualifies as a "forced sale" such that a declaration need not be recorded. See In re Pike, 243 BR 66 and In re Mayer 167 BR 186. But at least one court has held opposite. See In re Knudsen 80 BR 193.
vard, Suite 120Los Angeles, CA 90025Email: garyrwallace@ymail.comOffice: (310) 571-3511
ps.com>
To: "cdcbaa@yahoogroups.com"
Cc: "ngebelt@goodbye2debt.com"
Sent: Friday, February 5, 2016 10:58 AM
Subject: RE: [cdcbaa] Seterus
e that has been pending for about a year and a half. When we filed, the debtor had a bit more than $100,000 in equity, which we exempted. In the meantime, the property has increased in value, so the debtor wishes to sell it. I filed a motion for authority to sell under the assumption that the debtor would at the very least get her exemption, and was about to file the declaration of nonopposition and lodge the order when I received Rod Danielsons demand on escrow. He demanded the entire sale proceeds. I therefore called him to find out if he was planning on paying the debtor her exemption out of the proceeds. He said he wasnt: all of the proceeds have to go into the plan. He said he had some case law which he couldnt give me . Since this sale is voluntary, she doesnt get the exemption. Is this true? Thanks in advance for any insight, and especially any authority to back up the insight. All the best, Nick Nicholas Gebelt Nicholas Gebelt, Ph.D., J.D. Attorney at Law Certified Bankruptcy Law Specialist State Bar of California Board of Legal Specialization Commissioner, California State Bars Bankruptcy Law Advisory Committee 90604 Phone: 562.777.9159 FAX: 562.946.1365 Email:ngebelt@goodbye2debt.com;ngebelt@gebeltlaw.com Web:www.goodbye2debt.com Blog:www.southerncaliforniabankruptcylawblog.com/ Important notice required by 11 U.S.C. 528:We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code. Confidentiality Note: This e-mail is intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential, or otherwise protected from disclosure. Dissemination, distribution, or copying of this e-mail or the information herein by anyone other than the intended recipient, or an employee or agent responsible for delivering the message to the intended recipient, is prohibited. If you have received this e-mail in error, please notify us immediately at 562.777.9159 or e-mailinfo@gebeltlaw.com and destroy the original message and all copies. Representation Note: If you have not signed a contract of representation, the Law Offices of Nicholas Gebelt do not represent you, and this email does not contain any legal advice for you. IRS Circular 230 Disclosure:In order to comply with the requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue code, or (ii) promoting, marketing, or recommending to another party any transaction or matter ad
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Nick,
Please look at In re Burgie, 239 BR 406 to counter that argument. Technically Rod is correct that exemptions only apply to forced sales (I should note that declared homesteads apply to voluntary sales though)
Sent from my iPhone
On Feb 5, 2016, at 10:59 AM, Nicholas Gebelt ngebelt@gebeltlaw.com [cdcbaa] wrote:
Dear Listserve Colleagues,
I have a Chapter 13 in Riverside that has been pending for about a year and a half. When we filed, the debtor had a bit more than $100,000 in equity, which we exempted. In the meantime, the property has increased in value, so the debtor wishes to sell it. I filed a motion for authority to sell under the assumption that the debtor would at the very least get her exemption, and was about to file the declaration of nonopposition and lodge the order when I received Rod Danielsons demand on escrow. He demanded the entire sale proceeds. I therefore called him to find out if he was planning on paying the debtor her exemption out of the proceeds. He said he wasnt: all of the proceeds have to go into the plan. He said he had some case law which he couldnt give me stating that the debtor is entitled her exemption only in a forced sale. Since this sale is voluntary, she doesnt get the exemption.
Is this true?
Thanks in advance for any insight, and especially any authority to back up the insight.
All the best,
Nick
Nicholas Gebelt
Nicholas Gebelt, Ph.D., J.D.
Attorney at Law
Certified Bankruptcy Law Specialist State Bar of California Board of Legal Specialization
Commissioner, California State Bars Bankruptcy Law Advisory Committee
Law Offices of Nicholas Gebelt
15150 Hornell Street
Whittier, CA 90604
Phone: 562.777.9159
FAX: 562.946.1365
Email: ngebelt@goodbye2debt.com; ngebelt@gebeltlaw.com
Web: www.goodbye2debt.com
Blog: www.southerncaliforniabankruptcylawblog.com/
Important notice required by 11 U.S.C. 528: We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.
Confidentiality Note: This e-mail is intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential, or otherwise protected from disclosure. Dissemination, distribution, or copying of this e-mail or the information herein by anyone other than the intended recipient, or an employee or agent responsible for delivering the message to the intended recipient, is prohibited. If you have received this e-mail in error, please notify us immediately at 562.777.9159 or e-mail info@gebeltlaw.com and destroy the original message and all copies.
Representation Note: If you have not signed a contract of representation, the Law Offices of Nicholas Gebelt do not represent you, and this email does not contain any legal advice for you.
IRS Circular 230 Disclosure: In order to comply with the requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue code, or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
Nick,
Please look at In re Burgie, 239 BR 406 to counter that argument. Technically Rod is correct that exemptions only apply to forced sales (I should note that declared homesteads apply to voluntary sales though)
Sent from my iPhone
On Feb 5, 2016, at 10:59 AM, Nicholas Gebelt
ngebelt@gebeltlaw.com [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
Dear Listserve Colleagues,
I have a Chapter 13 in Riverside that has been pending for about a year and a half. When we filed, the debtor had a bit more than $100,000 in equity, which we exempted. In the meantime, the
property has increased in value, so the debtor wishes to sell it. I filed a motion for authority to sell under the assumption that the debtor would at the very least get her exemption, and was about to file the declaration of nonopposition and lodge the order
when I received Rod Danielsons demand on escrow. He demanded the entire sale proceeds. I therefore called him to find out if he was planning on paying the debtor her exemption out of the proceeds. He said he wasnt: all of the proceeds have to go into
the plan. He said he had some case law which he couldnt give me stating that the debtor is entitled her exemption only in a forced sale. Since this sale is voluntary, she doesnt get the exemption.
Is this true?
Thanks in advance for any insight, and especially any authority to back up the insight.
All the best,
Nick
Nicholas Gebelt
Nicholas Gebelt, Ph.D., J.D.
Attorney at Law
Certified Bankruptcy Law Specialist State Bar of California Board of Legal Specialization
Commissioner, California State Bars Bankruptcy Law Advisory Committee
<image001.jpg>
Law Offices of Nicholas Gebelt
15150 Hornell Street
Whittier, CA 90604
Phone: 562.777.9159
FAX: 562.946.1365
Email:
ngebelt@goodbye2debt.com;
ngebelt@gebeltlaw.com
Web:
www.goodbye2debt.com
Blog:
www.southerncaliforniabankruptcylawblog.com/
Important notice required by 11 U.S.C. 528:
We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.
Confidentiality Note: This e-mail is intended only for the person or entity to which it is addressed and may contain information that
is privileged, confidential, or otherwise protected from disclosure. Dissemination, distribution, or copying of this e-mail or the information herein by anyone other than the intended recipient, or an employee or agent responsible for delivering the message
to the intended recipient, is prohibited. If you have received this e-mail in error, please notify us immediately at 562.777.9159 or e-mail
info@gebeltlaw.com and destroy the original message and all copies.
Representation Note: If you have not signed a contract of representation, the Law Offices of Nicholas Gebelt do not represent you,
and this email does not contain any legal advice for you.
IRS Circular 230 Disclosure:
In order to comply with the requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be
used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue code, or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
creation-date="Fri, 05 Feb 2016 18:58:55 GMT";
modification-date="Fri, 05 Feb 2016 18:58:55 GMT"
The post was migrated from Yahoo.
Not yet. Kirby calls a lot about vacuum cleaners.
On Feb 3, 2016 2:10 PM, "havkinlaw@earthlink.net [cdcbaa]" wrote:
>
>
> I have been receiving telephone calls from Seterus regarding every Chapter
> 13 client I have regarding their intent for their house. Every time I tell
> them that the debtors intend to keep their houses as they have been paying
> for these properties for years and are current. They tell me that their
> new policy is to call Debtor's counsel every 5 days to inquire about the
> Debtor's intent for the property. The only way out is for me to send them
> cease and desist letters. I told them that I will not be picking up the
> phone to Seterus ever again.
>
>
> Anyone else have this experience.
>
>
> Stella
>
>
Not yet. Kirby calls a lot about vacuum cleaners.
On Feb 3, 2016 2:10 PM, "havkinlaw@earthlink.net [cdcbaa]" <cdcbaa@yahoogroups.com> wrote:
I have been receiving telephone calls from Seterus regarding every Chapter 13 client I have regarding their intent for their house.uses as they have been paying for these properties for years and are current. They tell me that their new policy is to call Debtor's counsel every 5 days to inquire about the Debtor's intent for the property. I told them that I will not be picking up the phone to Seterus ever again.
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charset="UTF-8"
So far, only letters about once a week it seems.
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Best regards
Larry Webb
California Board of Legal Specialization
Certified Specialist in Bankruptcy Law
State Bar of California 229344
Central District California
"A Debt Relief Agency"
Law Offices of Larry Webb
484 Mobil Ste 43
Camarillo Ca 93010
P 805.987.1400
C 805.750.2150
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