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Homestead exemption in Ch. 13 where property value increases
Thanks guys. I am blown away by this line, "Postpetition disposable income
does not include prepetition property or its proceeds." This is another
research project on how these lines of cases can be used to help
individuals in Chapter 11.
Sincerely,
*Michael Avanesian, Esq. *AVANESIAN LAW FIRM
101 N. Brand Blvd., PH 1920
Glendale, California 91203
Tel: 818.276.2477 Fax: 818.208.4550
On Wed, Jan 28, 2015 at 5:15 PM, patricia said patriciahsaid@yahoo.com
[cdcbaa] wrote:
>
>
> Homestead exemption in ch. 13 where property value has increased.
> There is also the case of In re Burgie 239 BR 406 (9th Cir. BAP 1999)
> which held that post-petition appreciation goes to the debtor since it is
> not disposable income and therefore not aavailable to creditors.
> Pat Said.
>
> *Patricia Said*
> *Attorney at Law*
> *13443 McCormick Street*
> *Sherman Oaks, CA 91401*
> *(818)789-0781 fax (818)789-5820 *
> *patriciahsaid@yahoo.com *
>
> This electronic message contains information from the Law Office
> of Patricia Said which may be privileged and confidential.
> The information is intended for the use of the addressee(s) only. If you
> are not an addressee, note that any disclosure, copying, distribution or
> use of the contents of this email is prohibited. If you receive this email
> in error, please contact the sender.
>
>
> On Wednesday, January 28, 2015 4:34 PM, "Michael Avanesian
> michael@avanesianlaw.com [cdcbaa]" wrote:
>
>
>
> Thanks Steven. The case you're thinking of is probably: In re Lynch, 363
> BR 101 - Bankr. Appellate Panel, 9th Circuit 2007
>
> I'm going to do some studying on the side for fun. I assume from what
> you've said that "income" under the BK code is not defined as income under
> the IRC. I would have thought if you had an asset that appreciated in value
> which you sold, it would be treated as income under 1322(a)(1).
>
>
> Sincerely,
>
>
> *Michael Avanesian, Esq. *AVANESIAN LAW FIRM
> 101 N. Brand Blvd., PH 1920
> Glendale, California 91203
> Tel: 818.276.2477 Fax: 818.208.4550
>
> On Wed, Jan 28, 2015 at 11:18 AM, 'Steven B. Lever' sblever@leverlaw.com
> [cdcbaa] wrote:
>
>
> Mark:
>
> If there is postpetition equity it is the Debtors regardless of the
> exemption.
>
> The Trustee may take another position, but there is good case law out
> there, a BAP decision I believe by Bufford that is very persuasive that all
> postpetition equity belongs to the Debtor.
>
> Steve
>
> Steven B. Lever
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
> *Sent:* Wednesday, January 28, 2015 10:46 AM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* [cdcbaa] Homestead exemption in Ch. 13 where property value
> increases
>
>
> I just got asked an interesting question from a debtor.
>
> Here are the basic facts:
>
> Ch. 13 case filed. At time of filing, supposedly no equity in the
> property, so no exemptions taken.
>
> 4+ years later, debtor needs to sell his property to take advantage of a
> new job's relocation package offer.
>
> Property now has possibly $150k equity.
>
> Question:
>
> Assuming debtor amends to take the property homestead exemption, is he
> entitled to keep that exemption amount no matter what, assuming there is a
> court-approved sale of the property, and then turn over the excess to the
> Trustee? I assume he is, but wasn't sure if maybe he was limited to the
> exemption on the value that existed on the petition date.
>
>
> *************************
> Mark J. Markus
> Law Office of Mark J. Markus
> *Mailing Address Only:*
> 11684 Ventura Blvd. PMB #403
> Studio City, CA 91604-2652
> (818)509-1173 (818)332-1180 (fax)
> web: http://www.bklaw.com/
> Certified Bankruptcy Law Specialist--The State Bar of California Board of
> Legal Specialization
> This Firm is a Qualified Federal Debt Relief Agency
> ________________________________________________
> NOTICE: This Electronic Message contains information from the law office
> of Mark J. Markus that may be privileged. The information is intended for
> the use of the addressee only. If you are not the addressee, note that any
> disclosure, copy, distribution or use of the contents of this message is
> prohibited.
> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by
> the IRS, we inform you that any U.S. tax advice contained in this
> communication (or in any attachment) is not intended or written 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 in this communication.
>
>
>
>
>
>
>
Thanks guys. I am blown away by this line, "Postpetition disposable income does not include prepetition property or its proceeds." This is another research project on how these lines of cases can be used to help individuals in Chapter 11.Sincerely,Michael Avanesian, Esq.AVANESIAN
LAW FIRM101
N. Brand Blvd., PH 1920Glendale,
California 91203Tel:
818.276.2477 Fax: 818.208.4550
On Wed, Jan 28, 2015 at 5:15 PM, patricia said patriciahsaid@yahoo.com [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
The post was migrated from Yahoo.
Thanks Steven. The case you're thinking of is probably: In re Lynch, 363 BR
101 - Bankr. Appellate Panel, 9th Circuit 2007
I'm going to do some studying on the side for fun. I assume from what
you've said that "income" under the BK code is not defined as income under
the IRC. I would have thought if you had an asset that appreciated in value
which you sold, it would be treated as income under 1322(a)(1).
Sincerely,
*Michael Avanesian, Esq. *AVANESIAN LAW FIRM
101 N. Brand Blvd., PH 1920
Glendale, California 91203
Tel: 818.276.2477 Fax: 818.208.4550
On Wed, Jan 28, 2015 at 11:18 AM, 'Steven B. Lever' sblever@leverlaw.com
[cdcbaa] wrote:
>
>
> Mark:
>
>
>
> If there is postpetition equity it is the Debtors regardless of the
> exemption.
>
>
>
> The Trustee may take another position, but there is good case law out
> there, a BAP decision I believe by Bufford that is very persuasive that all
> postpetition equity belongs to the Debtor.
>
>
>
> Steve
>
>
>
> Steven B. Lever
>
>
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
> *Sent:* Wednesday, January 28, 2015 10:46 AM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* [cdcbaa] Homestead exemption in Ch. 13 where property value
> increases
>
>
>
>
>
> I just got asked an interesting question from a debtor.
>
> Here are the basic facts:
>
> Ch. 13 case filed. At time of filing, supposedly no equity in the
> property, so no exemptions taken.
>
> 4+ years later, debtor needs to sell his property to take advantage of a
> new job's relocation package offer.
>
> Property now has possibly $150k equity.
>
> Question:
>
> Assuming debtor amends to take the property homestead exemption, is he
> entitled to keep that exemption amount no matter what, assuming there is a
> court-approved sale of the property, and then turn over the excess to the
> Trustee? I assume he is, but wasn't sure if maybe he was limited to the
> exemption on the value that existed on the petition date.
>
>
> *************************
> Mark J. Markus
> Law Office of Mark J. Markus
> *Mailing Address Only:*
> 11684 Ventura Blvd. PMB #403
> Studio City, CA 91604-2652
> (818)509-1173 (818)332-1180 (fax)
> web: http://www.bklaw.com/
> Certified Bankruptcy Law Specialist--The State Bar of California Board of
> Legal Specialization
> This Firm is a Qualified Federal Debt Relief Agency
> ________________________________________________
> NOTICE: This Electronic Message contains information from the law office
> of Mark J. Markus that may be privileged. The information is intended for
> the use of the addressee only. If you are not the addressee, note that any
> disclosure, copy, distribution or use of the contents of this message is
> prohibited.
> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by
> the IRS, we inform you that any U.S. tax advice contained in this
> communication (or in any attachment) is not intended or written 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 in this communication.
>
>
>
>
>
Thanks Steven. The case you're thinking of is probably:In re Lynch, 363 BR 101 - Bankr. Appellate Panel, 9th Circuit 2007I'm going to do some studying on the side for fun. I assume from what you've said that "income" under the BK code is not defined as income under the IRC. I would have thought if you had an asset that appreciated in value which you sold, it would be treated as income under 1322(a)(1).
The post was migrated from Yahoo.
Yes, he can amend and keep his full exemption for the 6 months he has to
reinvest.
Some extra thoughts. Technically after 6 months, the $ is no longer exempt
and must be protected by another exemption, that's why people reinvest
proceeds in another dwelling. What happens if Debtor moves to a state that
protects less than the full 75k exemption amount? It's a strange interplay
of laws since the "snapshot" approach had a carve out for this 6 month rule
which may mean another exemption analysis has to be conducted at the end of
the 6 months period. This is not a big concern since someone has to raise
this issue, figure out how the laws would apply and determine that it
applies in a way that's not in your client's favor.
Sincerely,
*Michael Avanesian, Esq. *AVANESIAN LAW FIRM
101 N. Brand Blvd., PH 1920
Glendale, California 91203
Tel: 818.276.2477 Fax: 818.208.4550
On Wed, Jan 28, 2015 at 10:46 AM, 'Mark J. Markus' bklawr@yahoo.com
[cdcbaa] wrote:
>
>
> I just got asked an interesting question from a debtor.
>
> Here are the basic facts:
>
> Ch. 13 case filed. At time of filing, supposedly no equity in the
> property, so no exemptions taken.
>
> 4+ years later, debtor needs to sell his property to take advantage of a
> new job's relocation package offer.
>
> Property now has possibly $150k equity.
>
> Question:
>
> Assuming debtor amends to take the property homestead exemption, is he
> entitled to keep that exemption amount no matter what, assuming there is a
> court-approved sale of the property, and then turn over the excess to the
> Trustee? I assume he is, but wasn't sure if maybe he was limited to the
> exemption on the value that existed on the petition date.
>
>
>
> *************************
> Mark J. Markus
> Law Office of Mark J. Markus
> *Mailing Address Only:*
> 11684 Ventura Blvd. PMB #403
> Studio City, CA 91604-2652
> (818)509-1173 (818)332-1180 (fax)
> web: http://www.bklaw.com/
> Certified Bankruptcy Law Specialist--The State Bar of California Board of
> Legal Specialization
> This Firm is a Qualified Federal Debt Relief Agency
> ________________________________________________
> NOTICE: This Electronic Message contains information from the law office
> of Mark J. Markus that may be privileged. The information is intended for
> the use of the addressee only. If you are not the addressee, note that any
> disclosure, copy, distribution or use of the contents of this message is
> prohibited.
> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by
> the IRS, we inform you that any U.S. tax advice contained in this
> communication (or in any attachment) is not intended or written 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 in this communication.
>
>
>
Yes, he can amend and keep his full exemption for the 6 months he has to reinvest.Some extra thoughts. Technically after 6 months, the $ is no longer exempt and must be protected by another exemption, that's why people reinvest proceeds in another dwelling. What happens if Debtor moves to a state that protects less than the full 75k exemption amount? It's a strange interplay of laws since the "snapshot" approach had a carve out for this 6 month rule which may mean another exemption analysis has to be conducted at the end of the 6 months period. This is not a big concern since someone has to raise this issue, figure out how the laws would apply and determine that it applies i
The post was migrated from Yahoo.