Central District Consumer Bankruptcy Attorney's Association

Thanks y'all. I really appreciate the input. Just for the record - I took the exemption. I just CORRECTLY valued it as zero on the date of the petition. I didn't want to give B of A ammo to fight the junior mortgage lien avoidance. Amending to incorrectly claim a $1 exemption and then re-filing the motion just galls me! Talk about bureaucratic make-work.

The post was migrated from Yahoo.

It may seem rather silly, but then again we are dealing with laws draftedin Washington D.C.... Under the plain language of 522(f) the judgment
lien must impair an exemption in the property. If you have not claimed anexemption in the property, then no exemption is impaired.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868 (805) 497-5864 (Facsimile)
In a message dated 7/25/2013 2:10:53 P.M. Pacific Daylight Time,
sam@southbaybk.com writes:
This seems to be the height of form over substance. Taken to the logical conclusion, the court is essentially saying that I CAN get the Junior
Mortgage avoided because there is no equity in the property, but I CAN'T remove
the Judgment Lien for precisely the very same reason. Bizarre result - e
specially given the fact that neither motion is opposed.
jesseelaw@... wrote:
>
> No. You are not saying there is any equity. You are just claiming an
> exemption. Schedule A valuation of the property on the Petition Date
does not
> change any.
>
> Mark T. Jessee
> Law Offices of Mark T. Jessee
> "A Debt Relief Agency"
> 50 W. Hillcrest Drive, Suite 200
> Thousand Oaks, CA 91360
> (805) 497-5868 (805) 497-5864 (Facsimile)
>
>
>
> In a message dated 7/25/2013 12:29:13 P.M. Pacific Daylight Time,
> sam@... writes:
>
>
>
>
> If I claim a penny of exemption, doesn't that defeat my Motion to Avoid> Junior Mortgage??
>
> --- In __cdcbaa@yahoogroups.com_ (mailto:_cdcbaa@yahoogroups.com) _
(mailto:_cdcbaa@yahoogroups.com_ (mailto:cdcbaa@yahoogroups.com) ) ,
> jesseelaw@ wrote:
> >
> > You need to claim an actual amount as exempt. Amend Schedule C and
claim
> > a penny of the wild card and then refile your 522(f) motion.
> >
> > Mark T. Jessee
> > Law Offices of Mark T. Jessee
> > "A Debt Relief Agency"
> > 50 W. Hillcrest Drive, Suite 200
> > Thousand Oaks, CA 91360
> > (805) 497-5868 (805) 497-5864 (Facsimile)
> >
> >
> >
> > In a message dated 7/25/2013 11:29:43 A.M. Pacific Daylight Time,
> > sam@ writes:
> >
> >
> >
> >
> > I just had Judge Brand deny a 522(f) motion to avoid judicial lien ina
> > Chapter 13 case because the property is underwater. I did claim the
> homestead
> > exemption - but had to value it at zero (we are also avoiding a Junior> > Mortgage on the property). The Court says that the lien does not
impair
> the
> > homestead exemption since the claimed exemption is zero. Is Higgins
> still good
> > law? What am I missing? Any thoughts or comments? I was considering a> > Motion to Value and then treating the judgment as unsecured, but it
does
> not
> > solve the chain of title problem created when the abstract of judgment> was
> > recorded.
> >
>
It may seem rather silly, but then again we are dealing with laws
drafted in Washington D.C.... Under the plain language of 522(f) the
judgment lien must impair an exemption in the property. If you have not
claimed an exemption in the property, then no exemption is
impaired.

Mark T.
JesseeLaw Offices of Mark T. Jessee"A Debt Relief Agency"50 W.Hillcrest Drive, Suite 200Thousand Oaks, CA 91360(805) 497-5868 (805)
497-5864 (Facsimile)

In a message dated 7/25/2013 2:10:53 P.M. Pacific Daylight Time,
sam@southbaybk.com writes:


This seems to be the height of form over substance. Taken to the logical
conclusion, the court is essentially saying that I CAN get the Junior Mortgage
avoided because there is no equity in the property, but I CAN'T remove the
Judgment Lien for precisely the very same reason. Bizarre result - especially
given the fact that neither motion is opposed.--- In
The post was migrated from Yahoo.

This seems to be the height of form over substance. Taken to the logical conclusion, the court is essentially saying that I CAN get the Junior Mortgage avoided because there is no equity in the property, but I CAN'T remove the Judgment Lien for precisely the very same reason. Bizarre result - especially given the fact that neither motion is opposed.
>
> No. You are not saying there is any equity. You are just claiming an
> exemption. Schedule A valuation of the property on the Petition Date does not
> change any.
>
> Mark T. Jessee
> Law Offices of Mark T. Jessee
> "A Debt Relief Agency"
> 50 W. Hillcrest Drive, Suite 200
> Thousand Oaks, CA 91360
> (805) 497-5868 (805) 497-5864 (Facsimile)
>
>
>
> In a message dated 7/25/2013 12:29:13 P.M. Pacific Daylight Time,
> sam@... writes:
>
>
>
>
> If I claim a penny of exemption, doesn't that defeat my Motion to Avoid > Junior Mortgage??
>
> --- In _cdcbaa@yahoogroups.com_ (mailto:cdcbaa@yahoogroups.com) ,
> jesseelaw@ wrote:
> >
> > You need to claim an actual amount as exempt. Amend Schedule C and claim
> > a penny of the wild card and then refile your 522(f) motion.
> >
> > Mark T. Jessee
> > Law Offices of Mark T. Jessee
> > "A Debt Relief Agency"
> > 50 W. Hillcrest Drive, Suite 200
> > Thousand Oaks, CA 91360
> > (805) 497-5868 (805) 497-5864 (Facsimile)
> >
> >
> >
> > In a message dated 7/25/2013 11:29:43 A.M. Pacific Daylight Time,
> > sam@ writes:
> >
> >
> >
> >
> > I just had Judge Brand deny a 522(f) motion to avoid judicial lien in a
> > Chapter 13 case because the property is underwater. I did claim the
> homestead
> > exemption - but had to value it at zero (we are also avoiding a Junior> > Mortgage on the property). The Court says that the lien does not impair
> the
> > homestead exemption since the claimed exemption is zero. Is Higgins
> still good
> > law? What am I missing? Any thoughts or comments? I was considering a> > Motion to Value and then treating the judgment as unsecured, but it does
> not
> > solve the chain of title problem created when the abstract of judgment> was
> > recorded.
> >
>

The post was migrated from Yahoo.

type="multipart/alternative"
Dear Sam,
You may wish to ask for a reconsideration of your motion. Include a brief that discusses In re Higgins, 201 B.R. 965 (B.A.P. 9th Cir. 1996) and walk Judge Brand through the application of formula given in 522(f)(2)(A) to your client's case:
For the purposes of this subsection, a lien shall be considered to impair an exemption to the extent that the sum of-
(i) the lien;
(ii) all other liens on the property; and
(iii) the amount of the exemption that the debtor could claim if there were no liens on the property
I have attached the Memorandum of Points and Authorities I successfully used in a recent case before Judge Bluebond in which the debtor's house was underwater.
Good luck,
Nick
Nicholas Gebelt
Nicholas Gebelt, Ph.D., J.D.
Attorney at Law
Certified Bankruptcy Law Specialist
[Description: Description: Description: cid:image003.jpg@01CC076B.B14D73C0]
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.

The post was migrated from Yahoo.

No. You are not saying there is any equity. You are just claiming an
exemption. Schedule A valuation of the property on the Petition Date does not
change any.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868 (805) 497-5864 (Facsimile)
In a message dated 7/25/2013 12:29:13 P.M. Pacific Daylight Time,
sam@southbaybk.com writes:
If I claim a penny of exemption, doesn't that defeat my Motion to Avoid Junior Mortgage??
jesseelaw@... wrote:
>
> You need to claim an actual amount as exempt. Amend Schedule C and claim> a penny of the wild card and then refile your 522(f) motion.
>
> Mark T. Jessee
> Law Offices of Mark T. Jessee
> "A Debt Relief Agency"
> 50 W. Hillcrest Drive, Suite 200
> Thousand Oaks, CA 91360
> (805) 497-5868 (805) 497-5864 (Facsimile)
>
>
>
> In a message dated 7/25/2013 11:29:43 A.M. Pacific Daylight Time,
> sam@... writes:
>
>
>
>
> I just had Judge Brand deny a 522(f) motion to avoid judicial lien in a> Chapter 13 case because the property is underwater. I did claim the
homestead
> exemption - but had to value it at zero (we are also avoiding a Junior > Mortgage on the property). The Court says that the lien does not impairthe
> homestead exemption since the claimed exemption is zero. Is Higgins
still good
> law? What am I missing? Any thoughts or comments? I was considering a
> Motion to Value and then treating the judgment as unsecured, but it doesnot
> solve the chain of title problem created when the abstract of judgment
was
> recorded.
>
No. You are not saying there is any equity. You are just
claiming an exemption. Schedule A valuation of the property on the
Petition Date does not change any.

Mark T.
JesseeLaw Offices of Mark T. Jessee"A Debt Relief Agency"50 W.Hillcrest Drive, Suite 200Thousand Oaks, CA 91360(805) 497-5868 (805)
497-5864 (Facsimile)

In a message dated 7/25/2013 12:29:13 P.M. Pacific Daylight Time,
sam@southbaybk.com writes:


If I claim a penny of exemption, doesn't that defeat my Motion to Avoid
Junior Mortgage??--- In
The post was migrated from Yahoo.

If I claim a penny of exemption, doesn't that defeat my Motion to Avoid Junior Mortgage??
>
> You need to claim an actual amount as exempt. Amend Schedule C and claim
> a penny of the wild card and then refile your 522(f) motion.
>
> Mark T. Jessee
> Law Offices of Mark T. Jessee
> "A Debt Relief Agency"
> 50 W. Hillcrest Drive, Suite 200
> Thousand Oaks, CA 91360
> (805) 497-5868 (805) 497-5864 (Facsimile)
>
>
>
> In a message dated 7/25/2013 11:29:43 A.M. Pacific Daylight Time,
> sam@... writes:
>
>
>
>
> I just had Judge Brand deny a 522(f) motion to avoid judicial lien in a > Chapter 13 case because the property is underwater. I did claim the homestead
> exemption - but had to value it at zero (we are also avoiding a Junior > Mortgage on the property). The Court says that the lien does not impair the
> homestead exemption since the claimed exemption is zero. Is Higgins still good
> law? What am I missing? Any thoughts or comments? I was considering a
> Motion to Value and then treating the judgment as unsecured, but it does not
> solve the chain of title problem created when the abstract of judgment was
> recorded.
>

The post was migrated from Yahoo.

You need to claim an actual amount as exempt. Amend Schedule C and claima penny of the wild card and then refile your 522(f) motion.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868 (805) 497-5864 (Facsimile)
In a message dated 7/25/2013 11:29:43 A.M. Pacific Daylight Time,
sam@southbaybk.com writes:
I just had Judge Brand deny a 522(f) motion to avoid judicial lien in a Chapter 13 case because the property is underwater. I did claim the homestead
exemption - but had to value it at zero (we are also avoiding a Junior
Mortgage on the property). The Court says that the lien does not impair thehomestead exemption since the claimed exemption is zero. Is Higgins still good
law? What am I missing? Any thoughts or comments? I was considering a
Motion to Value and then treating the judgment as unsecured, but it does not
solve the chain of title problem created when the abstract of judgment wasrecorded.
You need to claim an actual amount as exempt. Amend Schedule C and
claim a penny of the wild card and then refile your 522(f) motion.

Mark T.
JesseeLaw Offices of Mark T. Jessee"A Debt Relief Agency"50 W.Hillcrest Drive, Suite 200Thousand Oaks, CA 91360(805) 497-5868 (805)
497-5864 (Facsimile)

In a message dated 7/25/2013 11:29:43 A.M. Pacific Daylight Time,
sam@southbaybk.com writes:


I just had Judge Brand deny a 522(f) motion to avoid judicial lien in a
Chapter 13 case because the property is underwater. I did claim the homestead
exemption - but had to value it at zero (we are also avoiding a Junior
Mortgage on the property). The Court says that the lien does not impair the
homestead exemption since the claimed exemption is zero. Is Higgins still good
law? What am I missing? Any thoughts or comments? I was considering a Motion
to Value and then treating the judgment as unsecured, but it does not solve
the chain of title problem created when the abstract of judgment was
recorded.

The post was migrated from Yahoo.

Just exempt the max even though there's no equity and refile. NB and SK do this too.

The post was migrated from Yahoo.

I just had Judge Brand deny a 522(f) motion to avoid judicial lien in a Chapter 13 case because the property is underwater. I did claim the homestead exemption - but had to value it at zero (we are also avoiding a Junior Mortgage on the property). The Court says that the lien does not impair the homestead exemption since the claimed exemption is zero. Is Higgins still good law? What am I missing? Any thoughts or comments? I was considering a Motion to Value and then treating the judgment as unsecured, but it does not solve the chain of title problem created when the abstract of judgment was recorded.

The post was migrated from Yahoo.