Automatic Homestead Exemption
Posted: Tue Mar 07, 2017 9:00 pm
Hi Group,
If Debtor's home is located on adjacent lots with home on Assessor's
Parcel No. 1 and backyard with Assessor's Parcel No. 2, can Debtor avoid ajudgment lien on his home and backyard? or just the home??
I don't see that the home includes adjacent lots, appurtenent structures, adjoining lots, etc. Anyone ever have to deal with this?
I'd like to expand to multiple lots.... and then a kicker.
Very truly yours,
Shai Oved
The Law Offices of Shai Oved
7445 Topanga Cyn. Blvd., Suite 220
_Canoga Park, California 91303_ (x-apple-data-detectors://0/0)
Tel: _(818) 992-6588_ (tel:(818)%20992-6588)
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Email: ssoesq@aol.com
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In a message dated 11/18/2016 10:16:39 A.M. Pacific Standard Time,
cdcbaa@yahoogroups.com writes:
See CCP 704.710(c). Because the judgment creditor has the right tochallenge the homestead claim and successfully did so in state court, the propert
y is not entitled to the exemption. Accordingly there is no homestead
exemption as to that creditor. It's Res Judicata in any subsequent bankruptcy
case. The judgment debtor's only option is to attempt to have the state
court reconsider its ruling, if there is a basis for reconsideration.
Mark Jessee
Sent from my iPhone
On Nov 15, 2016, at 7:43 PM, Chris Gautschi sanschromo@yahoo.com [cdcbaa]
wrote:
I am stupid I don't understand. If the ccp give an automatic homestead
then a judgment lien as a probate fee lien is perfected why can't the lien be
avoided ?
Sent from my iPhone
On Nov 15, 2016, at 7:13 PM, jesseelaw@aol.com [cdcbaa]
wrote:
Apparently, the lien must be large if there is no equity remaining after
the lien is paid off. The question is whether the lien is voluntary or
involuntary? Was this from a separate action for fees making it an involuntary
lien? Or was the lien imposed as part of the probate proceedings, which
may make it voluntary? If voluntary, then no exemption in front of the
lien. If involuntary then the debtor can look to a 522(f) motion using the 703
exemptions.
If the debtor lacked legal capacity at the time of the exemption hearing,that may be a basis for a motion for reconsideration. You will need a
medical evaluation for that and may need to pursue a guardian ad litem or even
a conservatorship in the Superior Court.
I also would investigate the former attorneys source of knowledge for the
debtor allegedly not living in the residence. Attorney cannot
subsequently use against the former client knowledge gained from the client during the
course of the prior rerpresentation without violating attorney client
privilege.
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 11/15/2016 6:14:02 P.M. Pacific Standard Time,
cdcbaa@yahoogroups.com writes:
Sorry I hit send too soonMark you gave me a great idea! I understand why
Debtor cant get the homestead exemption per your analysis below and that
makes sense. He must have the homestead before the lien is recorded. But he
can still get the wildcard which will at least save something for him. Otherwise, is there any other creative way to overcome a prior state courtorder?
Shannon A. Doyle
Attorney | Virtual Bankruptcy Assistant
Phone: 855-378-4080
Fax: 562-249-8435
Licensed in California
(http://www.ebankruptcyassistants.com/)
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(https://plus.google.com/u/0/) (http://www.linkedin.com/home?trknav_responsive_tab_home)
Sent: Tuesday, November 15, 2016 5:02 PM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] RE: Automatic Homestead Exemption
The debtor resided in and owned the property (as sole heir) prior to the probate attorneys lien.
Shannon A. Doyle
Attorney | Virtual Bankruptcy Assistant
Phone: 855-378-4080
Fax: 562-249-8435
Licensed in California
(http://www.ebankruptcyassistants.com/)
(https://www.facebook.com/ebankruptcyassistants) (https://twitter.com/attorneyvba)
(https://plus.google.com/u/0/) (http://www.linkedin.com/home?trknav_responsive_tab_home)
Sent: Tuesday, November 15, 2016 4:18 PM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] RE: Automatic Homestead Exemption
The debtor does not receive a second bite at the same apple in a Chapter
7! See CCP 704.710(c). Any judgment creditor lien recorded prior to the
property being the judgment debtors residence takes precedence over the
homestead exemption. The debtor is entitled to the homestead exemption as
to everybody else now that he resides at the subject property as the
Superior Court order is Res Judicata only as to the probate case lawyerThus in this instance the probate lawyers lien stands in front of the
debtors automatic homestead exemption, but the homestead exemption applies to
all other creditors because it is now the debtors personal residence. As
to the issue of voluntary vs. involuntary lien Pat raises, it does not matter as to the debtor because, regardless, the lien does not impair an exemption. (Unless of course the property equity is small enough that the CCP
he
auspices of 547 somehow then that becomes an interesting question as to the
trustees rights, but like John my mind is not ready to delve into it.
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 11/15/2016 3:00:31 P.M. Pacific Standard Time,
cdcbaa@yahoogroups.com writes:
Hello Shannon:
I think your question is about claim preclusion. Can the debtor claim a
homestead now when it was litigated before and the court determined he didn't
have a homestead?
I'd look at the elements of claim preclusion, and say yes, the debtor canclaim the homestead in bankruptcy. The issue isn't exactly the same as inthe prior litigation, because time has passed and the facts have changed.Did he have a homestead then is not the same issue as whether he has a
homestead now if he has a different living pattern.
There is also a question of privity that I am too addled to address at themoment. Is he claiming the homestead as against the trustee, or against
the attorney? Is this for avoidance, or just plain exemption? I'm not surethat the trustee is in privity with the creditor, but more robust minds than
mine today might be able to answer this.
- John
On Tuesday, November 15, 2016 2:47 PM, "Patrick Green pat@fitzgreenlaw.com[cdcbaa]" wrote:
What kind of probate matter? It may make a difference as to whether it isa voluntary or involuntary. If it was the probate of the decedent's
estate, then lien may be voluntary. If it is for fees for some other kind of
probate matter it would quite likely be involuntary.
If you have any questions or concerns, please contact me.
Pat
Patrick T. Green
Attorney at Law
Fitzgerald Green, Attorneys at Law
1010 E. Union St. Suite 206
Pasadena, CA 91106
Tel: (626) 449-8433
Fax: (626) 449-0565
pat@fitzgreenlaw.com
Sent: Monday, November 14, 2016 11:26 AM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Automatic Homestead Exemption
I have an interesting issue here: Debtor owns property in Lebec, CA (closeto Bakersfield). There is a state court judgment against debtor denying
debtor his homestead exemption. The issue is that at the time Debtor applied
for his homestead exemption he did not reside in his property. In fact
debtor did reside in his property; however he would frequently travel to Los
Angeles for medical treatment and often stayed with friends or his caretaker
rather than make the long drive back and forth to his home. Debtor is
mentally disabled from a traumatic brain injury and was unable to defend
himself or afford legal counsel in the homestead issue, although apparently he
made some arguments but didnt provide evidence and as such he lost the
issue. So it was not a default judgment (still gathering the state court docs to
determine the details). The issue of the homestead arose in connection
with a lien that was placed on his property by an attorney for legal feesincurred in a probate matter. The lienholder now has a sheriffs sale
scheduled.
does he
automatically get a new shot at the homestead exemption as of the date offiling? Or does res judicata prevent debtor from litigating this again inbankruptcy court (this time with the assistance of counsel and actual
evidence?)
____________________________________
.
Hi Group,
If Debtor's home is located on adjacent lots with home on Assessor's
Parcel No. 1 and backyard with Assessor's Parcel No. 2, can Debtor
avoid a judgment lien on his home and backyard? or just the home??
I don't see that the home includes adjacent lots, appurtenent structures,
adjoining lots, etc. Anyone ever have to deal with this?
I'd like to expand to multiple lots.... and then a kicker.
Very truly
yours,Shai OvedThe Law Offices of Shai Oved7445 Topanga Cyn. Blvd.,
Suite 220 Canoga Park,
California 91303Tel: (818)
992-6588Fax: (818)
992-6511Email: ssoesq@aol.com
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