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All good points John and Patrick, but it may not be that simple due to (what I think could be) an added wrinkle to the analysis. Take a look at CCP sec. 704.730. It contains the following language concerning the amount of the homestead exemption: "at the time of the attempted sale." see arguments on both sides. Gary R. WallaceLaw Office of Gary R. Wallace10801 National Boulevard, Suite 100Los Angeles, CA 90064Email: garyrwallace@ymail.comOffice: (310) 571-3511
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To: "cdcbaa@yahoogroups.com"
Sent: Tuesday, November 15, 2016 3:00 PM
Subject: Re: [cdcbaa] RE: Automatic Homestead Exemption [7 Attachments]
hink 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 can claim the homestead in bankruptcy. The issue isn't exactly the same as in the 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 the moment. Is he claiming the homestead as against the trustee, or against the attorney? Is this for avoidance, or just plain exemption? I'm not sure that 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 is a 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:]
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 (close to 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 fees incurred in a probate matter. The lienholder now has a sheriffs sale scheduled. SO THE QUESTION IS: If debtor files chapter 7 to avoid the lien, does he automatically get a new shot at the homestead exemption as of the date of filing? Or does res judicata prevent debtor from litigating this again in bankruptcy court (this time with the assistance of counsel and actual evidence?) Shannon A. Doyle Attorney | Virtual Bankruptcy Assistant Phone: 855-378-4080 Fax: 562-249-8435 Licensed in California
The post was migrated from Yahoo.
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 can claim the homestead in bankruptcy. The issue isn't exactly the same as in the 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 the moment. Is he claiming the homestead as against the trustee, or against the attorney? Is this for avoidance, or just plain exemption? I'm not sure that 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 is a 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:]
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 (close to 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 fees incurred in a probate matter. The lienholder now has a sheriffs sale scheduled. SO THE QUESTION IS: If debtor files chapter 7 to avoid the lien, does he automatically get a new shot at the homestead exemption as of the date of filing? Or does res judicata prevent debtor from litigating this again in bankruptcy court (this time with the assistance of counsel and actual evidence?) Shannon A. Doyle Attorney | Virtual Bankruptcy Assistant Phone: 855-378-4080 Fax: 562-249-843
The post was migrated from Yahoo.