I was looking up Arrol when Larry chimed in. Arrol is a case where debtor
moved from CA to Michigan, but lived the most of the previous 180 days in
CA, so filed bk in CA, using CA exemptions and exempted Michigan property.
At time of filing, debtor lived in Michigan in his Michigan domicile.
It is not a rock solid case for using the CA exemptions on out of state
property. The facts are kind of unique.
It appears they could be tweaked a bit to help this debtor, but only if the
out of state property is the domicile, and only if the debtor lived here
most of the last 180 days.
I have stated this here before, but a former client, changed drivers
license, utilities, etc, to a big bear property, where we took a homestead,
and the trustee hired a P.I. to follow her. Testimony of P.I. was 20 days
in BB, 40 days down here.
Judge ruled BB not a domicile, and no homestead.
be careful out there.
dennis
On Mon, Apr 22, 2013 at 12:22 PM, Larry Simons wrote:
> **
>
>
> The case is *Arrol * (perhaps 2 Ls). Debtor was in Michigan using CA
> exemptions.****
>
> ** **
>
> *From:*
cdcbaa@yahoogroups.com [mailto:
cdcbaa@yahoogroups.com] *On Behalf
> Of *Steven B. Lever
> *Sent:* Monday, April 22, 2013 12:13 PM
> *To:*
cdcbaa@yahoogroups.com
> *Subject:* RE: [cdcbaa] 704 exemption and out of state property****
>
> ** **
>
> ****
>
> I agree with Jays analysis as you have to go through the whole domicile
> analysis, but once youve done that theres a dead bang 9th Circuit Court
> of Appeals case decided in the last 10 years that states you can take
> Californias homestead exemption on out of state properties, but while I
> used to know the name of the case I cannot recall it and have not found it
> in the 10 minutes I have. When I remember it at 3 a.m. Ill let you know,
> but for now I just wanted to let you know the case is out there.****
>
> ****
>
> Steve ****
>
> ****
>
> Steven B. Lever ****
>
> ****
>
> *From:*
cdcbaa@yahoogroups.com [mailto:
cdcbaa@yahoogroups.com] *On Behalf
> Of *Jay Fleischman
> *Sent:* Monday, April 22, 2013 11:26 AM
> *To:*
cdcbaa@yahoogroups.com
> *Subject:* Re: [cdcbaa] 704 exemption and out of state property****
>
> ****
>
> ****
>
> From Langfield:
>
> The meaning of the term "domicile" in a federal statute presents a federal
> question to be determined under federal common law unless Congress
> unambiguously adopts state law Donald v Curry (In re Donald), 328 B R 192,
> 200 (9th Cir BAP 2005) (citingKantor v. Wellesley Galleries, Ltd., 704 F 2d
> 1088 (9th Cir 1983)) In general, a "domicile is one's permanent home, where
> one resides with the intention to remain or to which one intends to return
> and to which certain rights and duties are attached" Id at 202 (citations
> omitted) "Everyone has a domicile and nobody has more than one domicile at
> a time," and "[o]nce established, [a] domicile continues until superseded
> by another domicile" Id.
>
> From Ontiveros v. Michaels Stores, Inc. et al., No. CV 12-09437 MMM
> (FMOx). (CDCA 2013):
>
> A person's domicile is her permanent home, where she resides with the
> intention to remain or to which she intends to return. A person residing in
> a given state is not necessarily domiciled there, and thus is not
> necessarily a citizen of that state"); see also Weible v. United States,
> 244 F.2d 158, 163 (9th Cir. 1957) ("Residence is physical, whereas domicile
> is generally a compound of physical presence plus an intention to make a
> certain definite place one's permanent abode, though, to be su re,domicile
> often hangs on the slender thread of intent alone, as for instance where
> one is a wanderer over the earth. Residence is not an immutable condition
> of domicile").
>
>
> From the tax world, FTB Regulation 17014(c) states:
>
> Domicile has been defined as the place where an individual has his true,
> fixed, permanent home and principal establishment, and to which place he
> has whenever he is absent, the intention of returning.... Another
> definition of "domicile" consistent with the above is the place where an
> individual has fixed his habitation and has permanent residence without any
> present intention of permanently removing therefrom.
>
> Given the above, I'd look to where the debtor works, address for personal
> mail, length of residence in a particular place, driver license address,
> address on tax returns, and the like.
>
> -------------
> Jay S. Fleischman, Esq.
> Shaev & Fleischman, LLP
>
> I help people in the Los Angeles area and New York City get smart
> solutions to their bill problems.
>
>
http://www.ConsumerHelpCentral.com
>
> 556 S Fair Oaks Ave Ste 101-152
> Pasadena CA 91105-2656
>
> 350 Fifth Avenue, Suite 7210
> New York NY 10118
>
> T: 626-808-4343 x704
> E:
jay@sflawca.com
>
> Email isn't secure, so it's not confidential. By communicating with me by
> email, you understand that it's not confidential.
>
> On Apr 22, 2013, at 10:49 AM, Hale Andrew Antico
> wrote:
>
> > bankruptcy 704 homestead exemption domicile****
>
> ****
>
>
>
I was looking up Arrol when Larry chimed in. Arrol is a case where debtor moved from CA to Michigan, but lived the most of the previous 180 days in CA, so filed bk in CA, using CA exemptions and exempted Michigan property. At time of filing, debtor lived in Michigan in his Michigan domicile.
It is not a rock solid case for using the CA exemptions on out of state property. The facts are kind of unique.It appears they could be tweaked a bit to help this debtor, but only if the out of state property is the domicile, and only if the debtor lived here most of the last 180 days.
I have stated this here before, but a former client, changed drivers license, utilities, etc, to a big bear property, where we took a homestead, and the trustee hired a P.I. to follow her. Testimony of P.I. was 20 days in BB, 40 days down here.
Judge ruled BB not a domicile, and no homestead.be careful out there.dennis
On Mon, Apr 22, 2013 at 12:22 PM, Larry Simons <
larry@lsimonslaw.com> wrote:
The case is
Arrol (perhaps 2 Ls). Debtor was in Michigan using CA exemptions.
From:
cdcbaa@yahoogroups.com [mailto:
cdcbaa@yahoogroups.com]
On Behalf Of Steven B. Lever
Sent: Monday, April 22, 2013 12:13 PM
To:
cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] 704 exemption and out of state property
I agree with Jays analysis as you have to go through the whole domicile analysis, but once you Court of Appeals case decided in the last 10 years that states you can take Californias homestead exemption on out of state properties, but while I used to know the name of the case I cannot recall it and have not found it in the 10 minutes I have. When
I remember it at 3 a.m. Ill let you know, but for now I just wanted to let you know the case is out there.
Steve
Steven B. Lever
From:
cdcbaa@yahoogroups.com
[mailto:
cdcbaa@yahoogroups.com] On Behalf Of Jay Fleischman
Sent: Monday, April 22, 2013 11:26 AM
To:
cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] 704 exemption and out of state property
From Langfield:
The meaning of the term "domicile" in a federal statute presents a federal question to be determined under federal common law unless Congress unambiguously adopts state law Donald v Curry (In re Donald), 328 B R 192, 200 (9th Cir BAP 2005) (citingKantor v.
Wellesley Galleries, Ltd., 704 F 2d 1088 (9th Cir 1983)) In general, a "domicile is one's permanent home, where one resides with the intention to remain or to which one intends to return and to which certain rights and duties are attached" Id at 202 (citations
omitted) "Everyone has a domicile and nobody has more than one domicile at a time," and "[o]nce established, [a] domicile continues until superseded by another domicile" Id.
From Ontiveros v. Michaels Stores, Inc. et al., No. CV 12-09437 MMM (FMOx). (CDCA 2013):
A person's domicile is her permanent home, where she resides with the intention to remain or to which she intends to return. A person residing in a given state is not necessarily domiciled there, and thus is not necessarily a citizen of that state"); see also
Weible v. United States, 244 F.2d 158, 163 (9th Cir. 1957) ("Residence is physical, whereas domicile is generally a compound of physical presence plus an intention to make a certain definite place one's permanent abode, though, to be su re,domicile often hangs
on the slender thread of intent alone, as for instance where one is a wanderer over the earth. Residence is not an immutable condition of domicile").
From the tax world, FTB Regulation 17014(c) states:
Domicile has been defined as the place where an individual has his true, fixed, permanent home and principal establishment, and to which place he has whenever he is absent, the intention of returning.... Another definition of "domicile" consistent with the
above is the place where an individual has fixed his habitation and has permanent residence without any present intention of permanently removing therefrom.
Given the above, I'd look to where the debtor works, address for personal mail, length of residence in a particular place, driver license address, address on tax returns, and the like.
Jay S. Fleischman, Esq.
Shaev & Fleischman, LLP
I help people in the Los Angeles area and New York City get smart solutions to their bill problems.
http://www.ConsumerHelpCentral.com
556 S Fair Oaks Ave Ste 101-152
Pasadena CA 91105-2656
350 Fifth Avenue, Suite 7210
New York NY 10118
T: 626-808-4343 x704
E:
jay@sflawca.com
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