Central District Consumer Bankruptcy Attorney's Association

This was the case I was looking for that was cited in a recent CDCBAA MCLE.
Holly
Holly Roark
Certified Bankruptcy Specialist*
holly@roarklawoffices.com **primary email address**
www.roarklawoffices.com
Central District of California
Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600
Los Angeles, CA 90067
T (310) 553-2600
F (310) 553-2601
*By State Bar of California Board of Legal Specialization
**For a quicker response, email me at holly@roarklawoffices.com.
I only use gmail for my listservs, and am likely to miss private emails
directed to my gmail account.**
On Thu, May 2, 2013 at 12:00 PM, Nicholas Gebelt wrote:
> **
>
>
> Dear Dennis,****
>
> ** **
>
> Oops. I read your fact pattern a little more closely and see that *In re
> Kuiken* is inapposite to your case because your client maintained
> continuous ownership in the property. Therefore, I agree that Joe has the
> best view on the question.****
>
> ** **
>
> Good luck,****
>
> ** **
>
> Nick****
>
> ** **
>
> Nicholas Gebelt, Ph.D., J.D.****
>
> Board Certified Bankruptcy Specialist****
>
> ** **
>
> [image: 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/****
>
> ** **
>
> *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.*
> ***
>
> ** **
>
> *From:* Nicholas Gebelt
> *Sent:* Thursday, May 02, 2013 11:51 AM
> *To:* cdcbaa@yahoogroups.com
> *Cc:* Nicholas Gebelt
> *Subject:* RE: [cdcbaa] Homestead****
>
> ** **
>
> Dear Dennis,****
>
> ** **
>
> I believe the BAP has answered your question: [W]e hold that because the
> debtor did not maintain a continuous interest in the property subject to
> the lien from the time the lien fixed until the petition date, *he is not
> entitled to avoid the lien* based on his homestead exemption. *In re
> Kuiken*, 484 BR 766, 767 (B.A.P. 9th Cir. 2013) (emphasis added)
> (available at:
> http://scholar.google.com/scholar_case? ... as_sdt2003
> ).****
>
> ** **
>
> All the best,****
>
> ** **
>
> Nick****
>
> ** **
>
> Nicholas Gebelt, Ph.D., J.D.****
>
> Board Certified Bankruptcy Specialist****
>
> ** **
>
> [image: 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/****
>
> ** **
>
> *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.*
> ***
>
> ** **
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
> *On Behalf Of *Dennis
> *Sent:* Wednesday, May 01, 2013 8:19 PM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* Re: [cdcbaa] Homestead****
>
> ** **
>
> ****
>
> The problem for the client is that he abandoned his homestead. He moved
> out and rented the property without filing a declared homestead. While out
> the cred filed an abstract. So question is, can debtor move back in and
> avoid a lien which preceded the 2nd claim of homestead. ****
>
> ** **
>
> Right now it appears Joe has given the best advice. ****
>
> ** **
>
> D
>
> Sent from my iPhone****
>
>
> On May 1, 2013, at 3:52 PM, Link Schrader
> wrote:****
>
> ****
>
> If the client is living in the home and owns the home, he is protected by
> the automatic homestead exemption even without recording a homestead
> declaration. The information below is taken from the Rutter Guide on
> California Bankruptcy: ****
>
> ****
>
> *California Nonbankruptcy Homestead Exemptions*****
>
> a. *Overview:* California's regular nonbankruptcy exemptions (Calif. CCP
> 704.010 et seq.
The post was migrated from Yahoo.

The problem for the client is that he abandoned his homestead. He moved out and rented the property without filing a declared homestead. While out the cred filed an abstract. So question is, can debtor move back in and avoid a lien which preceded the 2nd claim of homestead.
Right now it appears Joe has given the best advice.
D
Sent from my iPhone
On May 1, 2013, at 3:52 PM, Link Schrader wrote:
> If the client is living in the home and owns the home, he is protected by the automatic homestead exemption even without recording a homestead declaration. The information below is taken from the Rutter Guide on California Bankruptcy:
>
> California Nonbankruptcy Homestead Exemptions
> a. Overview: California's regular nonbankruptcy exemptions (Calif. CCP > (1) [7:470.1] Automatic homestead exemption (Calif. CCP 704.710 et seq.): California debtors are automatically entitled to claim a homestead exemption against the forced judicial sale of a dwelling owned and occupied by the debtor or debtor's spouse. [Calif. CCP 704.710 et seq.]
> (2) Declared homestead (Calif. CCP 704.910(a)): At one time, a homeowner had to record a declaration of homesteaduse eligible property owners are automatically entitled to the automatic homestead exemption as protection against a forced sale (above).
> However, homeowners who create a declared homestead by recording a homestead declaration and satisfying the residency requirement receive certain benefits in addition to those provided by the automatic homestead exemption. [See Calif. CCP 704.910(a), discussed at 7:506 ff.]
>
> > PRACTICE POINTER: Where the debtor intends to sell his or her residence before or after bankruptcy, recording a declaration of homestead can provide additional protection where the sale is considered voluntaryatic homestead only applies to forced sales (below).
>
>
> b. Automatic homestead exemption (Calif. CCP 704.710 et seq.)
> (1) Limited to forced judicial sales: The automatic homestead exemption applies only to forced judicial sales of a debtor's dwelling. If the sale is voluntary, the automaticilson (9th Cir. 1996) 90 F3d 347, 350351]
>
> Link Schrader, Attorney
>
> Law Office of Link W. Schrader
>
> Mail: P.O. Box 3723, Tustin, CA 92781
>
> Office: 106 W. 4th Street, Suite #308, Santa Ana, CA 92701
>
> Office: (714) 542-5922; Mobile/Text: (310) 413-6924
>
> San Diego: (619) 952-8342; Fax: (310) 878-4158
>
> www.schrader-law.com
>
> ______________________________________________________________________________________________________
>
> This communication and any files transmitted with it contain information which is confidential and may be privileged and exempt from disclosure under applicable law. It is intended solely for the use of the individual or intended recipient. You are hereby notified that any use, dissemination or copying of this communication is strictly prohibited. If you have received this communication in error, please notify the sender. Thank you for your cooperation.
>
>
>
> On Wed, May 1, 2013 at 10:57 AM, DennisM wrote:
>>
>> Client inherited home from mom. He lived with mom before and after death of mom.
>> Client sued by creditor.
>> Judgment issued.
>> Client gets sick, goes to hospital and then moves in with brother while rehabilitating.
>> No declared homestead.
>> Judgment recorded.
>> Client doesn't want home empty, rents to 3rd party.
>> Can client move back in, record a declared homestead, file bk and remove the lien because it impairs the homestead recorded after the judgment?
>>
>> Also, searching, but cannot find the 546(p) exemption cap?
>> d
>
>
> Link Schrader, Attorney
> Law Office of Link W. Schrader
> Mail: P.O. Box 3723, Tustin, CA 92781
> Office: 106 W. 4th Street, Suite #308, Santa Ana,
> CA 92701
> Office: (714) 542-5922; Mobile/Text: (310) 413-6924
> San Diego: (619) 952-8342; Fax: (310) 878-4158
> www.schrader-law.com
> ______________________________________________________________________________________________________
> This communication and any files transmitted with it contain information which is confidential and may be privileged and exempt from disclosure under applicable law. It is intended solely for the use of the individual or intended recipient. You are hereby notified that any use, dissemination or copying of this communication is strictly prohibited. If you have received this communication in error, please notify the sender. Thank you for your cooperation.
>
>

The post was migrated from Yahoo.

If the client is living in the home and owns the home, he is protected by
the automatic homestead exemption even without recording a homestead
declaration. The information below is taken from the Rutter Guide on
California Bankruptcy:
*California Nonbankruptcy Homestead Exemptions*
a. *Overview:* California's regular nonbankruptcy exemptions (Calif. CCP 704.010 et seq.
The post was migrated from Yahoo.

Agree with Holly; outside of BK judgment lien takes priority, inside BK the homestead does as exemptions determined as of date of filing petition. We had it come up once and Judge Ahart ruled in our favor per the attached excerpt from his 2009 Rutter Guide.
Joseph E. Caceres, Esq.
Caceres & Shamash, LLP
8200 Wilshire Blvd., Suite 400
Beverly Hills, CA 90211
Tel: (310) 205-3400
Fax: (310) 878-8308
E-mail: jec@locs.com

The post was migrated from Yahoo.

$155,675 as of April 1, 2013
>
> Yes. Sorry 522p
>
> On Wednesday, May 1, 2013, Clifford Bordeaux wrote:
>
> > **
> >
> >
> > 522(p)?
> >
> >
> > On Wed, May 1, 2013 at 10:57 AM, DennisM > > wrote:
> >
> >> **
> >>
> >>
> >> Client inherited home from mom. He lived with mom before and after death
> >> of mom.
> >> Client sued by creditor.
> >> Judgment issued.
> >> Client gets sick, goes to hospital and then moves in with brother while
> >> rehabilitating.
> >> No declared homestead.
> >> Judgment recorded.
> >> Client doesn't want home empty, rents to 3rd party.
> >> Can client move back in, record a declared homestead, file bk and remove
> >> the lien because it impairs the homestead recorded after the judgment?
> >>
> >> Also, searching, but cannot find the 546(p) exemption cap?
> >> d
> >>
> >>
> >
> >
> > --
> > Clifford Bordeaux
> > Bordeaux Law, P.C.
> > 790 E. Colorado Boulevard, 9th Floor
> > Pasadena, CA 91101
> > T: 626-405-2345 / F: 626-4-628-1820 E: cliff@...
> >
> >
> >
> >
>

The post was migrated from Yahoo.

Yes. Sorry 522p
On Wednesday, May 1, 2013, Clifford Bordeaux wrote:
> **
>
>
> 522(p)?
>
>
> On Wed, May 1, 2013 at 10:57 AM, DennisM > wrote:
>
>> **
>>
>>
>> Client inherited home from mom. He lived with mom before and after death
>> of mom.
>> Client sued by creditor.
>> Judgment issued.
>> Client gets sick, goes to hospital and then moves in with brother while
>> rehabilitating.
>> No declared homestead.
>> Judgment recorded.
>> Client doesn't want home empty, rents to 3rd party.
>> Can client move back in, record a declared homestead, file bk and remove
>> the lien because it impairs the homestead recorded after the judgment?
>>
>> Also, searching, but cannot find the 546(p) exemption cap?
>> d
>>
>>
>
>
> --
> Clifford Bordeaux
> Bordeaux Law, P.C.
> 790 E. Colorado Boulevard, 9th Floor
> Pasadena, CA 91101
> T: 626-405-2345 / F: 626-4-628-1820 E: cliff@bordeauxlaw.com
>
>
>
>
Yes. Sorry 522pOn Wednesday, May 1, 2013, Clifford Bordeaux wrote:
522(p)?On Wed, May 1, 2013 at 10:57 AM, DennisM
The post was migrated from Yahoo.

Outside of BK the judgment lien would have priority over the later recorded
homestead (hence the point of recording a homestead prior to judgment
liens), but since debtor gets an automatic homestead in BK, he should be
able to remove the judgment lien.
I believe there was a case in the materials at one of our recent MCLEs
where the debtor was not able to remove a judgment lien because he was not
on TITLE when the judgment lien was recorded (title had passed back and
forth between family members), but I think your facts are different. Sorry
I don't have the cite to that case.
Holly Roark
Certified Bankruptcy Specialist*
holly@roarklawoffices.com **primary email address**
www.roarklawoffices.com
Central District of California
Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600
Los Angeles, CA 90067
T (310) 553-2600
F (310) 553-2601
*By State Bar of California Board of Legal Specialization
**For a quicker response, email me at holly@roarklawoffices.com.
I only use gmail for my listservs, and am likely to miss private emails
directed to my gmail account.**
On Wed, May 1, 2013 at 10:57 AM, DennisM wrote:
> **
>
>
> Client inherited home from mom. He lived with mom before and after death
> of mom.
> Client sued by creditor.
> Judgment issued.
> Client gets sick, goes to hospital and then moves in with brother while
> rehabilitating.
> No declared homestead.
> Judgment recorded.
> Client doesn't want home empty, rents to 3rd party.
> Can client move back in, record a declared homestead, file bk and remove
> the lien because it impairs the homestead recorded after the judgment?
>
> Also, searching, but cannot find the 546(p) exemption cap?
> d
>
>
>
Outside of BK the judgment lien would have priority over the later recorded homestead (hence the point of recording a homestead prior to judgment liens), but since debtor gets an automatic homestead in BK, he should be able to remove the judgment lien.
I believe there was a case in the materials at one of our recent MCLEs where the debtor was not able to remove a judgment lien because he was not on TITLE when the judgment lien was recorded (title had passed back and forth between family members), but I think your facts are different. Sorry I don't have the cite to that case.
Certified Bankruptcy Specialist*
holly@roarklawoffices.com**primary email address**
www.roarklawoffices.com
Central District of California
Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600
Los Angeles, CA 90067
T (310) 553-2600
F (310) 553-2601
*By State Bar of California Board of Legal
Specialization
The post was migrated from Yahoo.

522(p)?
On Wed, May 1, 2013 at 10:57 AM, DennisM wrote:
> **
>
>
> Client inherited home from mom. He lived with mom before and after death
> of mom.
> Client sued by creditor.
> Judgment issued.
> Client gets sick, goes to hospital and then moves in with brother while
> rehabilitating.
> No declared homestead.
> Judgment recorded.
> Client doesn't want home empty, rents to 3rd party.
> Can client move back in, record a declared homestead, file bk and remove
> the lien because it impairs the homestead recorded after the judgment?
>
> Also, searching, but cannot find the 546(p) exemption cap?
> d
>
>
>
Clifford Bordeaux
Bordeaux Law, P.C.
790 E. Colorado Boulevard, 9th Floor
Pasadena, CA 91101
T: 626-405-2345 / F: 626-4-628-1820 E: cliff@bordeauxlaw.com
522(p)?<easky1@yahoo.com> wrote:
Client inherited home from mom. He lived with mom before and after death of mom.
Client sued by creditor.
Judgment issued.
Client gets sick, goes to hospital and then moves in with brother while rehabilitating.
No declared homestead.
Judgment recorded.
Client doesn't want home empty, rents to 3rd party.
Can client move back in, record a declared homestead, file bk and remove the lien because it impairs the homestead recorded after the judgment?
Also, searching, but cannot find the 546(p) exemption cap?
d
-- Clifford BordeauxBordeaux Law, P.C.790 E. Colorado Boulevard, 9th FloorPasadena, CA 91101T: 626-405-2345 / F: 626-4-628-1820 E: cliff@bordeauxlaw.com

The post was migrated from Yahoo.

I don't think a recorded homestead is necessary or changes things here. Obviously depends on the equity and whether homestead is impaired. But assuming that it is, yes, you can avoid the judgment lien, but it may depend on the creditor and whether it opposes. See the recent case In re Kuiken, 484 B.R. 766 (9th Cir. BAP 2013).
Frank X. Ruggier
Price Law Group, APC
15760 Ventura Blvd., Suite 1100
Encino, CA 91436
Direct: (818) 205-2406
Fax: (818) 907-2106
www.pricelawgroup.com

The post was migrated from Yahoo.

Client inherited home from mom. He lived with mom before and after death of mom.
Client sued by creditor.
Judgment issued.
Client gets sick, goes to hospital and then moves in with brother while rehabilitating.
No declared homestead.
Judgment recorded.
Client doesn't want home empty, rents to 3rd party.
Can client move back in, record a declared homestead, file bk and remove the lien because it impairs the homestead recorded after the judgment?
Also, searching, but cannot find the 546(p) exemption cap?
d

The post was migrated from Yahoo.