Recorded Homestead
Posted: Wed Aug 27, 2014 1:46 pm
Mike:
The Kelley decision cites in re Knudson, for its statement that article 5 applies only to voluntary sales, but here is what Knudson said:
If a judgment creditor seeks to levy upon and sell a dwelling pursuant to a writ of execution, he must do so in compliance with Article 4, and the judgment creditor and the judgment debtor have all the rights and benefits under that article, whether or not a homestead declaration has been recorded. Cal.Code Civ. Proc. 704.970.
Here is 704.970:
Whether or not a homestead declaration has been recorded:
(a) Nothing in this article affects the right of levy pursuant to a writ of execution.
(b) Any levy pursuant to a writ of execution on a dwelling (as defined in Section 704.710) and the sale pursuant thereto shall be made in compliance with Article 4 (commencing with Section 704.710) and the judgment debtor and the judgment creditor shall have all the rights and benefits provided by that article.
So, "Whether or not a homestead declaration has been recorded", a levy, which is a forced sale, has to be made under article 4 and the debtor and the creditor have all of the rights under Article 4.
Ninth Circuit has to go back and read it's prior cases.
Dennis
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Aug 25, 2014, at 10:21 PM, "Michael Avanesian michael@avanesianlaw.com [cdcbaa]" wrote:
>
> If by previous post you mean mine, I respectfully disagree but would be happy to be shown otherwise. The language of Kelley that supports my contention is:
>
> "The Ninth Circuit Court of Appeals has determined that a debtor is not automatically entitled to the protections provided in the Article 4 automatic homestead exemption upon showing a valid declaration of homestead under Article 5. Understanding this distinction is imperative, as the Article 4 exemption protections are applicable in a forced sale context (as here, where Debtor has filed his bankruptcy petition) whereas the Article 5 protections only apply in voluntary sales." at page 19.
>
> Sincerely,
> Michael Avanesian
>
>> On Mon, Aug 25, 2014 at 7:14 PM, cdcbaa cdcbaamailbox@gmail.com [cdcbaa] wrote:
>>
>> The previous post regarding the declared homestead is not correct;
>> from In re Kelly:
>> The declared homestead exemption also provides certain additional benefits to the judgment debtor; e.g., exempt proceeds from a voluntary sale are protected. See Cal.Civ.Proc.Code 704.960. Additionally, judgment liens do not attach to the equity protected by the declared homestead exemption. SeeCal.Civ.Proc.Code 704.950. Finally, protection of the homestead against the attachment of judgment liens may survive the deceased homeowner. SeeCal.Civ.Proc.Code 704.995.
>>
>> Note, the declared homestead provides certain "additional benefits" i.e. it protects from forced sale and from voluntary sale. Involuntary liens don't even attach. The extra benefits are not the only benefits. Declared homestead protects from involuntary sale.
>>
>> d
>>
>>
>> Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
>>
>>
>>> On Aug 25, 2014, at 2:46 PM, "Michael Avanesian michael@avanesianlaw.com [cdcbaa]" wrote:
>>>
>>>
>>> In case you're in a rush, my quick and dirty response is that Article 5 "declared homestead" only applies to voluntary sales. So while they may be claimed, it's not going to protect them from a forced sale by a Chapter 7 Trustee. A case that sort of explains it is In re Kelley, 300 BR 11.
>>>
>>> Sincerely,
>>> Michael Avanesian
>>>
>>>> On Mon, Aug 25, 2014 at 1:11 PM, Larry Simons larry@lsimonslaw.com [cdcbaa] wrote:
>>>>
>>>> All,
>>>>
>>>>
>>>>
>>>> I know that debtor(s) must either choose the set of exemptions found at CCP 704.010 et seq or CCP 703.140 et seq. My question is: can a debtor who has recorded a homestead declaration prepetition, elect the set of exemptions under CCP 703.140, but still claim the recorded declaration under CCP 704.950. Note the automaticerent portions of the CCP.
>>>>
>>>>
>>>>
>>>> Thoughts?
>>>>
>>>>
>>>>
>>>> Thanks, Larry Simons
>>>>
>
>
Mike:The Kelley decision cites in re Knudson, for its statement that article 5 applies only to voluntary sales, but here is what Knudson said:If a judgment creditor seeks to levy upon and sell a dwelling pursuant to a writ of execution, he must do so in compliance with Article 4, and the judgment creditor and the judgment debtor have all the rights and benefits under that article, whether or not a homestead declaration has been recorded. Cal.Code Civ. Proc. 704.970.Here is 704.970:Whether or not a homestead declaration has been recorded:(a) Nothing in this article affects the right of levy pursuant to a writ of execution.(b) Any levy pursuant to a writ of execution on a dwelling (as defined in Section 704.710) and the sale pursuant thereto shall be made in compliance with Article 4 (commencing with Section 704.710) and the judgment debtor and the judgment creditor shall have all the rights and benefits provided by that article.So, "Whether or not a homestead declaration has been recorded", a levy, which is a forced sale, has to be made under article 4 and the debtor and the creditor have all of the rights under Article 4.Ninth Circuit has to go back and read it's prior cases. DennisDennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voiceOn Aug 25, 2014, at 10:21 PM, "Michael Avanesian michael@avanesianlaw.com [cdcbaa]" <cdcbaa@yahoogroups.com> wrote:
If by previous post you mean mine, I respectfully disagree but would be happy to be shown otherwise. The language of Kelley that supports my contention is:"The Ninth Circuit Court of Appeals has determined that a debtor is not automatically entitled to the protections provided in the Article 4 automatic homestead exemption upon showing a valid declaration of homestead under Article 5. Understanding this distinction is imperative, as the Article 4 exemption protections are applicable in a forced sale context (as here, where Debtor has filed his bankruptcy petition) whereas the Article 5 protections only apply in voluntary sales." at page 19.
Sincerely, Michael AvanesianOn Mon, Aug 25, 2014 at 7:14 PM, cdcbaa cdcbaamailbox@gmail.com [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
The previous post regarding the declared homestead is not correct;from In re Kelly:The declared homestead exemption also provides certain additional benefits to the judgment debtor; e.g., exempt proceeds from a voluntary sale are protected. See Cal.Civ.Proc.Code 704.960. Additionally, judgment liens do not attach to the equity protected by the declared homestead exemption. SeeCal.Civ.Proc.Code 704.950. Finally, protection of the homestead against the attachment of judgment liens may survive the deceased homeowner. SeeCal.Civ.Proc.Code 704.995.
Note, the declared homestead provides certain "additional benefits" i.e. it protects from forced sale and from voluntary sale. Involuntary liens don't even attach. The extra benefits are not the only benefits. Declared homestead protects from involuntary sale.
dDennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
On Aug 25, 2014, at 2:46 PM, "Michael Avanesian michael@avanesianlaw.com [cdcbaa]" <cdcbaa@yahoogroups.com> wrote:
In case you're in a rush, my quick and dirty response is that Article 5 "declared homestead" only applies to voluntary sales. So while they may be claimed, it's not going to protect them from a forced sale by a Chapter 7 Trustee. A case that sort of explains it is In re Kelley, 300 BR 11.
Sincerely, Michael AvanesianOn Mon, Aug 25, 2014 at 1:11 PM, Larry Simons larry@lsimonslaw.com [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
The post was migrated from Yahoo.