Central District Consumer Bankruptcy Attorney's Association

No, you are limited to the CA exemption amounts (or less, see below)
522(a)(3)(A) is a multi- part test.
1. Did the debtor live in the same state for the last 730 days ?
(note that if one of the years includes Feb 29 of leap year, 730 days is not
the same as 2 years.) If yes, the debtor uses current state exemptions. If
no, then:
2. Did the debtor live in the same place for the last 180 days
immediately before the 730 days? If yes, the debtor uses the exemption for
the place in which they lived for that 180 days. If no, then:
3. During the 180 day period, which place did the debtor live the
longest? Use the exemptions in the place longest lived. (Query: does a tie
go to the runner?)
However, 522(a)(3)(A) is subject to 522(o)and (p) and (q). 522(a)(3)(A) (p)
caps the exemption at $125K for residential real or personal property
acquired during the 1,215 days prior to the filing, except for family farms.
(Residence here includes your residence after you die, i.e. a burial plot.)
There are also exceptions for changing residences in the same state during
the 1,215 days.
Note: This cap has the unfortunate effect of reducing the CA homestead
exemption of $150k for persons over 65, the disabled and persons over 55 who
have annual income of less than $15k (CCP 704.730) to only 125k.
Also Note: Many attorneys and trustees think that 522(a)(3)(A) applies only
to real property. This is wrong. It applies to any property, but the
subsection (p) limits apply to residential property, real or personal.
If you have any questions or concerns, please contact me.
Pat
Patrick T. Green, Esq.
Fitzgerald & Green
Attorneys at Law
1010 E. Union Street
Suite 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
pat@fitzgreenlaw.com

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Potential client moved from Florida to CA 6 months ago has a home in CA with 100k in equity can this client use The unlimited Florida homestead exemption because he was a resident of Florida within the last 2 years?

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Right, but its not the $150,000 homestead exemption Im concerned about;
the mother qualifies for that, no question. Its the potential additional
$75,000 exemption for the daughter. In order for her to qualify for that
exemption, she must be a member of a family unit and one other member of
that family unit (here, the father) must own no interest in the homestead.

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Title is usuualy presumptive ownership of real property, but that presumption is trumped by family code presumption of undue influence ininterspousal transfer. All of the presumptions are subject to litigation. However, its a non-issue on your facts where the debtors reside together in the property and remain married as of the petition date:
Here is an excerpt from motion to expunge lis pendens in former chapter 7 versus junk debt buyer plaintiff:
Where property is acquired in the names of both spouses, such as with the facts of this case, the property is presumptively community property under Family Code Section 2581. The current law governing interspousal transfers of real property provides that a specific presumption of undue influence arises where one spouse obtains an unfair advantage over the other spouse, a breach of fiduciary duty, and requires a reversal of an unfair benefit gained by the interspousal grant deeds of real property. Civil Code Section 5103, subdivision (b) (Family Code Section 721 Subdivision (b)). The conflict between Family Code Section 721 and Evidence Code Section 662 (which looks to title of the property as establishing a presumption of ownership) has been resolved in favor of Family Code Section 721 based upon the legislative intent in enacting protections for interspousal transactions and general rules of statutory construction. See In re Marriage of Haines (1995) 22
Cal.App. 4th 277 (holding that the trial court erred in applying California Evidence Code Section 662 to this case (which established a rebuttable presumption in favor of title) and finding Family Code Section 721 applied (which provides that a rebuttable presumption of undue influence is raised when one spouse obtains an advantage over another in a community property transaction)). See, also, In re Marriage of Delaney (2003) 111 Cal.App.4th 991 (citing to Haines and upholding trial courts decision to apply Family Code Section 721s presumption of undue influence arising from statutory fiduciary relationship between spouses rather than Evidence Code 662s presumption of title owner of record).
However, if eitherjudgment debtor orspouse isover 65, the exemption is $150,000. Therefore, community property issue is moot regarding the exemption issue.
$150,000 for elderly, disabled or low income debtors: The exemption is $150,000 if the judgment debtor or spouse who resides in the homestead at the time of the attempted sale meets either the "elderly," "disabled" or "low income" qualifications as follows (CCP 704.730(a)(3)):

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Ahh..youre right. I forgot it was limited to cares for or maintainsHmmits actually the mother who takes care of the father. Im concerned,
in any event, that the father may have some kind of residual community
property interest in the property despite his quitclaiming it. Any
thoughts on that?

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Mother gets $150,000 or $125,000 plus CMI increase if recently moved into home.
Daughter gets $75,000 as family unit.
1) [6:1025] "Family unit" defined: A "family unit" can be any of the following:a) The judgment debtor and his or her spouse, if they reside together in the homestead; or
b) The judgment debtor or his or her spouse, and at least one of the following persons whom the judgment debtor or his or her spouse cares for or maintains in the homestead: The minor child or minor grandchild of the judgment debtor or the debtor's spouse, or the minor child or grandchild of a deceased spouse or former spouse; or
, or the minor child of a deceased brother or sister of either spouse; or
r his or her spouse; or the father, mother, grandfather or grandmother of a deceased spouse; or
ble to take care of or support himself or herself. [CCP 704.710(b); see In re Billings (BC ND CA 2001) 262 BR 88, 89

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Someone else just posed another possible problem.
Could the daughter possibly NOT be entitled to a separate homestead
exemption because she is part of the family unit ? I dont see why that
would prevent it, but it was raised.

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We would wait to file for mom in any event, because she has other non-exempt
assets. Im just trying to get my ducks in a row.
What about this: Could daughter be entitled to the $75,000 exemption
because she is a member of a family unit and her father (by virtue of the
quitclaim years ago) has no interest in the property?

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would require legal research on CCP. Not much harm in trying it.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
Mark JM
Sent: Tuesday, January 20, 2009 6:28 PM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] Homestead Exemption Question
We would wait to file for mom in any event, because she has other non-exempt
assets. Im just trying to get my ducks in a row.
What about this: Could daughter be entitled to the $75,000 exemption
because she is a member of a family unit and her father (by virtue of the
quitclaim years ago) has no interest in the property?

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No again. The $125k cap only applies to those recently relocating to CA.
If you have been here for 4-1/2 years (I think that's the right number),
then you get the FULL CA exemption. In this case the distinction would not
be relevant because only $100,000 in equity for mom. Some trustees have
deals to reduce costs of sale below 8%. I certainly would explain this to
client, but your best bet is to file the cases sequentially. What 's the
harm in doing this if mom is otherwise judgment proof? By the way, does mom
need to file at all? Get daughter's case filed asap so that if mom dies,
her half goes to daughter and house gets sold because 100% of equity is over
$50k homestead.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
Mark JM
Sent: Tuesday, January 20, 2009 6:01 PM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] Homestead Exemption Question
Looks like that amount was increased to $136,875 when I wasnt looking.

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