The Debtor has over 100k in equity after calculating cost of sale. I assume
this based on your statement that "he should at least keep his exemption."
The excess equity can be used to fund the litigation since your admin claim
comes before the creditors.
If you lose, you convert to Ch 7. Let the ch 7 trustee make some money. As
long as your client is allowed to keep his exemption, as he wanted, what
does he or you care about where the excess goes?
Under either scenario, the distribution to creditors is reduced. It is
unclear, based on that, what duty the Ch 13 Trustee is trying to comply
with.
Sincerely,
*Michael Avanesian, Esq. *
Avanesian Law Firm
801 N. Brand Blvd., Suite #1130
Glendale, CA 91203
Tel: 818.276.2477 | Fax: 818.208.4550
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On Sat, Feb 6, 2016 at 5:48 PM, Nicholas Gebelt
ngebelt@gebeltlaw.com
[cdcbaa] wrote:
>
>
> Dear Pat,
>
>
>
> You are, of course, correct that *Burgie *Court held that exemption is
> irrelevant to the analysis how I miss Judge Bufford. In *Burgie* the
> Chapter 13 Trustee didnt object to the debtors homestead exemption.
> Instead, the battle was over whether the sale proceeds constituted future
> earnings. As a consequence, the distinction between voluntary and forced
> sales didnt, and according to the *Burgie *Court, shouldn>
>
>
> However, Danielson made it clear to me that he will challenge the
> legitimacy of the exemption as a basis for seizing the sale proceeds, and
> has already entered a demand on escrow to get all of the net proceeds. His
> stridency could implicate the *Wilson* holding. *Burgie *is a BAP case > not binding precedent while* Wilson *is a Ninth Circuit case. Given
> that the judge is Wayne Johnson, and my client has no money to fund any
> litigation, I think the Chapter 7 conversion may be the safest route to
> take. She plans on relocating to another state, and will buy a house there
> within the statutory six-month reinvestment period.
>
>
>
> Thanks for your thoughts.
>
>
>
> Nick
>
>
>
> *Nicholas Gebelt*
>
>
>
> Nicholas Gebelt, Ph.D., J.D.
>
> Attorney at Law
>
> Certified Bankruptcy Law Specialist State Bar of California Board of
> Legal Specialization
>
> Commissioner, California State Bars Bankruptcy Law Advisory Committee
>
>
>
> [image: Description: Description: 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/
>
>
>
> *Important notice required by 11 U.S.C. 528:* 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
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> Dissemination, distribution, or copying of this e-mail or the information
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> 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]
> *Sent:* Saturday, February 06, 2016 3:00 PM
> *To:*
cdcbaa@yahoogroups.com
> *Cc:*
ngebelt@goodbye2debt.com
> *Subject:* [cdcbaa] RE: Homestead exemption in a voluntary sale
>
>
>
>
>
> Nick:
>
>
>
> Those cases do not address the issues that were raised in In re Burgie,
> 239 BR 406. In essence, Burgie states that exemption is never an issue,
> because the sale proceeds are not disposable income and therefore not
> available to pay creditors.
>
>
>
> 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: (626) 449-8433
>
> Fax: (626) 449-0565
>
>
pat@fitzgreenlaw.com
>
>
>
>
>
> *From:*
cdcbaa@yahoogroups.com [mailto:
cdcbaa@yahoogroups.com
> ]
> *Sent:* Saturday, February 06, 2016 11:52 AM
> *To:*
cdcbaa@yahoogroups.com
> *Cc:*
ngebelt@goodbye2debt.com
> *Subject:* [cdcbaa] RE: Homestead exemption in a voluntary sale
> *Importance:* High
>
>
>
>
>
> Dear Pat,
>
>
>
> Heres the Ninth Circuits position:
>
>
>
> In California, however, the automatic homestead exemption protects a
> debtor only in the context of a forced lien sale. *See* Cal. Civ. Proc.
> Code 704.720(b) & 704.740(a); *Schwaber v. Reed* (*In re Reed*), 940
> F.2d 1317, 1321 (9th Cir.1991) ([T]he homestead exemption in California
> is merely a debtors right to retain a certain sum of money when the court
> orders sale of a homestead in order to enforce a money judgment . . .> Empire Production Credit Assoc. v. Anderson* (*In re Anderson*), 824 F.2d
> 754, 757 (9th Cir. 1987). A debtor who seeks homestead protection in the
> context of a voluntary sale must record a declaration of homestead. *See*
> Cal. Civ. Proc. Code 704.960; *Anderson*, 824 F.2d at 757. Under
> California law, should a forced lien sale occur, a debtor will receive his
> statutory homestead exemption before payment of the judgment lien because a
> debtors homestead exemption is senior in priority to a judgment lien.
> *See* Cal. Civ. Proc. Code 704.850; *see also Amiri*, 184 B.R. at 63
> (In the event of a forced lien sale, the levying officer is required to
> distribute the proceeds to pay off all consensual liens and the debtor> homestead exemption prior to satisfying any judgment liens.).
>
>
>
> *In re Wilson*, 90 F. 3d 347, 351 (9th Cir. 1996).
>
>
>
> Much as I hate to admit it, Rod Danielson is correct.
>
>
>
> All the best,
>
>
>
> Nick
>
>
>
> *Nicholas Gebelt*
>
>
>
> Nicholas Gebelt, Ph.D., J.D.
>
> Attorney at Law
>
> Certified Bankruptcy Law Specialist State Bar of California Board of
> Legal Specialization
>
> Commissioner, California State Bars Bankruptcy Law Advisory Committee
>
>
>
> [image: Description: Description: 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/
>
>
>
> *Important notice required by 11 U.S.C. 528:* 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
> ]
> *Sent:* Saturday, February 06, 2016 10:48 AM
> *To:*
cdcbaa@yahoogroups.com
> *Cc:*
ngebelt@goodbye2debt.com
> *Subject:* [cdcbaa] RE: Homestead exemption in a voluntary sale
>
>
>
>
>
> Nick:
>
>
>
> I read the case that Larry cited. It is a BAP decision that says property
> of the estate at the start of a 13 is a capital asset and if converted to
> cash post filing is not disposable income. It further says that because of
> this the issue of exemption is irrelevant.
>
>
>
> Did you consider this case? It is a 1999 case. I have not had time to
> shepardize or to see if BAPCPA changes affect the analysis.
>
>
>
> As to conversion, how much is the non-exempt amount that the Ch 7 trustee
> is going to get (Larry and Wes can be heard salivating in the background)?
> If it is a large amount, there may be a better solution.
>
>
>
> 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: (626) 449-8433
>
> Fax: (626) 449-0565
>
>
pat@fitzgreenlaw.com
>
>
>
>
>
> *From:*
cdcbaa@yahoogroups.com [mailto:
cdcbaa@yahoogroups.com
> ]
> *Sent:* Friday, February 05, 2016 8:17 PM
> *To:*
cdcbaa@yahoogroups.com
> *Cc:*
ngebelt@goodbye2debt.com
> *Subject:* [cdcbaa] Homestead exemption in a voluntary sale
> *Importance:* High
>
>
>
>
>
> Dear Listmates,
>
>
>
> Thank you for all of the responses. As I understand things, based on the
> responses and my research into the case law, the debtor gets the exemption
> only if either the sale is a forced sale such as when done by a Chapter 7
> Trustee, or if she recorded her homestead declaration when she bought the
> home. She didnt record the homestead, and the sale in the Chapter 13 was
> going to be a voluntary sale, so the Trustee would get the proceeds.
> Therefore, I will withdraw the motion for authority to sell.
>
>
>
> We originally filed a Chapter 13 instead of a Chapter 7 because there was
> a fair amount of nonexempt equity, and at the time the debtor didn> to lose the house. Now the debtor wants to sell the property, get her
> $100,000 exemption, and leave California. But she also wants a discharge
> because she still has a fair amount of debt, a little of which is
> postpetition. She had funded the plan using contributions from relatives,
> who have grown tired of helping her. Therefore, I think the best solution
> is to convert to Chapter 7. Then she will discharge both the prepetition
> and postpetition debt, and get her $100,000 exemption upon liquidation by
> the Chapter 7 Trustee.
>
>
>
> I hope my learning experience in this case will help you if you face
> similar facts in the future.
>
>
>
> All the best,
>
>
>
> Nick
>
>
>
> *Nicholas Gebelt*
>
>
>
> Nicholas Gebelt, Ph.D., J.D.
>
> Attorney at Law
>
> Certified Bankruptcy Law Specialist State Bar of California Board of
> Legal Specialization
>
> Commissioner, California State Bars Bankruptcy Law Advisory Committee
>
>
>
> [image: Description: Description: 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/
>
>
>
> *Important notice required by 11 U.S.C. 528:* 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.
>
>
>
The Debtor has over 100k in equity after calculating cost of sale. I assume this based on your statement that "he should at least keep his exemption."The excess equity can be used to fund the litigation since your admin claim comes before the creditors.If you lose, you convert to Ch 7. Let the ch 7 trustee make some money. As long as your client is allowed to keep his exemption, as he wanted, what does he or you care about where the excess goes?Under either scenario, the distribution to creditors is reduced. It is unclear, based on that, what duty the Ch 13 Trustee is trying to comply with.Sincerely,Avanesian Law Firm801 N. Brand Blvd., Suite #1130Glendale, CA 91203Tel: 818.276.2477 | Fax:818.208.4550
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