Thanks. All I'm trying to do is get the spouse's counsel to agree to
amend the 703 exemptions to reallocate the wildcard to use on a couple
parcels of real estate, instead of on a vehicle. If she doesn't do it,
I need to know if I must file an objection to exemptions, or if that
merely ends up forcing, as the Steward case points out, the use of the
704 series exemptions, which would be very bad for my client.
In our case, the properties are all listed as joint tenants, but they
will most likely be deemed C/P.
*************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
web:
http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what this means at
http://bklaw.com/bankruptcy-blog/2008/0 ... efinition/)
________________________________________________
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IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written 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 in this communication.
On 3/5/2010 3:09 PM, David A. Tilem wrote:
>
>
> Due to my special interest in this area of the law, I pulled the
> Steward case and read it. The decision may, or may not be correct,
> but the reasoning is very bad and there are not enough facts
> provided. Not only that, but the State Court Judge did not help
> matters when s/he issued an Order saying that if s/he had the
> authority to do so, s/he would "distribute the Property to [husband]
> and [wife] as tenants in common".
> The State Court Order is just irrelevant for resolving the bankruptcy
> issues presented by the case. The question is NOT what the State
> Court would do on dissolution, but rather what was the status of the
> ownership of the Property at the time the bankruptcy petition was
> filed. The State Court failed to answer that critical question, so
> its decision is of no significance.
> We are not told whether the property was held by H & W as joint
> tenants, tenants in common or as community property. This makes all
> of the difference in the world.
> If the property was held as community property, then the Trustee in
> Steward is correct. The property belonged to husband's estate (he
> filed first), and there was nothing left in wife's estate (she filed
> last) other than some contingent future interest in any surplus from
> husband's estate and her share of his exempt property. Wife's
> best argument under these facts would be the application of 522(l)
> which might allow her (or later her bankruptcy trustee) to amend
> husband's exemptions or take advantage of CCP 703.140(a) in
> _husband's_ bankruptcy case.
> If the property was held as tenants in common or joint tenants, then
> the Trustee in Steward is wrong. Each spouse, and hence each estate
> owns a separate interest in the property. Each spouse is entitled to
> his/her own exemption, subject of course, to Rule 1015 which only
> applies if the cases are jointly administered. Even then, joint
> administration is not the same as substantive consolidation so there
> is room for some creative lawyering.
> Again, this is not the final answer, but more to consider.
> *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.
> Business bankruptcy specialist cert. by Amer. Bd. of Certification
> -----Original Message-----
> *From:*
cdcbaa@yahoogroups.com [mailto:
cdcbaa@yahoogroups.com] *On
> Behalf Of *P L
> *Sent:* Friday, March 05, 2010 12:10 PM
> *To:*
cdcbaa@yahoogroups.com
> *Subject:* Re: [cdcbaa] Dueling Spouses and CCP 703
>
> You might find the following case useful in your analysis.
>
> /In re Steward/
>
> (9th Cir. BAP 1998) 227 BR 895, 899
>
>
> Peter M. Lively, JD/MBA
> Law Office of Peter M. Lively * Personal Financial Law Center I
> 11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647
> Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462
> A-Bankruptcy-Attorney.com
>
> Personal Financial Law Center II
> 1706-B Newport Boulevard, Costa Mesa, CA 92627-3073
> Telephone: (949)650-3328
>
>
> THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY
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>
> ------------------------------------------------------------------------
> *From:* Mark J. Markus
> *To:*
cdcbaa@yahoogroups.com
> *Sent:* Thu, March 4, 2010 11:35:04 PM
> *Subject:* [cdcbaa] Dueling Spouses and CCP 703
>
> This is kinda complicated, so if one of the more experienced in our
> group wants to contact me off list, that would be great.
>
> Relevant facts: H&W separated about a year ago. (I represent H) Among
> the community property (C/P) assets are multiple real estate holdings
> and some free and clear vehicles. H has or controls nearly all of
> these assets. Due to conflicts of interest, H&W have separate
> bankruptcy counsel. W filed Chapter 7 first. W used the 703
> exemptions, without consent of H. My understanding is that pursuant
> to CCP 703.140(a)(2) one spouse cannot claim the 703 exemptions
> without consent of the other. W used the majority of the wildcard
> exemption on H's vehicle. H would have preferred it be used to
> protect marginal equity in one of the rental properties.
>
> H will be filing his Ch. 7 case soon, but several questions have
> arisen in light of the above as to what assets H can now protect, and
> how to go about doing it.
>
> My understanding is that all the C/P is now in W's estate and whatever
> exemptions she chooses will govern and H presently has no control over
> that.
>
> Here are my questions:
>
> 1. If H does nothing with respect to W's pending case, and just let's
> W's Trustee do whatever he/she is going to do with the C/P assets, can
> H protect any of his separate property assets (such as income earned
> post-separation) by using the 703 exemptions himself? Or are those
> gone now?
>
> 2. What can H do with regard to reallocating the exemptions chosen by
> W in her case? (assume for the sake of argument that W and her
> counsel refuse to voluntarily stipulate to any amendments). Could we
> file an objection to exemptions? And, if so, what would the benefit
> be? If unable to agree on the 703s, then doesn't that force each of
> the debtors to use the 704 series, eliminating all wildcard
> benefits? Substantive consolidation is another possibility, but I
> see problems with that as well, because the spouses still have to
> determine how to allocate the exemptions or else, if I'm reading this
> correctly, CCP 703.100(c) allows the Judge to do it.
>
> 3. Can one spouse use the 703 series and the other the 704 if the
> latter is used only for the separate property assets of the other spouse?
>
> Thanks for any input/guidance anyone can give. This case is starting
> to give me a headache.
>
> ************ ********* ****
> Mark J. Markus
> Law Office of Mark J. Markus
> 11684 Ventura Blvd. PMB #403
> Studio City, CA 91604-2652
> (818)509-1173 (818)509-1460 (fax)
> web:
http://www.bklaw. com/
> This Firm is a Qualified Federal Debt Relief Agency (see what this means athttp://bklaw. com/bankruptcy- blog/2008/ 09/debt-relief- agencies- definition/)
> ____________ _________ _________ _________ _________
> NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written 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 in this communication.
>
> On 3/4/2010 6:04 PM, Amy Clark wrote:
>> Some judges require a legal separation -- Victoria Kaufman.
>>
>> Welcome to my hell. (JK...kind of...) I only have 2 cases left and
>> one poor guy is going through this "variations on separation" theme
>> and the wife is sharing NONE of her assets but I guess if they get
>> divorced she will have to so it is a big mess!
>>
>> -- Amy Clark Kleinpeter
>>
>> 1489 E. Colorado Blvd. #207
>> Pasadena, CA 91106
>> (626) 507-8090
>>
>> "Bankruptcy, Michael, is nature's do-over. It's a fresh start, a
>> clean slate."
>>
>> "Like the witness protection program!"
>>
>> "Exactly."
>>
>>
>> 2010/3/3 Mark J. Markus
>>
>> No, that much I do know. I'm not sure what a legal separation
>> accomplished that the stated intent of the two parties doesn't.
>>
>> ************ ********* ****
>> Mark J. Markus
>> Law Office of Mark J. Markus
>> 11684 Ventura Blvd. PMB #403
>> Studio City, CA 91604-2652
>> (818)509-1173 (818)509-1460 (fax)
>> web:
http://www.bklaw. com/
>> This Firm is a Qualified Federal Debt Relief Agency (see what this means athttp://bklaw. com/bankruptcy- blog/2008/ 09/debt-relief- agencies- definition/ )
>> ____________ _________ _________ _________ _________
>> NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
>> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written 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 in this communication.
>>
>>
>> On 3/3/2010 12:09 PM, Hale Andrew Antico wrote:
>>> ps: Mark - I'm no Family Law expert, but wouldnl't a legal
>>> separation be necessary to establish that debts are now separate
>>> property? Assuming that's true, since that's not present here,
>>> I'd guess that moving away and back together didn't re-transmute
>>> anything.. it's all debt of the community. [update without
>>> edit: went back and researched it -- Family Code 771 says it's
>>> "parting of ways with no present intent to resume marriage..."
>>> _Marriage of Hardin_ 38 CA4th 448 (1995). At least one case
>>> says not "separated" under Sec. 771(a) where one moves out and
>>> conduct doesn't seem to match. _Marriage of von der Nuell_, 23
>>> CA4th 730 (1994).
>>> As an aside, according to _Marriage of Norviel_, 102 CA4th 1152,
>>> 1162 (2002), physical separation is an indispensible threshold,
>>> but as David says, separate dwellings are not essential
>>> (_Norviel_ at 1163-64). I gather you'll be arguing the facts
>>> according to factors and standards set forth in _Norviel_ and
>>> those that follow it.
>>> Hale
>>>
>>> ------------------------------------------------------------------------
>>> *From:* Hale Andrew Antico [mailto:bk.lawyer@ gmail.com
>>> ]
>>> *Sent:* Wednesday, March 03, 2010 11:51 AM
>>> *To:* 'cdcbaa@yahoogroups. com '
>>> *Subject:* RE: [cdcbaa] Family law-related question
>>>
>>> Won't the OUST be concerned about this, since two
>>> "single-household" separated spouses living together would
>>> each qualify for Chapter 7 at $45k/yr salary where together
>>> at $90k/yr for 2-person household they wouldn't? If I was
>>> OUST, I'd ask for evidence, and living together, with all
>>> utility bills going to the same address, etc, short of gov't
>>> inspection seeking a "War of the Roses" or Brady Bunch line
>>> drawn down the middle of the house, I'm not sure how debtors
>>> would prove that they live together but are somehow separated.
>>> Hale
>>>
>>> ------------------------------------------------------------------------
>>> *From:* cdcbaa@yahoogroups. com
>>> [mailto:cdcbaa@
>>> yahoogroups. com ] *On
>>> Behalf Of *David A. Tilem
>>> *Sent:* Wednesday, March 03, 2010 10:51 AM
>>> *To:* cdcbaa@yahoogroups. com
>>>
>>> *Subject:* RE: [cdcbaa] Family law-related question
>>>
>>> No. Spouses can be "separated" and still living under
>>> the same roof.
>>> *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.
>>> Business bankruptcy specialist cert. by Amer. Bd. of
>>> Certification
>>> -----Original Message-----
>>> *From:* cdcbaa@yahoogroups. com
>>> [mailto:cdcbaa@
>>> yahoogroups. com ] *On
>>> Behalf Of *Mark J. Markus
>>> *Sent:* Wednesday, March 03, 2010 9:58 AM
>>> *To:* cdcbaa@yahoogroups. com
>>>
>>> *Subject:* [cdcbaa] Family law-related question
>>>
>>> If spouses who were separated (living apart) for over a
>>> year, intending
>>> to divorce, move back in together for financial reasons,
>>> are they then
>>> considered still "separated"? Are debts incurred by one
>>> spouse while
>>> living apart still community debts? (in other words,
>>> does moving back in
>>> with each other re-transmute the community)?
>>>
>>> ************ ********* ****
>>> Mark J. Markus
>>> Law Office of Mark J. Markus
>>> 11684 Ventura Blvd. PMB #403
>>> Studio City, CA 91604-2652
>>> (818)509-1173 (818)509-1460 (fax)
>>> web:
http://www.bklaw. com/
>>> This Firm is a Qualified Federal Debt Relief Agency (see
>>> what this means at
http://bklaw. com/bankruptcy-
>>> blog/2008/ 09/debt-relief- agencies- definition/
>>> )
>>> ____________ _________ _________ _________ _________
>>> NOTICE: This Electronic Message contains information
>>> from the law office of Mark J. Markus that may be
>>> privileged. The information is intended for the use of
>>> the addressee only. If you are not the addressee, note
>>> that any disclosure, copy, distribution or use of the
>>> contents of this message is prohibited.
>>> IRS CIRCULAR 230 NOTICE: To ensure compliance with
>>> requirements imposed by the IRS, we inform you that any
>>> U.S. tax advice contained in this communication (or in
>>> any attachment) is not intended or written 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 in this communication.
>>>
>>
>
>
>
>
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