Debtor receiving exempt amount of liquidated real

Post Reply
Yahoo Bot
Posts: 22904
Joined: Sun Oct 18, 2020 11:38 pm


So it seems pretty clear to me that pursuant to CCP 704.960, if the debtors
record a declaration of homestead and then sell their property voluntarily
pre-petition, they can safely exempt $75,000 as long as their bankruptcy
case is filed within 6 months after the proceeds are received from sale.
Correct?
***********************************************
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)
e-mail: bklawr@bklaw.com
web: http://www.bklaw.com/
************************************************
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 (818)
509-1173 or e-mail us at bklawr@bklaw.com and destroy the
original message and all copies.
To:
Sent: Tuesday, January 25, 2005 2:34 PM
Subject: Re: [cdcbaa] Debtor receiving exempt amount of liquidated real
property
>
> More recent cite holding Golden still good law, but
> limiting it to sales without a reinvestment
> postpetition.
>
> Here is another more recent cite:
>
> In re Kim
> 257 B.R. 680
> 9th Cir Bap 2000
>
> Other authority cited by Trustee is not persuasive. He
> cites England v. Golden (In re Golden), 789 F.2d 698
> (9th Cir.1986), for the proposition that a court may
> look at the post-petition conduct of a debtor. As
> noted in In re Combs, 166 B.R. 417
> (Bankr.N.D.Cal.1994), Golden is based on a peculiar
> temporal exemption statute and its holding is thus
> limited to its facts. The California exemption law at
> issue in Golden specifically provided that proceeds of
> the sale of a homestead are exempt only if reinvested
> within six months of a sale. Golden, 789 F.2d at
> 699-700. The Golden court applied the California
> exemption law as written: to obtain the exemption, the
> debtors had to take certain action, which they failed
> to do. The exemption law itself contained a "sunset
> provision" requiring the court to look to facts
> occurring after the petition date to determine whether
> the exemption was available. Section 704.115 contains
> no such "sunset provision," and the holding of Golden
> is thus inapplicable. See Combs, 166 B.R. at 419-20.
>
>
> sometimes it just pays to be old, cause I read those
> cases in the 80's ;-)
>
> dennis
>
>
>
> __________________________________
> Do you Yahoo!?
> All your favorites on one personal page - Try My Yahoo!
> http://my.yahoo.com
>
>
>
>
> Yahoo! Groups Links
>
>
>
>
>
>
>
>

The post was migrated from Yahoo.
Top
Yahoo Bot
Posts: 22904
Joined: Sun Oct 18, 2020 11:38 pm


Thanks! That's the case I was looking for.
To:
Sent: Tuesday, January 25, 2005 2:21 PM
Subject: Re: [cdcbaa] Debtor receiving exempt amount of liquidated real
property
>
>
> --- "Mark J. Markus" wrote:
>
>> Mark:
> I recalled a case where a trustee made the demand for
> the proceeds once the six months expired. I thought
> it was a case where the bankruptcy was filed within
> the six months and the trustee waited for the
> expiration of the six months. The six month rule is
> in two places. In 704.720 (forced sales), and 704.960
> (voluntary sale of homestead, WITH A DECLARED
> HOMESTEAD).
>
> a quick westlaw search shows this recent Ryan decision
> allowing the 704.720 exemption when property was sold
> prepetition in a divorce.
> "V. CONCLUSION
> The language, legislative history and cases
> interpreting 703.140(a) support that in bankruptcy,
> the homestead exemption is not limited to when a
> debtor's residence is sold to enforce a money
> judgment. However, when a sale of real property occurs
> prior to the bankruptcy petition, 703.140 does not
> apply and a debtor must satisfy the standard homestead
> exemption requirements. For the automatic homestead
> exemption, this includes the requirement that the sale
> be conducted pursuant to a money judgment. Here, the
> sale of the Property was ordered to satisfy a judgment
> for the payment of money to reimburse Guy in
> connection with a marriage dissolution. Therefore, the
> sale was a forced sale, and Debtor's claimed automatic
> homestead exemption in the proceeds on the sale of the
> Property, which occurred within six months of the
> filing of the petition, was proper.
> This opinion shall constitute my findings of fact and
> conclusions of law.
> Bkrtcy.C.D.Cal.,2003.
> In re Cumberbatch
> 302 B.R. 675"
>
>
> OK, I found it:
>
> C.A.9 (Cal.),1986.
> In re Golden
> 789 F.2d 698, Bankr. L. Rep. P 71,125
>
> debtor sold in may, filed in June, lost exemption
> postpetition and trustee got a $25,000 judgment
> against debtor spending the homestead after the bk.
>
> "Golden sold his residence in early May, 1983 and
> filed his Chapter 7 petition in the bankruptcy court
> on June 30, 1983, less than two months later. At the
> time of the filing, he had approximately $25,000
> remaining as unspent proceeds of the sale.
> Pursuant to 11 U.S.C. 522(b)(2), the debtor may
> claim exemptions for property exempt under either
> state or federal law. Golden claimed a $25,000
> exemption under the California homestead provisions
> then codified at Cal.Civ.Code 1265. [FN1] That
> section provided:
>
>
> FN1. Cal.Civ.Code 1265 was repealed, effective July
> 1, 1983, after the filing of the bankruptcy. A similar
> exemption is now found at Cal.Civ.Proc.Code
> 704.960(a) (Supp.1986). "
>
> "Finally, Golden argues that even if the proceeds are
> no longer exempt, he has spent some of the $25,000,
> and that the trustee is entitled only to judgment for
> the amount remaining in his possession. The award of a
> judgment in the amount claimed exempt at filing,
> however, furthers the purpose of the California
> exemption to preserve the proceeds of the sale for
> reinvestment in another home, and to prevent
> expenditures for nonexempt purposes. The court did not
> err in entering judgment in the amount of proceeds in
> the debtor's possession at the time of the filing for
> bankruptcy.
> Affirmed."
>
> 9th Circuit Case, probably binding here.
>
> dennis
>
>
>
> __________________________________
> Do you Yahoo!?
> The all-new My Yahoo! - Get yours free!
> http://my.yahoo.com
>
>
>
>
>
>
> Yahoo! Groups Links
>
>
>
>
>
>
>
>

The post was migrated from Yahoo.
Top
Yahoo Bot
Posts: 22904
Joined: Sun Oct 18, 2020 11:38 pm


Record homestead ASAP
>omestead exemption to the debtors upon sale of the property? I assume it
>gets put somewhere in the Motion to Sell that is filed with the court, right?
>
>***********************************************
>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)
>e-mail: bklawr@bklaw.com
>web: http://www.bklaw.com/
>************************************************
>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 (818)
>509-1173 or e-mail us at bklawr@bklaw.com and
>destroy the
>original message and all copies.
>
>
>
>
>----------
>Yahoo! Groups Links
> * To visit your group on the web, go to:
> *
> http://groups.yahoo.com/group/cdcbaa/
> *
> * To unsubscribe from this group, send an email to:
> *
> cdcbaa-unsubscribe@yahoogroups.com
>
> *
> * Your use of Yahoo! Groups is subject to the
> Yahoo! Terms of Service.
Record homestead ASAP
omestead exemption to the debtors upon sale of the property? I
assume it gets put somewhere in the Motion to Sell that is filed with the
court, right?

***********************************************
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)
e-mail: bklawr@bklaw.com
web: http://www.bklaw.com/
************************************************
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
(818)
509-1173 or e-mail us at
bklawr@bklaw.com and destroy the
original message and all copies.


Yahoo! Groups Links
To visit your group on the web, go to:
http://groups.yahoo.com/group/cdcbaa/

To unsubscribe from this group, send an email to:
cdcbaa-unsubscribe@yahoogroups.com

Your use of Yahoo! Groups is subject to the
Yahoo! Terms of Service.

The post was migrated from Yahoo.
Top
Post Reply

Return to “Yahoo Old Posts”