Central District Consumer Bankruptcy Attorney's Association

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/
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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
>
>
>
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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
>
>
>
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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
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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/
************************************************
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