Exemption Homestead

Exemptions – 2) Homestead

In re Greene, 583 F.3d 614 (9th Cir. 2009)

Debtor who owned vacant land for some 10 years prior to filing bankruptcy but then began

residing in a tent just prior to filing and recorded a declared homestead was not subject to the

$125,000 cap in § 522(p)(1). The statute is addressed to the acquisition of the property within

1215 days of bankruptcy, not the acquisition of the homestead exemption.

In re Cerchione, 414 B.R. 540 (9th Cir. BAP 2009)

Debtors was entitled to a homestead exemption under Idaho law, even though the house

wasn’t completed, had not been occupied, and no homestead declaration was filed. They clearly

intended to occupy the property as of the date of the bankruptcy petition, and did occupy it

thereafter. The $100,000 from the sale of their residence which was paid to purchase the new

residence was also covered by the exemption statute.

In re White, 389 B.R. 693 (9th Cir. BAP 2008)

Arizona’s 18-month temporary homestead for sale proceeds does not permit use of

identifiable proceeds for purposes inconsistent with the statute (here, debtor invested the money in

the stock market rather than a new homestead). Debtor, not trustee, bore risk of loss of such

proceeds, and the trustee could bring a turnover action at the end of the 18-month limit without

objecting to the debtor’s exemption claim.

In re Rabin, 359 B.R. 242 (9th Cir. BAP 2007)

Debtors who were registered domestic partners California law were limited to a single

homestead exemption in residential property in which they each held a one-half interest, when

they each filed a separate chapter 7 petition.

In re Kelley, 300 B.R. 11 (9th Cir. B.A.P. 2003)

Homestead exemption properly denied, where debtor abandoned his otherwise valid

declared homestead by renting out the property and living in rented premises for an extended

period of time.

186

In re Farr, 278 B.R. 171 (9th Cir. B.A.P. 2002)

Under § 522(c), debtor was only entitled to his $100,000 homestead exemption, not to the

entire value of the residence. Lien arising from nondischargeability judgment attached to

nonexempt portion of homestead.

In re Viet Vu, 245 B.R. 644 (9th Cir. B.A.P. 2000)

Bankruptcy debtors not entitled to postpetition appreciation in value of residential property

belonging to estate regardless of whether they had any equity when petition was filed.

In re Arrol, 170 F.3d 934 (9th Cir. 1999)

Debtor who lived in CA then moved back to home in Mich., then properly filed bankruptcy

in CA, could claim $75,000 homestead on Mich. residence.

In re Cataldo, 224 B.R. 426 (9th Cir. B.A.P. 1998)

Under Hawaii law, tenancy by entireties fully exempt. No fraudulent pre-bankruptcy

planning found.

In re Steward, 227 B.R. 895 (9th Cir. B.A.P. 1998)

Bankruptcy court properly determined that state-law homestead exemption applied in

administratively consolidated bankruptcy cases where only one of two spouses chose federal

exemption, i.e. 703.140 (husband) v. 704.730 (wife).

In re Michael, 163 F.3d 526 (9th Cir. 1998)

The court of appeals affirmed a judgment of the B.A.P. The court held that a bankruptcy

debtor may amend the petition’s schedules to add an exemption based on a post-petition

homestead declaration.

Amiri v. Collection Bureau (In re Amiri), 184 B.R. 60 (9th Cir. B.A.P. 1995), contra, In re Wilson,

175 B.R. 735 (N.D. Cal. 1994),

reversed

90 F.3d 347 (9th Cir. 1996)

A judicial lien does not impair a debtor’s automatic homestead exemption for purposes of

bankruptcy code §522(f)(1) (in effect for cases filed prior to 10/22/94) when there is little or no

equity in the property.

In re Alsberg, 68 F.3d 312 (9th Cir. 1995), cert. denied, 517 U.S. 1168 (1996)

Debtor’s right to exemption amount arises when house is sold; the estate retains the interest

in the house until that time.

In re Jones, 180 B.R. 575 (9th Cir. B.A.P. 1995),

reversed

106 F.3d 923 (9th Cir. 1997)

Cal law requires that debtor’s surplus equity in homestead be determined as of date of

filing of bankruptcy petition.

In re Hall, 1 F.3d 853 (9th Cir. 1993),

superseded

,

42 F.3d 1399 (9th Cir. 1994)

Debtor claimed homestead exemption in chapter 11 under federal exemption statute

claiming “all value in their homestead”, (at the time 16,539). Case converted to Chapter 7, debtor

amended exemption to claim under Washington statute. Amount of equity at the time: 95,000.

Held: Chapter 11 claim of exemption took property out of estate – entire 95,00 goes to debtor.

187

In re Hyman, 123 B.R. 342 (9th Cir. B.A.P. 1991), aff’d. 967 F.2d 1316 (9th Cir. 1992)

1.) No presumption as to costs of sale being calculated into amount of equity for trustee

2.) Homestead attaches to equity rather than a physical asset

3.) Postpetition appreciation accrues to estate

Patterson v. Shumate, 504 U.S. 753, 112 S.Ct. 2242 (1992)

Applicable nonbankruptcy law includes ERISA’s nonalienation provisions

In re Reed, 940 F.2d 1317 (9th Cir. 1991)

Homestead attaches to sum of money – is not an interest in the property.

Joint tenancy v. Community property distinguished. Postpetition appreciation accrues to estate.

In re Gitts, 116 B.R. 174 (9th Cir. B.A.P. 1990) aff’d. 927 F.2d 1109 (9th Cir. 1991)

Post-petition filed homestead exemption enforceable against trustee’s objection

In re McFall, 112 B.R. 336 (9th Cir. B.A.P. 1990)

Homestead exemption not apportioned between spouses when one id bankruptcy debtor

In re Cole, 93 B.R. 707 (9th Cir. B.A.P. 1988)

Homestead exemption – sale of house is legitimate Chapter 11 = forced sale