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CALIFORNIA BANKRUPTCY EXEMPTIONS - TWO SETS - ONE YOU MUST ELECT

Reason for Exemption Statutes:

The purpose of the exemption statutes is to "sav[e] debtors and their families from want [i.e. lack of necessities] by reason of misfortune or improvidence." Turner v. Marshack (In re Turner), 186 B.R. 108, 113 (B.A.P. 9th Cir. 1995) (internal quotation and citation omitted).

The underlying purpose of the bankruptcy statute to give debtors a "fresh start." See In re Jastrem, 253 F.3d at 442. 

Two Different Sets of California Exemption Statutes - You must elect  (select, choose) which one to use in bankruptcy.

The California exemption statute allows a debtor in bankruptcy to elect between two sets of exemptions, one is for debtors generally and may also be used for bankruptcy, and the second may only be used by debtors in bankruptcy. Farrar v. McKown (In re McKown), 203 F.3d 1188, 1189 (9th Cir. 2000).  

California Code of Civil Procedure § 703.140: Subdivision (b) of § 703.140, which is modeled on 11 U.S.C. § 522, provides debtors with eleven subsections under which they may claim exemptions.

The regular state exemptions are found under CCP§ 704.010 - 704.210.

Section 703.140 makes clear that debtors are required to elect between subdivision (b) exemptions and the regular exemptions only "[i]n a case under Title 11 of the United States Code." California Code of Civil Procedure § 703.140(a). The phrase "but not both " language precludes (prevents) the concurrent (at the same time) use of both of the exemptions after a debtor files a Chapter 7 petition.

You must choose one exemption set or the other.  You can’t mix and match.

"[T]he nature and extent of a debtor's exemption rights are determined as of the date of the [bankruptcy] petition." Harris v. Herman (In re Herman), 120 B.R. 127, 130 (B.A.P. 9th Cir. 1990).

Note: In the case of In re Talmadge, 822 F.2d 1120 (9th Cir. 1987), the issue was whether married debtors were limited to a single set of exemptions under § 703.140, or whether they were permitted to each claim their own set of exemptions. 832 F.3d at 1123.  The Court held that § 703.110, which stated that two debtor spouses are entitled to only "one exemption limited to the specified maximum dollar amount," effectively modified § 703.140 to limit married debtors to a single set of exemptions. Id. at 1123-25.

California Code of Civil Procedure - Exemptions - Online:

       Article 1.  General Provisions (scroll down to CCP 703.140(b) ...  703.010 - 703.150 
Article 3. Exempt Property ............................................................... 704.010 - 704.210
Article 4. Homestead Exemption .................................................... 704.710 - 704.850
Certain exemption amounts are updated periodically:  Updated Exemption Amounts 



EXEMPTION LAWS CAN BE COMPLEX

Exemption protection can be complex and can be affected by one's marital status, how long one has lived in a particular state, legal interpretation of statutes, case law, the amount and type of assets, and various other factors.  Bankruptcy exemption laws vary from state to state.  

Bankruptcy exemption planning is crucial and can be performed legally with the help of an experienced bankruptcy lawyer.

Therefore, you are encouraged and advised to seek legal advice and representation regarding these issues.

For a free and confidential consultation for southern California residents, contact Christian bankruptcy attorney  Matthew B. Tozer.

Copyright 2012

 Disclaimer

Under the new bankruptcy law, Mr. Tozer is a debt relief agency because he helps people file for bankruptcy relief under the Bankruptcy Code.

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