[CLBS] Which exemptions to use when H was in different state than W in last 3 years prior to marriage and moving to Idaho

Thu Apr 26 11:10:47 MDT 2018

Thanks, everyone. I will review the case law. I would prefer to use the CA exemptions which would be W's, but H is being garnished. Federal may work.

They live in an RV on blocks. Homestead or car exemption? These guys are like a bar exam question LOL. If I could just use CA exemptions for both, we'd be good. 

Best regards,
HOLLY ROARK
Attorney at Law 
Certified Bankruptcy Specialist -
By the State Bar of California Board of Legal Specialization

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-----Original Message-----
From: CLBS <clbs-bounces at admws.idaho.gov> On Behalf Of Paul Ross
Sent: Thursday, April 26, 2018 10:44 AM
To: Robert Maynes <MaynesLaw at hotmail.com>
Cc: clbs at admws.idaho.gov
Subject: Re: [CLBS] Which exemptions to use when H was in different state than W in last 3 years prior to marriage and moving to Idaho

Not sure if there is case law in 9th Circuit or Idaho, but check Seung v.
Silverman 288 BR 174 and In re Connor 419 BR 304.

According to the bankruptcy bible, "The choice between state and federal exemptions is normally made by designation in Schedule C, the schedule of exemptions that is filed with the debtor's other bankruptcy schedules.  The designation is sufficient if one set of statutory references is used rather than the other.  Under the rules, that schedule can later be amended, including presumably to change from federal to state exemptions or vice versa.  In a joint filing of a husband and wife, both spouses must choose the same exemption scheme.  If the spouses cannot agree upon which exemptions to choose, they are deemed to have chosen the federal exemptions.  They also, however, have the option of filing two separate petitions, with each spouse electing the exemptions of their choice.  Even when a state has opted out of the federal exemptions, it may be possible to assert the state exemptions separately for each debtor, as section 522(m) of the Code provides that each debtor's exemptions must be treated separately."

Be aware of Rule 1015(b).

For the state exemptions separate sentence, a number of footnotes are present.  In re Bartlett, 24 BR 605 is the case from 9th Circuit BAP.
Looking through the long list, beware of In re Granger 754 F.2d 1490 (9th Cir.).

Good luck!  Let us know how it goes.

Paul

On Thu, Apr 26, 2018 at 9:07 AM, Robert Maynes <MaynesLaw at hotmail.com>
wrote:

> You might want to consider which case you file first under Randy’s 
> scenario of separate filings.
>
> > On Apr 26, 2018, at 8:53 AM, Randal French <rfrench at rfrenchlaw.net>
> wrote:
> >
> > Very interesting.  If you filed a separate bankruptcy for each, then 
> > you
> would apply the exemption law at the jurisdiction which was the 
> residence of each as required by 522(b)(3).  522(b)(1) requires both 
> joint debtors to use the exemptions under 522(b)(2), federal 
> exemptions, or both must use exemptions under 522(b)(3), applicable 
> federal exemptions other than 522(d) and applicable state exemptions.  
> There is nothing that I can think of, without thinking too hard, that 
> requires the use of the same state's exemptions under 522(b)(3), and 
> arguably each party is required to use the exemptions applicable to 
> it, which would appear to be Cal for wife and Minnesota for H.
> >
> > Thanks.
> > Randy French
> >
> > Law Office of Randal J. French, P.C.
> > Attorneys at Law
> > P.O. Box 836
> > Boise, ID 83701
> > (208) 859-6881
> >
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> > -----Original Message-----
> > From: CLBS [mailto:clbs-bounces at admws.idaho.gov] On Behalf Of Holly
> Roark
> > Sent: Wednesday, April 25, 2018 8:31 AM
> > To: clbs at admws.idaho.gov
> > Subject: [CLBS] Which exemptions to use when H was in different 
> > state
> than W in last 3 years prior to marriage and moving to Idaho
> >
> > H was in Minn up until a year ago. W was in CA up until 6 months ago
> when she moved to Idaho to marry H. Which bankruptcy exemptions apply? 
> CA or Minn? Minn allows federal, so that’s a possibility too.
> >
> > Best regards,
> >
> > Holly Roark
> > Attorney at Law
> >
> > Roark Law Offices
> > Phone: (310) 553-2600
> > Fax:  (310) 553-2601
> > Cell phone:  (818) 648-3238
> > E-mail:  holly at roarklawoffices.com
> >
> > *Cycle Sport Lawyer: www.cyclesportlawyer.com
> >
> > *Bankruptcy Specialist, certified by State Bar of California Board 
> > of
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