- Citation:
- no citation as of yet
- Tag(s):
-
- Ruling:
- The BAP ruled that CCP 704.710(c) has been amended in 1983 to remove the work "actually" before "resided" in order to avoid the possible construction that a temporary absence such as hospitalization would defeat a debtor's right to a claim of exemption. Lack of physical occupancy does not preclude a party from establishing actual residence and claiming the homestead exemption if the claimant intends to return. As such, the important factor is the Debtor's intent. The bankruptcy court used the incorrect legal standard when it relief solely on the Debtor's physical occupancy of the property. The burden is with the Debtor to demonstrate such.
- Procedural context:
- On appeal to the BAP from a decision of the bankruptcy court which granted the Trustee's motion objecting to the Debtor's claimed homestead exemption. The BAP reversed the bankruptcy court and remanded for further evidentiary hearing on the Debtor's intent.
- Facts:
- Trustee objected to the Debtor's claim for a homestead exemption pursuant to CCP s. 740.730(a)(3) contending that the Debtor did not reside in the homestead at the time the petition was filed and that his absence due to illness could not be considered temporary for purposes of claiming the exemption under California law. Debtor's health condition improved dramatically and he returned living in the homestead on a full-time basis. His driver's license, voter's registration and mail all reflect the property's address. Likewise, the mortgage and utilities are in the Debtor's name and his personal belongings are located in the property. Agreeing with the trustee, the court denied the claim for exemption finding that the Debtor has not resided on the property for a couple of years and at the time of the petition. The Debtor appealed to the BAP.
- Judge(s):
- Hon. Judges Scott Gan (sitting by designation), Randall Dunn, and Ralph Kirscher
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