Bankruptcy is for the honest but unfortunate debtor. It is the responsible and legal way to eliminate debt for those struggling. When filing for bankruptcy protection, we do not want the debtor to lose everything as that would impede the debtor’s fresh start. Allowing a bankruptcy trustee or creditor to seize a debtor’s vehicle may cause the debtor to lose a job due to lack of transportation.
Taking a debtor’s earnings or reasonable funds on hand for living expenses could force a debtor to rely on public assistance. Those negative consequences would harm more than the debtor filing the bankruptcy. Therefore, exemption laws are enacted to protect a debtor in bankruptcy. These laws vary drastically from state to state.
In California, we have a complicated exemption scheme. California has two sets of statutes a debtor may use in bankruptcy: the C.C.P. ‘ 704 series and the C.C.P. ‘ 703 series of exemptions. Generally, the 704s are used by homeowners to protect the equity in their home with a homestead exemption.
The 703s are usually used by those who do not own a home or those with very minimal equity to protect in their home. Instead, under 703s, the debtor is afforded a wildcard exemption that may be applied to any asset or claim or used in conjunction with another exemption. There are also some applicable federal exemptions that may be applied, as well.
How can you ensure your assets are protected?
You must meet with an experienced, reputable, and qualified bankruptcy attorney. Your bankruptcy attorney can work with you to maximize your exemptions through a reasonable exemption planning process. This is often also referred to as asset protection.
Exemption planning and asset protection must be reasonable and lawful. If the bankruptcy trustee timely objects to the debtor’s exemptions and prevails, the debtor could lose the asset. So, it is very important for a debtor to claim the proper exemptions. The sooner the debtor knows they will seek bankruptcy protection, the sooner the debtor and their attorney can work on an exemption plan. Exemption planning is extremely important.
To ensure you get the most benefit, you should work with an experienced bankruptcy attorney, preferably an attorney who is a California State Bar Certified Bankruptcy Specialist. A State Bar Specialist has extensive bankruptcy experience, has studied for, taken, and passed a State Bar Certification Specialist exam.
Additionally, you want an attorney who has filed at least 1,000 cases and who is a NACBA member. NACBA is the National Association of Consumer Bankruptcy Attorneys. NACBA is the only organization dedicated to helping consumer debtors and their attorneys.
Author: Jenny L. Doling, Esq., LLM Taxation
CA State Bar Certified Bankruptcy Specialist
Secretary and Board of Director of NACBA
President of the San Diego Bankruptcy Forum
Serving Bankruptcy Clients throughout California and
Tax Clients Nationally