BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                        SB 308|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
          |327-4478                          |                              |
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                                   THIRD READING 


          Bill No:  SB 308
          Author:   Wieckowski (D)
          Amended:  5/5/15  
          Vote:     21  

           SENATE JUDICIARY COMMITTEE:  5-1, 4/28/15
           AYES:  Jackson, Hertzberg, Leno, Monning, Wieckowski
           NOES:  Anderson
           NO VOTE RECORDED:  Moorlach

          SENATE APPROPRIATIONS COMMITTEE:  Senate Rule 28.8

           SUBJECT:   Debtor exemptions


          SOURCE:    Author


          DIGEST:   This bill increases the amounts of all of the specific  
          asset exemptions available to bankruptcy debtors (the "703  
          exemptions") and increases certain amounts and expands the list  
          of exempt specified property regarding monetary judgments (the  
          "704 exemptions").  This bill also removes the six-month  
          homestead reinvestment requirements and deletes the three-tiered  
          homestead exemption and, instead, provides for a single  
          homestead exemption of up to $300,000.

          ANALYSIS:   


          Existing law:

            1)  Prohibits, in the absence of default, a motor vehicle  








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              seller or holder of a contract from accelerating the  
              maturity of any part or all of the amount due under the  
              contract or repossess the motor vehicle.


            2)  Allows, after default by a motor vehicle buyer, the seller  
              or holder to repossess or voluntarily accept surrender of  
              the motor vehicle and any person liable on the contract has  
              a right to reinstate the contract or the seller or holder  
              cannot accelerate the maturity of any part or all of the  
              contract prior to the expiration of the right to reinstate,  
              except under specified conditions.


            3)  Does not apply those protections for loans made pursuant  
              to the California Finance Lenders Law.


            4)  Provides that, except as otherwise provided by law, all  
              property of the judgment debtor is subject to enforcement of  
              a money judgment.


            5)  Provides that in a case under Title 11 of the United  
              States Code (relating to bankruptcy), all of the exemptions,  
              other than Code of Civil Procedure Section 703.140(b)  
              exemptions, are applicable regardless of whether there is a  
              money judgment against the debtor or whether a money  
              judgment is being enforced by execution sale or any other  
              procedure.  The Section 703.140(b) exemptions may be elected  
              in lieu of all other available exemptions, as specified.


            6)  Provides for 11 categories of exemptions (the 703  
              exemptions), modeled after federal law, which the bankruptcy  
              debtor may elect to use in lieu of the 704 exemptions.   
              Those exemptions include: 

                   the debtor's aggregate interest, not to exceed $24,060  
                in value, in real property or personal property that the  
                debtor or a dependent of the debtor uses as a residence,  
                in a cooperative that owns property that the debtor or a  
                dependent of the debtor uses as a residence, or in a  
                burial plot for the debtor or a dependent of the debtor;







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                   the debtor's interest, not to exceed $4,800 in value,  
                in one motor vehicle;

                   the debtor's interest, not to exceed $600 in value in  
                any particular item, in household furnishings, household  
                goods, wearing apparel, appliances, books, animals, crops,  
                or musical instruments, that are held primarily for the  
                personal, family, or household use of the debtor or a  
                dependent of the debtor;

                   the debtor's aggregate interest, not to exceed $1,425  
                in value, in jewelry held primarily for the personal,  
                family, or household use of the debtor or a dependent of  
                the debtor;

                   the debtor's aggregate interest, not to exceed $1,280,  
                as specified, in any property;

                   the debtor's aggregate interest, not to exceed $7,175  
                in value, in any implements, professional books, or tools  
                of the trade of the debtor or the trade of a dependent of  
                the debtor; 

                   the debtor's aggregate interest not to exceed $12,860  
                in value, in any accrued dividend or interest under, or  
                loan value of, any unmatured life insurance contract owned  
                by the debtor under which the insured is the debtor or an  
                individual of whom the debtor is a dependent;

                   the debtor's right to receive payment under a stock  
                bonus, pension, profit-sharing, annuity, or similar plan  
                or contract on account of illness, disability, death, age,  
                or length of service, to the extent reasonably necessary  
                for the support of the debtor and any dependent of the  
                debtor, unless the plan or contract was established by or  
                under the auspices of an insider that employed the debtor  
                at the time the debtor's rights under the plan or contract  
                arose, the payment is on account of age or length of  
                service, and the plan or contract does not otherwise  
                qualify, as specified, under the Internal Revenue Code;  
                and

                   the debtor's rights to receive, or property that is  







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                traceable to, a payment, not to exceed $24,060, on account  
                of personal bodily injury of the debtor, or an individual  
                of whom the debtor is a dependent.



            1)  Requires, if a bankruptcy petition is filed individually  
              and not jointly, for a husband or a wife, the husband and  
              wife to waive the right to claim 704 exemptions in order to  
              elect to instead utilize the applicable 703 exemptions.


            2)  Requires the Judicial Council to adjust the 703 exemptions  
              at every three-year interval ending on April 1 thereafter,  
              as specified, based on the change in the annual California  
              Consumer Price Index for All Urban Consumers, as specified.


            3)  Requires, under the California Constitution, the  
              Legislature to protect, by law, a certain portion of the  
              homestead and other property, from forced sale.


            4)  Specifies 21 different types of property and the  
              conditions under an amount of which a debtor may claim an  
              exemption from enforcement of a money judgment.  Those  
              exemptions (the 704 exemptions) include motor vehicles, up  
              to $2,300, vacation credits, and self-employed retirement  
              plans and individual retirement annuities, as specified.


            5)  Contains both an automatic and a declared homestead  
              exemption that serve to protect a portion of equity in a  
              debtor's home from creditors. Existing law states that the  
              automatic homestead exemption applies to the principal  
              dwelling in which the judgment debtor, or spouse,  
              continuously resided from the date of attachment of the  
              judgment creditor's lien until a court determination that  
              the dwelling is a homestead.  A declared homestead exemption  
              applies, as specified, to a dwelling specified in a recorded  
              homestead declaration.


            6)  Sets the three-tiered amount of the homestead exemption as  







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              follows:

                   $75,000, unless the judgment debtor or spouse of the  
                judgment debtor who resides in the homestead is a person  
                described below;

                   $100,000 if the judgment debtor or spouse of the  
                judgment debtor who resides in the homestead at the time  
                of sale is a member of the family unit, and there is at  
                least one member of the family unit who owns no interest  
                in the homestead or whose only interest in the homestead  
                is a community property interest with the judgment debtor;  
                or

                   $175,000 if the judgment debtor or spouse of the  
                judgment debtor who resides in the homestead at the time  
                of sale is either: (a) a person 65 years of age or older;  
                (b) a person physically or mentally disabled and as a  
                result of that disability is unable to engage in  
                substantial gainful employment, as specified; or (c) a  
                person 55 years of age or older with a limited gross  
                annual income.

            1)  Provides that if a declared homestead is voluntarily sold,  
              the proceeds of the sale are exempt in the declared  
              homestead exemptions for a period of six months after the  
              date of sale.  Existing law provides that if the proceeds of  
              a declared homestead are invested in a new dwelling within  
              six months after the date of the voluntary sale or within  
              six months after proceeds of an execution sale or of  
              insurance or other indemnification for damage or destruction  
              are received, the new dwelling may be selected as a declared  
              homestead by recording a homestead declaration within the  
              applicable six month period.  In that case, existing law  
              provides that the homestead has the same effect as if it had  
              been recorded at the time the prior homestead declaration  
              was recorded.


            2)  Requires, on April 1, 2007, and at each three-year  
              interval thereafter, the 704 exemptions for motor vehicles  
              and homesteads to be adjusted in accordance with the change  
              in the annual California Consumer Price Index for All Urban  
              Consumers.  Existing law requires the Judicial Council, on  







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              April 1, 2013, and at each three-year interval thereafter,  
              to submit to the Legislature the amount by which the dollar  
              amounts of the above homestead exemptions may be increased  
              based on the change in the annual California Consumer Price  
              Index for All Urban Consumers.  Those increases shall not  
              take effect unless they are approved by the Legislature. 


          This bill:

          1)Provides that neither the act of filing a bankruptcy petition  
            by the buyer or other individual liable on the contract nor  
            the status of either of those persons as a debtor in  
            bankruptcy constitutes a default in the performance of any of  
            the buyer's obligations under the contract, and neither may be  
            used as a basis for accelerating the maturity of any part or  
            all of the amount due under the contract or for repossessing  
            the motor vehicle.


          2)Provides that a waiver of 704 exemptions is not required from  
            a debtor who is separated from his or her spouse as of the  
            date the bankruptcy petition is commenced in order for the  
            debtor to elect to utilize the applicable 703 exemptions.


          3)Increases the dollar amounts of the following 703 exemptions:

                 the exemption for the debtor's aggregate interest in  
               real or personal property, not to exceed $25,575 (an  
               increase from $24,060);

                 the exemption for the debtor's interest in a motor  
               vehicle or vehicles, not to exceed $6,000 (an increase from  
               $4,800 for a single vehicle);

                 the exemption for the debtor's interest in any  
               particular item, in household furnishings, household goods,  
               wearing apparel, appliances, books, animals, crops, or  
               musical instruments, not to exceed $650 (an increase from  
               $600);

                 the exemption for the debtor's aggregate interest in  
               jewelry, not to exceed $1,525 (an increase from $1,425);







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                 the exemption for the debtor's aggregate interest in any  
               property, not to exceed $1,350 (an increase from $1,280);

                 the exemption for the debtor's aggregate interest in  
               implements, professional books, or tools of the trade of  
               the debtor or the trade of a dependent of the debtor, not  
               to exceed $7,625 (an increase from $7,175);

                 the exemption for the debtor's aggregate interest in any  
               unmatured life insurance contract, up to $13,675 in value  
               (increased from $12,860); and

                 the exemption for the debtor's receipt of payment on  
               account of personal bodily injury, not to exceed $25,575  
               (an increase from $24,060).

          1)Revises the exemption for stock bonus, pension,  
            profit-sharing, annuity, or similar plan or contract on  
            account of illness, disability, death, age, or length of  
            service, if the plan or contract does not otherwise qualify  
            under the Internal Revenue Code, on a basis other than a  
            technical defect alone.


          2)Adds the following additional exemptions for the following:  
            (a) vacation credits or accrued, or unused, vacation pay, sick  
            leave, or family leave; (b) a cause of action arising out of  
            or regarding the violation of any law relating to the debtor's  
            employment; and (c) an award of damages from or a settlement  
            arising out of or regarding the violation of any law relating  
            to the debtor's employment, to the extent necessary for the  
            support of the debtor and the spouse and dependents of the  
            debtor.


          3)Increases the dollar amount of the exemption for the debtor's  
            motor vehicles up to $6,000 (an increase from $2,300) and:

                 adds an exemption for the debtor's aggregate interest in  
               cash or deposit accounts, accounts receivable, and  
               inventory of a business, not to exceed $5,000;

                 adds exemptions for alimony, support, and separate  







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               maintenance, to the extent reasonably necessary for the  
               support of the debtor and any dependent of the debtor;

                 expands the exemption for the debtor's vacation credits  
               to also include accrued, or unused, vacation pay, sick  
               leave, or family leave;

                 expands the exemption for the debtor's self-employed  
               retirement plans and individual retirement annuities or  
               accounts provided for in the Internal Revenue Code for  
               accounts that do not qualify on the basis of a technical  
               defect alone; and

                 adds exemptions for a cause of action arising out of or  
               regarding the violation of any law relating to the judgment  
               debtor's employment and an award of damages from or a  
               settlement arising out of or regarding the violation of any  
               law relating to the judgment debtor's employment, to the  
               extent necessary for the support of the judgment debtor and  
               the spouse and dependents of the judgment debtor.

          1)Deletes the homestead exemption providing that proceeds are  
            exempt for a period of six months after the time the proceeds  
            are actually received by the judgment debtor, except that, if  
            a homestead exemption is applied to other property of the  
            judgment debtor or the judgment debtor's spouse during that  
            period, the proceeds thereafter are not exempt.


          2)Repeals the three tiers of the homestead exemption to instead  
            provide a homestead exemption up to $300,000.


          3)Removes the restriction that proceeds of the sale of a  
            declared homestead are exempt only for a period of six months  
            after the sale and remove the six-month limitations on  
            claiming an exemption for the voluntary sale of a declared  
            homestead.


          Comments


          In a bankruptcy action, exemptions generally allow a person to  







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          protect certain types of assets during the bankruptcy process.   
          If an asset is exempt, the asset can generally not be taken to  
          pay creditors' claims.  These property exemptions are designed  
          to ensure that a debtor maintains the ability to support himself  
          or herself, as well as dependent family members, after the entry  
          of judgment, and also to facilitate the debtor's financial  
          recovery.  

          Under the federal Bankruptcy Code, states may either adopt the  
          federal exemptions listed in the Bankruptcy Code or opt out of  
          those exemptions and create different judgment exemptions.  (See  
          11 U.S.C. Sec. 522(b)(1).)  California has not authorized the  
          use of the exemptions in the federal Bankruptcy Code, so  
          California residents filing for bankruptcy are limited to the  
          exemptions allowable to California residents under nonbankruptcy  
          law.  (See Code Civ. Proc. Sec. 703.130.)

          Individuals filing bankruptcy in California can choose between  
          two different sets of exemptions:  the 703 exemptions or the 704  
          exemptions.  The "703 exemptions," located in Code of Civil  
          Procedure Section 703.140(b), consist of 11 categories that are  
          modeled after federal bankruptcy law.  In comparison, the "704  
          exemptions," contained in Code of Civil Procedure Sections  
          704.010 through 704.210, provide 21 different types of  
          exemptions that protect a wider range of property.  The  
          homestead exemption, which generally seeks to protect the  
          residence of a debtor from forced sale to satisfy debts, is also  
          significantly greater, providing a base exemption of $75,000,  
          $100,000 for married individuals, and $175,000 for seniors and  
          disabled individuals, as specified.  Notably, the 703 exemptions  
          are specific exemptions that a bankruptcy debtor may elect in  
          lieu of all other exemptions while the 704 exemptions are  
          available to all debtors in California seeking to exempt  
          specified property from enforcement of a money judgment.

          This bill increases the 703 and 704 exemption amounts in  
          accordance with cost of living increases and revises the 704  
          homestead exemption to remove the three-tiered provisions, and,  
          instead, provides for one homestead exemption up to $300,000.   
          This bill also provides debtor protection from motor vehicle  
          repossession or loan maturity acceleration.

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No







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          SUPPORT:   (Verified5/18/15)


          National Association of Consumer Bankruptcy Attorneys
          One individual


          OPPOSITION:   (Verified5/18/15)


          California Association of Collectors, Inc.
          California Bankers Association
          DBA International
          One individual

          ARGUMENTS IN SUPPORT:      The author writes: "Many sections  
          [of] California's bankruptcy provisions have been untouched  
          since their enactment.  SB 308 makes updates to both the 703  
          exemptions and 704 exemptions in light of changing case law and  
          also makes changes so that the 703 exemptions more closely  
          mirror existing protections under the 704 exemptions. SB 308  
          increases exemption amounts for many areas under both the 703  
          and 704 exemptions.  The bill ensures that a bankruptcy filing  
          alone does not trigger a default in an auto loan.  The bill also  
          collapses the three homestead exemption categories and provides  
          for one homestead [exemption] that applies to all debtors,  
          regardless of family situation, age[,] or other characteristics.  
           SB 308 increases the homestead exemption to $[3]00,000."




          The National Association of Consumer Bankruptcy Attorneys  
          (NACBA), in support, argue that this bill will allow small  
          business owners to retain a modest amount of assets, which are  
          essential to resume business operations, and is particularly  
          important given the fact that many underemployed workers attempt  
          to start home-based business in order to put food on the family  
          table.  One individual argues that the cost of living increases  
          in this bill are appropriate because the current exemptions are  
          too low.  Further, that individual contends that because  
          California is a car society, having the ability to exempt your  







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          car is a necessity.  NACBA also argues that the "current  
          exemption of $2,900 is wholly inadequate today to protect a  
          modest vehicle in good working condition."


          ARGUMENTS IN OPPOSITION:     Opponents of this bill argue that  
          "[t]he purpose of the homestead exemption is for homeowners to  
          protect some equity in their homes, both before and after  
          bankruptcy, so they can use those funds to purchase another  
          home.  The purpose of this statute is not to allow wealthy  
          individuals to use their homestead exemption as a loophole to  
          shield money. . . .  Although wealthy individuals may not need  
          their homestead exemption funds for another home, they would be  
          able to pocket those funds to avoid paying their debts."   
          Opponents also argue that this bill "shields investments in  
          vehicles, vacation credits and accrued or unused vacation pay.   
          Considering the amount of vacation pay professionals or highly  
          paid individuals may receive, this amount of pay may be  
          significantly large.  This is another loophole that wealthy and  
          highly compensated people can shield from collection."


          Prepared by:Tara Welch / JUD. / (916) 651-4113
          5/18/15 16:24:15


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