BILL ANALYSIS Ó SB 308 Page 1 Date of Hearing: August 26, 2015 ASSEMBLY COMMITTEE ON APPROPRIATIONS Jimmy Gomez, Chair SB 308 (Wieckowski) - As Amended August 17, 2015 ----------------------------------------------------------------- |Policy |Judiciary |Vote:|6 - 3 | |Committee: | | | | | | | | | | | | | | |-------------+-------------------------------+-----+-------------| | | | | | | | | | | | | | | | |-------------+-------------------------------+-----+-------------| | | | | | | | | | | | | | | | ----------------------------------------------------------------- Urgency: No State Mandated Local Program: NoReimbursable: No SUMMARY: This bill increases various existing exemptions, and establishes new exemptions, from creditor claims, for the assets of bankruptcy debtors (Code of Civil Procedure "Section 703 exemptions") and all debtors (Code of Civil Procedure "Section SB 308 Page 2 704 exemptions). Specifically, this bill: 1)Increases the amounts of home equity exempt under Code of Civil Procedure Section 704.730 as follows: a) Increases the base homestead exemption (for a single, non-disabled person under the age of 55) from $75,000 to $100,000. b) Increases the exemption from $100,000 to $150,000 for a married couple who resides in the homestead. c) Increases the exemption from $175,000 to $300,000 for a judgment debtor who is 65 or older, 55 or older with limited income, or who cannot work because of a physical or mental disability. 2)Provides that the existing requirement for a debtor to reinvest proceeds from the sale of a homestead into a new dwelling within six months, or else lose exempt status for those proceeds, does not apply in the event of a bankruptcy filing. 3)Increases the amount of eight specific Section 703 exemptions, mostly by around six percent. 4)Modifies the following Section 704 exemptions: a) Adds an exemption of up to $5,000 in aggregate interest in cash or deposit accounts, accounts receivable, and business inventory for a debtor who is engaged in a business. b) Adds an exemption for alimony, support and separate maintenance, to the extent reasonably necessary for the support of the debtor and any dependent. c) Increases the exemption for equity or sale proceeds from a motor vehicle from $2,300 to $6,000. 5)With respect to both the Section 703 and Section 704 SB 308 Page 3 exemptions: a) Creates a new exemption for the debtor's vacation credits or accrued, or unused, vacation pay, sick leave, or family leave. b) Provides that a cause of action for an employment law violation is exempt without making a claim, and that an award of damages or settlement arising out of an employment law violation is exempt to the extent necessary for the support of the debtor and the debtor's spouse and dependents 6)Provides that a waiver of Section 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 Section 703 exemptions, unless the debtor and spouse share an ownership interest in property eligible for a homestead exemption at the time the bankruptcy petition is filed. FISCAL EFFECT: Any impacts on state and local revenues should be minor. In general, government has a priority claim on debts and such claims are paid prior to monies being set aside for exemptions. While the increase in the homestead exemption provided in this bill may lead to a greater use of this option, the number of annual bankruptcy cases where homestead exemptions are applied is very small, and the number of those cases with exemptions exceeding the homestead limits and also involving government claims is even smaller. For example, in 2013, only 36 bankruptcy cases statewide included a homestead exemption exceeding $50,000 and only 7 of these cases also included government claims, with the majority such government claims being from the federal Internal Revenue Service. COMMENTS: SB 308 Page 4 1)Background. Both the federal Bankruptcy Code and California law provide numerous exemptions that are intended to save bankruptcy debtors and their families from extreme hardship. Under state law, California bankruptcy debtors must choose between two sets of exemption options: one set of state law non-bankruptcy exemptions ("Section 704 exemptions") and a second set modeled after federal bankruptcy exemptions ("Section 703 exemptions"). A comparison between these two sets of exemptions reveals that the Section 704 exemptions are more numerous and better protect debtors who own homes because of the more generous homestead exemption provided by Section 704.730. Section 704 exemptions are not limited to bankruptcy cases, but are generally available to debtors in California who seek to exempt certain property from enforcement of a money judgment. 2)Purpose. According to the author, "The purpose of bankruptcy is to allow a 'fresh start' to honest, hard-working but unfortunate debtors while allowing creditors to be repaid for some of their losses. Despite the stated purpose of a 'fresh start,' current bankruptcy law falls short of effectively leaving a debtor with enough assets to get back on his feet, and successfully move forward again. This is due to the fact that many exemptions in the law have been allowed to languish behind the times. The exemptions do not reflect our economic reality and so debtors continue to struggle post-bankruptcy in spite of their supposed 'fresh start.' SB 308 moves California closer to fully restoring the original purpose of bankruptcy and will allow for the proper "fresh start" that was always intended in the law." The author contends, this bill seeks to modestly increase various debtor exemptions to ensure that typical middle-class families have sufficient assets after bankruptcy to pay routine bills and essentials of life without borrowing themselves back into debt. This bill is supported by the AARP, and National Association of Consumer Bankruptcy Attorneys SB 308 Page 5 (NACBA) and numerous law firms and individuals. 3)Increasing the Homestead Exemption. The purpose of the homestead exemption is to protect the sanctity of the family home against a loss caused by a forced sale by creditors, and to ensure that insolvent debtors and their families are not rendered homeless by the sale of the home they occupy. (Title Trust Deed Service Co. v. Pearson (2005) 132 Cal. App.4th 168.) The exemption amounts were most recently increased by $25,000 by AB 1046 (Anderson)/Chapter 499 of 2009. That legislation also required the Judicial Council to report every three years on the amounts that the homestead exemptions could be increased to adjust for inflation based on changes in the California Consumer Price Index. Any such adjustment is subject to legislative approval, however. According to the author, the homestead exemptions warrant further increases as proposed in SB 308 because the exemption amounts do not yet represent a fair baseline amount that sufficiently protects a debtor's interest in the home, especially given home values in California. (The author cites data from the California Association of Realtors indicating that the median home price in California in 2012 was $317,000.) The author contends that increasing the homestead exemption promotes the correct public policy of encouraging Californians to become homeowners and invest in their homes. 4)Homestead Reinvestment Requirement. A debtor with sufficient equity in the home who claims the homestead exemption is able to keep that dollar amount after the trustee sells the home. However, existing law also requires the debtor to reinvest that money into another property within six months of the date of sale. This is intended to allow the debtor to substitute one home for another, without losing the exemption. According to the author, this rule should be reconsidered, as it fails to take into account that most debtors coming out of a bankruptcy cannot secure financing for another home so quickly, particularly when the six-month period overlaps with the period when the debtor is going through the bankruptcy SB 308 Page 6 process. This bill removes the reinvestment requirement for bankruptcy debtors. According to representatives of NACBA, this change restores what was common practice prior to the 2012 Federal 9th Circuit Court decision (In re Jacobson, 676 F.3d 1193). 5)Exemption of Vacation Credits and Vacation Pay. According to proponents of the bill, vacation time is not time that can be cashed in for most employees, but existing law nevertheless allows a bankruptcy trustee to keep the case open indefinitely and, when the debtor is eligible to take vacation time, then demand that pay received for that time is turned over. The author contends that requiring a debtor to lose their accrued vacation time or vacation credits in order to satisfy a debt is simply unconscionable and bad public policy. 6)Opposition. The California Bankers Association and the California Association of Collectors note that debtors' assets above exemption amounts are used to reimburse a variety of creditors and obligors, which can include tax payments, employee wages, businesses, and child and spousal support payments. They argue that allowing debtors to shield larger amounts of assets, for example with regard to home equity and removing the six-month reinvestment requirement in bankruptcy cases, could allow some debtors to shield hundreds of thousands of dollars in assets from recovery by creditors, and will potentially have the effect of benefitting "a special class of higher income individuals." These opponents make a similar argument with respect to the bill's other provisions. The California Association of County Treasurers and Tax Collectors, noting public agencies' frequent interest as a creditor in bankruptcy proceedings, particularly related to delinquent property tax payments, argues that this expansion of exemptions will diminish counties' ability to recover those taxes, resulting in a revenue loss to education and other local government services. SB 308 Page 7 7)Prior Legislation. AB 1853 (Wieckowski) of 2014, which would have removed the homestead reinvestment requirement and created additional property exemptions, including exemptions to protect vacation pay and matured life insurance policies, among other things, was held on this committee's Suspense file. AB 198 (Wieckowski) of 2013, a similar bill to AB 1853, was also held on this committee's Suspense file. AB 929 Wieckowski/Chapter 678, Statutes of 2012, increased the dollar amount of the exemptions for a debtor's interest in motor vehicles, jewelry, and implements, professional books, or tools of the trade of the debtor or the debtor's dependent, and also increased the amount of the homestead exemption for persons 55 years of age or older who meet specified low-income criteria. Analysis Prepared by:Chuck Nicol / APPR. / (916) 319-2081