BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  August 26, 2015


                        ASSEMBLY COMMITTEE ON APPROPRIATIONS


                                 Jimmy Gomez, Chair


          SB 308  
          (Wieckowski) - As Amended August 17, 2015


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          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  








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          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  








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            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:









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          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  








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            (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  








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            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.









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          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