BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 929|
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THIRD READING
Bill No: AB 929
Author: Wieckowski (D)
Amended: 8/23/12 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-2, 6/14/11
AYES: Evans, Corbett, Leno
NOES: Harman, Blakeslee
SENATE APPROPRIATIONS COMMITTEE : 6-3, 8/25/11
AYES: Kehoe, Alquist, Lieu, Pavley, Price, Steinberg
NOES: Walters, Emmerson, Runner
SENATE FLOOR : 16-16, 9/7/11 (FAIL)
AYES: Alquist, Corbett, Correa, De Le�n, DeSaulnier,
Evans, Hancock, Kehoe, Leno, Liu, Lowenthal, Negrete
McLeod, Pavley, Price, Simitian, Steinberg
NOES: Anderson, Berryhill, Blakeslee, Calderon, Cannella,
Dutton, Emmerson, Fuller, Gaines, Harman, Huff, La Malfa,
Lieu, Runner, Strickland, Wyland
NO VOTE RECORDED: Hernandez, Padilla, Rubio, Vargas,
Walters, Wolk, Wright, Yee
ASSEMBLY FLOOR : 54-21, 5/19/11 - See last page for vote
SUBJECT : Debtor exemptions: bankruptcy
SOURCE : Author
DIGEST : This bill increases the dollar amount of the
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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.
Beginning April 1, 2013, and every three years thereafter,
require the Judicial Council to submit to the Legislature
the amount by which the dollar amounts of the homestead
exemptions described above may be adjusted based on the
change in the annual California Consumer Price Index for
All Urban Consumers, as specified. This bill also
increases the amount of the homestead exemptions for
persons 55 years of age or older who meet specified income
criteria.
Senate Floor Amendments of 8/23/12 strike the monies for
homestead exemption, thus, returning the amounts to
existing law. The amendments also strike a provision that
would have required the Judicial Council to submit a report
on the homestead exemptions in 2016 (as opposed to 2013).
Senate Floor Amendments of 4/9/12 increase the dollar
amount of the exemptions for a debtor's interest in
specified property in an attempt to conform these figures
to federal exemption amounts and revise the date for the
next adjustment to April 1, 2016.
Senate Floor Amendments of 8/31/11 strike the proposed
changes that will revise and recast the 703 exemptions, but
retain the proposed increases to the 703 exemptions for
motor vehicles, jewelry, and tools of the trade.
ANALYSIS : Existing law provides that in a case under
Title 11 of the United States Code (relating to
bankruptcy), all of the exemptions, other than the 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. (Code of Civil Procedure Section 703.140 (a).)
Existing law, the 703 exemptions, provide for eleven
categories of exemptions, modeled after federal law, which
the bankruptcy debtor may elect to use in lieu of the 704
exemptions. Those exemptions include:
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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.
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 $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. (Code of Civil Procedure Section
703.140(b).)
Existing law, the 704 exemptions, specify 21 different
types of property and the conditions under and amount of
which a debtor may claim an exemption from enforcement of a
money judgment. (Code of Civil Procedure Sections 704.010
through 704.210.)
Existing law requires the Judicial Council to adjust the
above dollar amounts 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. (Code of Civil Procedure Section
703.150.)
This bill revises and recast the following Section 703
exemptions so that they mirror corresponding Section 704
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exemptions for specified property, but with an increase in
the dollar amount of the exemption:
The exemption for the debtor's interest in a motor
vehicle or vehicles, not to exceed $4,800 (an increase
from $2,775 in value for one or more motor vehicles for a
single vehicle).
The exemption for the debtor's aggregate interest in
jewelry, heirlooms, and works of art, not to exceed
$1,425 (an increase from $1,150 for jewelry only).
The exemption for the debtor's aggregate interest in
tools, implements, instruments, materials, uniforms,
equipment, one commercial motor vehicle, and other
personal property (i.e. "tools of the trade") reasonably
necessary to and actually used by the debtor or the
debtor's spouse in the exercise of their respective
professions, not to exceed $7,175 (an increase from
$1,750 for tools of the trade, excluding any vehicles).
Existing law contains both an automatic and a declared
homestead exemption that serve to protect a portion of
equity in a debtor's home from creditors. (Code of Civil
Procedures Sections 704.710 et seq., 704.910 et seq.)
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. (Code of
Civil Procedures Section 704.710.) A declared homestead
exemption applies, as specified, to a dwelling specified in
a recorded homestead declaration. (Code of Civil
Procedures Sections 704.910, 704.920.)
Existing law sets the amount of the homestead exemption as
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
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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: (1) a person 65 years of age or
older; (2) a person physically or mentally disabled and
as a result of that disability is unable to engage in
substantial gainful employment, as specified; or (3) a
person 55 years of age or older with a limited gross
annual income, of $22,000 and if married not more than
$29,000.
This bill provides that a person 55 years of age or older
with a gross annual income of not more than $25,000 or, if
the judgment debtor is married, a gross annual income,
including the gross annual income of the judgment debtor's
spouse, of not more than $35,000 and the sale is an
involuntary sale.
Existing law requires the Judicial Council, to every three
years, adjust the amount of the exemptions based on the
change in the annual California Consumer Price Index for
All Urban Consumers, as specified.
This bill, beginning April 1, 2013, and every three years
thereafter, requires the Judicial Council to submit to the
Legislature the amount by which the dollar amounts of the
homestead exemptions may be adjusted based on the change in
the annual California Consumer Price Index for All Urban
Consumers, as specified.
Comments
In a bankruptcy action, exemptions generally allow a person
to protect certain types of assets during the bankruptcy
process. If an asset is exempt, the asset can generally
not be taken to pay creditor's claims. The concept behind
exemptions is to provide an individual with a minimum
amount of property and money that can be used to give
him/her a "fresh start." Individuals filing bankruptcy in
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California can choose between two different sets of
exemptions: the 703 exemptions or the 704 exemptions.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 8/24/12)
California Labor Federation
Central California Legal Services
National Association of Bankruptcy Attorneys
Peace Officers Research Association of California
OPPOSITION : (Verified 8/24/12)
California Bankers Association
California Association of Collectors, Inc.
National Association of Bankruptcy Trustees
ARGUMENTS IN SUPPORT : According to the author:
Over the past few years of severe recession,
Californians have been increasingly forced to resort
to bankruptcy. Current exemptions under bankruptcy
can leave debtors with little left to start their
lives over again. The exemptions for tools of the
trade, home equity, and automobiles are currently
insufficient.
This bill creates a more fair structure between
debtors' exemption options under bankruptcy. In
particular, when homeowners are at risk of losing
their homes, the exemptions should take into
consideration the current home values. Permitting
debtors to both stay in their homes and to keep such
essential items as tools of their trade and an
automobile will allow Californians to retain
sufficient assets in order to get back on their feet,
get back to work, and recover from financial
insolvency.
ARGUMENTS IN OPPOSITION : The California Bankers
Association opposes this bill and writes, "This bill
relating to bankruptcy exemptions, unless it is amended to
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remove the dramatic increases to the homestead exemptions.
These exemptions were significantly increased on January 1,
2010; however your measure doubles these recently enacted
exemption levels. In addition, these increases are
unnecessary and circumvent a report from the Judicial
Counsel regarding a consumer price index recommended change
due by April 2013.
"In January 2010, California increased its homestead
exemption from $50,000 to $75,000 for a single person;
$75,000 to $100,000 for a family unit; and from $150,000 to
$175,000 for seniors and the disabled. Those increases
were accompanied by a mechanism for review every three
years by the Judicial Council of the homestead exemption
for increases due to inflation. The Judicial Council is
currently scheduled to provide its first review in April
2013. This bill circumvents this new statutory system by
doubling the recently increased homestead exemptions to
$150,000 for a single person, $250,000 for a family unit,
and $350,000 for seniors and the disabled. In 2010, only
three percent of all Chapter 7 cases filed identified
assets exceeding allowable exemptions, thereby permitting
bankruptcy trustees to compensate unsecured creditors. The
doubling of the homestead exemption proposed in AB 929
dramatically extends bankruptcy exemptions, shielding
hundreds of thousands in assets from recovery by creditors.
Unsecured creditors that will be negatively impacted by
the proposed doubling of the homestead exemption include
not only unsecured lenders, but also the State of
California, small business, medical providers, contractors,
and other entities that expect payment from the debtor.
For example, in 2010 California bankruptcy trustees made
priority claim payments under Chapter 7 asset cases to the
California Franchise Tax Board of approximately $37.5
million and $12.4 million to the State Board of
Equalization. While most taxes are not dischargeable under
bankruptcy law, the proposed doubling of the homestead
exemption in this bill impedes and delays the collection of
these tax debts to the state, imposing significant General
Fund pressures."
ASSEMBLY FLOOR :
AYES: Allen, Ammiano, Atkins, Beall, Bill Berryhill, Block,
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Blumenfield, Bonilla, Bradford, Brownley, Buchanan,
Butler, Charles Calderon, Campos, Carter, Cedillo,
Chesbro, Cook, Davis, Dickinson, Eng, Feuer, Fong,
Fuentes, Galgiani, Gordon, Hall, Hayashi, Roger
Hern�ndez, Hill, Huber, Hueso, Huffman, Jones, Lara,
Bonnie Lowenthal, Mendoza, Miller, Mitchell, Monning,
Pan, Perea, V. Manuel P�rez, Portantino, Skinner, Smyth,
Solorio, Swanson, Torres, Wagner, Wieckowski, Williams,
Yamada, John A. P�rez
NOES: Achadjian, Conway, Donnelly, Fletcher, Beth Gaines,
Garrick, Gatto, Grove, Halderman, Harkey, Jeffries,
Knight, Logue, Mansoor, Morrell, Nestande, Nielsen,
Norby, Olsen, Silva, Valadao
NO VOTE RECORDED: Alejo, Furutani, Gorell, Hagman, Ma
RJG:dn 8/24/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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