1:05-bk-13780•Carl August Krejci
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA In re CARL AUGUST KREJCI, No. 05-13780 Debtor(s). ______________________________________/ Memorandum on Objections to Claims of Exemption _________________ The court finds no basis for the debtor’s unsupported assertion that an objection to an exemption raised before the 341 hearing is premature. An objection is either timely or tardy. In this case, the Trustee’s objection is timely. A boat is not a household good. In re McGreely, 955 F.2d 957, 959 (4th Cir. 1992). The Trustee’s objection to exemption of the boat will be sustained. The money in the bank accounts can only be exempt if traced to paid earnings. An evidentiary hearing is required to make this determination. The court agrees with the holding of the learned judge in In re Cumberbatch, 302 B.R. 675, 681 (Bkrtcy.C.D.Cal. 2003), that a sale pursuant to a family law decree ordering it is a forced sale, so the proceeds are exempt for six months pursuant to California Code of Civil Procedure § 704.720(b). The court disagrees with the Trustee’s position that this rule only applies to contested judgments and not those made pursuant to agreement; there is no basis to distinguish the effect of one such judgment from the other under state law. Entered on Docket December 12, 2005 GLORIA L. FRANKLIN, CLERK U.S BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA Case: 05-13780 Doc# 25 Filed: 12/10/05 Entered: 12/12/05 16:26:59 Page 1 of 2
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1If there was a recorded declaration of homestead, then the proceeds would be exempt pursuant to § 704.960(a). 2 However, in order to exempt the proceeds the debtor must have resided in the property until the judgment if there was no recorded declaration of homestead.1 Cumberbatch, 302 B.R. at 678. Also, the equalizing payment would not be exempt to the extent the debtor’s interest in the real property at the time of the judgment was worth less than the amount of the payment. An evidentiary hearing appears necessary to resolve these issues. For the foregoing reasons, Trustee’s counsel shall submit a form of order sustaining his objection to exemption of the boat. He shall notice a scheduling conference to obtain a hearing date regarding the bank accounts and the equalizing payment. Adjudication of the objections has become something of a moving target, given the amendments to schedule C. If the court has failed to address any outstanding objection, counsel for the Trustee shall so inform the court. Dated: December 10, 2005 SAlan Jaroslovsky U.S. Bankruptcy Judge Case: 05-13780 Doc# 25 Filed: 12/10/05 Entered: 12/12/05 16:26:59 Page 2 of 2
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