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Why a Homestead Exemption?

For most Americans, their home is their most valuable asset.  One of the biggest questions that any person who is considering bankruptcy or is facing mounting debts with aggressive creditors will ask is, “Will I lose my house?”

Filing a homestead exemption may provide protections from certain creditors and keep the equity in your home from being taken.  A homestead exemption can protect your property’s equity from certain creditors if you file for bankruptcy or are anticipating eventual judgments in favor of those creditors.  This is all within certain exemption limits and, also, with limitations of application.  The limits are higher for seniors and disabled homeowners. 

The home being protected must be the homeowner’s primary residence for all purposes.

As of April 1, 2019, California allows for the following pursuant to Code of Civil Procedure §§ 704.710, 704.720, and 704.730:

  • If the homeowner is single and not disabled, then the homeowner may be legally exempt up to $75,000 of equity accrued in the home.  This amount increases to $100,000 if the homeowner is married.
  • If the homeowner is 65 years old or older, then the homeowner may be exempt up to $175,000.  Or, this exemption amount may apply if the homeowner is at least 55 years old and has low income and creditors are forcing the sale of the home.

As it relates to bankruptcy law, the exemption applies to Chapter 7 and Chapter 13 bankruptcies.  Depending on how much equity may exist beyond the applicable exemption amount, a trustee may still decide to sell your property.  Talk to an attorney for details.

An important caveat with homestead exemptions is the following:

  • If your home is being foreclosed upon by a mortgage lender or bank, a homestead exemption will not protect your equity.
  • If the homeowner has a judgment against him/her for marital support, child support or if the property has a mechanic’s liens, then a homestead exemption will not offer protection.

In short, homestead exemptions offer protections from certain creditors or can protect equity in the case of an eventual bankruptcy. 

A homeowner should consult with his or her attorney and tax planning professional to discuss the filing of a homestead exemption.

By: Steven E. Alfieris, Esq.

For the general public: This Blog/Web Site is made available by the law firm publisher, Dias Law Firm, Inc., for educational purposes. It provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that there is no attorney-client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.

For attorneys: This Blog/Web Site is informational in nature and is not a substitute for legal research or a consultation on specific matters pertaining to your clients. Due to the dynamic nature of legal doctrines, what might be accurate one day may be inaccurate the next. As such, the contents of this blog must not be relied upon as a basis for arguments to a court or for your advice to clients without, again, further research or a consultation with our professionals.

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COVID-19 and the Statute of Limitations

How has the pandemic, COVID-19, affected a person’s ability to file a lawsuit?  Governor, Gavin Newsom issued shelter-in-place orders on March 19, 2020.  And from those orders, some counties shut down their courthouses, and some did not.  Our local court, Kings County Superior Court, remained open throughout the spring and summer.  But since, some courthouses closed, the California Judicial Council imposed Emergency Rule 9,which suspended the statute of limitations for civil actions from March 6, 2020, until ninety (90) days after the governor lifted the state of emergency.  Emergency Rule 9 was subsequently amended and clarified that cases that have a statute of limitations less than six (6) months or one hundred eighty (180) days, the statute of limitations is tolled (or on hold) until August 3, 2020.  For cases that have a statute of limitations that is more than six (6) months or one hundred eighty (180) days, then the statute of limitations is tolled (or on hold) until October 1, 2020. 

This emergency rule is intended to apply broadly to any civil action – including family law, probate law, employment law and any special proceedings.  For a plaintiff who missed a statute of limitations deadline after April 6, 2020, he or she may have an extended opportunity to file a lawsuit.  For a defendant, it may mean that he or she may have to fight a lawsuit that would have otherwise been time barred.

Let the knowledgeable attorneys at Dias Law Firm, Inc. assist you with your legal matter.  Call us for a consultation today!

By: Sarah M. Hacker, Esq.

For the general public: This Blog/Web Site is made available by the law firm publisher, Dias Law Firm, Inc., for educational purposes. It provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that there is no attorney-client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.

For attorneys: This Blog/Web Site is informational in nature and is not a substitute for legal research or a consultation on specific matters pertaining to your clients. Due to the dynamic nature of legal doctrines, what might be accurate one day may be inaccurate the next. As such, the contents of this blog must not be relied upon as a basis for arguments to a court or for your advice to clients without, again, further research or a consultation with our professionals.

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New Statewide COVID-19 Tenant and Landlord Protection Legislation on August 31, 2020

On August 31, 2020, Governor Gavin Newsom and the California legislature enacted the Tenant, Homeowner, and Small Landlord Relief and Stabilization Act of 2020.  This legislation has been touted to protect millions of tenants from eviction and property owners from foreclosure due to the economic impacts of COVID-19.  It is important to note that these protections apply to those tenants who declare an inability to pay all or part of their rent due to a COVID-related reason; however, landlords can immediately pursue any case that does not involve a tenant who has been unable to pay because of a financial hardship related to the pandemic. 

Under the legislation, no residential tenant who provides a declaration of hardship under penalty of perjury can be evicted before February 1, 2021, as a result of rent owed due to a COVID-19 related hardship accrued between March 4, 2020, through August 31, 2020.  Further, no residential tenant can be evicted for a COVID-19 related hardship that accrues between September 1, 2020, through January 31, 2021, if the tenant returns a declaration of hardship under penalty of perjury and pays at least 25% of the rent due.  All higher income tenants who make more than 130% of the median income in their area, if it is above $100,000, must provide documentation to support their declaration upon a landlord’s request.  

Tenants are still responsible for paying all unpaid amounts to landlords for any unpaid rent due between March 4, 2020, through January 31, 2021, which landlords may begin to recover this debt in Small Claims court on March 1, 2021.  The jurisdiction for small claims court has been temporarily expanded to allow landlords to recover those amounts and will sunset on February 1, 2025.  Landlords who do not follow the court eviction process, i.e. locking the tenant out, throwing property out onto the curb, shutting off utilities, etc., will receive increased penalties under the Act.

The legislation further provides additional legal and financial protections for tenants as follows:

            1.         Extends notice period for nonpayment of rent from 3 to 15 days for tenants to respond to landlord’s notice to pay rent or quit;

            2.         Requires landlords to provide hardship declaration forms in a different language if rental agreement was negotiated in a different language;

            3.         Provides tenants a backstop if they have a good reason for failing to return hardship declaration within 15 days;

            4.         Requires landlords to provide tenants a notice detailing their rights under the Act;

            5.         Limits public disclosure of eviction cases involving nonpayment of rent between March 4, 2020, through January 31, 2021; and

            6.         Protects tenants against being evicted for “just cause” if the landlord is shown to be evicting the tenant for COVID-19 related nonpayment of rent.

The legislation also extends anti-foreclosure protections in the Homeowner Bill of Rights to small landlords with 1 to 4 non-owner occupied units, provides new accountability and transparency provisions to protect small landlord borrowers who request CARES-compliant forbearance, and provides the borrower who is harmed by a material violation with a cause of action.  Lastly, the existing local ordinances can generally remain in place until they expire, and future local action cannot undermine this Act’s framework.

The knowledgeable attorneys at Dias Law Firm, Inc. are here to help with your eviction or foreclosure issues.  Contact us today for a consultation.

By: Jonette M. Montgomery, Esq.

For the general public: This Blog/Web Site is made available by the law firm publisher, Dias Law Firm, Inc., for educational purposes. It provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that there is no attorney-client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.

For attorneys: This Blog/Web Site is informational in nature and is not a substitute for legal research or a consultation on specific matters pertaining to your clients. Due to the dynamic nature of legal doctrines, what might be accurate one day may be inaccurate the next. As such, the contents of this blog must not be relied upon as a basis for arguments to a court or for your advice to clients without, again, further research or a consultation with our professionals.

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