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In California, a debtor has been staying in the attic of her parents'
house for a few months, after having lived on her own from the age of
18-28. She is contemplating filing ch. 7 banktuptcy. There is some
junk her offsite relative is storing in this attic that may have some
value, to which she has no claim, but it is in her living space. A
NOLO bankrtupcy preparation book says if there are assets in your
residence that are not yours you have to list them and state who the
owner is. Also, the debtor's parents' stuff is all over the rest of the
house. She uses the kitchen and livingroom rarely. She has no
non-exempt assets.
Would a sheriff going to come in this whole house and "assume
everything is [debtor's] assets," as would be done with an "open to the
public business" to which a levy is being executed and those assets are
seized?
Is the right thing to do to list all of their assets as those that are
"at [debtor's] residence or held by [debtor]", or should she separate
her residence by making it in to an apartment with a lock and seperate
entrance?
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Michelle,
Such books are general in nature and the laws in your locale may vary,
which is why you should speak with a lawyer. I think that listing this stuff
would be wise. Also, I'm not convinced that you have a "residence", it
sounds like you're a guest in your parents home. Do not install a door lock
without their knowledge and permission.
Good luck,
Dave M.
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On 30/12/04 11:14 pm, in article
1104448490.995713.302000@z14g2000cwz.googlegroups.com,
"michelle9384@yahoo.com" <michelle9384@yahoo.com> wrote:
Is the right thing to do to list all of their assets as those that are
"at [debtor's] residence or held by [debtor]", or should she separate
her residence by making it in to an apartment with a lock and seperate
entrance?
She is a lodger. Whatever was in her parents house when she moved in is
presumptively theirs, not hers.
To avoid accusations of anything, she might be advised to make a note of the
issue in the Statement of Affairs. DO NOT LIST property that is not
controlled by her, or held by her in actual or constructive trust.
If you live in furnished accommodations with lots of expensive knicknacks
about, those knicknacks are not yours, and to appropriate them is theft.
It is true that "Because of the potential consequences of failing to list
property in the schedules, it is always better to be over-inclusive, rather
than under-inclusive." (NCLC Consumer Bankruptcy Law and Practice, 5th ed.,
sec. 7.3.3.1.1, pp, 118-19) But "it is not critical to list each piece of
property in the right category as long as it is listed somewhere." You have
disclosed the issue if it's noted in the Statement of Financial Affairs, and
that is all you have to do. (Indeed, I think you don't even have to do that:
all you need to say is that you live in your parents' home amidst a lot of
their stuff, and that you are (if that is the case) living rent-free.)
If you can find the NCLC book in a library (or law library) use it: it's far
more complete than the Nolo Press book (which is also good). The NCLC book
is intended for lawyers who do not normally practice bankruptcy, so it's
reasonably elementary in style, and still very complete.
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