Do I list unused airline tickets and pre-paid rent as assets?

[ksgirl38]

KS,

Thanks for your interest. They were all purchased in November. At that time, I was planning on returning to the States for Christmas. Most of the amounts are around $200. Since I only see my family every other year, a $200 gift card for missed birthdays, two Christmases, graduations, etc., doesn't seem excessive to me; though I can see how it might arouse suspicions. The gifts are for my nieces, nephews, brothers, sisters, parents, etc.

I certainly see The Lady's point--that I should examine my spending patterns. When I made the purchases, BK hadn't even entered my mind; I was more concerned about seeing my family, and, well, to be honest, I didn't want to be seen as cheap or broke, showing up empty handed at Christmas after being away for two years.

That said, as I had mentioned previously, as soon as I entertained the possibility of BK, I stopped cold using my cards.

Funny how something so honest and heartfelt--like buying presents for family members--can be construed as a malicious intent to deceive!

Well if they'd been smaller amounts purchased awhile ago I would've said you are probably safe being off the radar, but these could be questioned.

[sailing2013]

I appreciate the passion you display in your response, Help, if not your argument's rigor. You seem to conflating "physically living" somewhere with "residency." There are not the same, certainly not in the legal sense. Think of all the immigrants who stay illegally in Arizona--they may live in Arizona, but they are not legal residents. Their legal residency resides in their home country.

I know this sounds like semantics--and I hate semantics; then again, how much of the law is simply just semantics?--but there is a difference between physically staying somewhere and legally being a resident somewhere. Even though I stay in Oz, I am not a resident. Under no circumstances or interpretation am I a legal resident of Australia. I am a tourist. My visa says as much.

"Your strongest arguments are extremely weak." Why? I vote in California; and certainly you cannot vote where you are not a resident. And my assets are located in California. According to my research:

"Debtors determine which district to file their case based on two factors. The first is where the debtor has been living; the second is where the principal assets have been located. Both of these factors are based on the time period of the 180 days prior to the filing. In most cases, the answer two both factors is the same. However, someone may have moved from their district while still having their assets located there. In this case, the debtor would be able to file in either of the districts specified by the current residence or current location of assets."

That said, I do reckon this is best left to an attorney to muddle through!

Cheers,
Steve

[goon]

A person domiciled in California remains a resident under the state tax code when away for temporary purposes. Holding elective or appointive office in the U.S. government, or being employed by someone who does, is considered a temporary purpose. However, anyone out of the state for an uninterrupted 546 consecutive days is considered to be away for other than temporary purposes and may lose residency.

http://www.ehow.com/about_6397207_ca...dency-law.html
https://www.ftb.ca.gov/aboutFTB/manu.../rstm/2000.pdf

If you have been away for 2 years than you quite likely are no longer considered a resident. You would be considered domiciled in California assuming that is where you intend to return and make your home but if you are away for more than 18 consecutive months then you become considered a non-resident in most cases (and all the exceptions I saw were related to elected/appointed government positions)

You are still able to legally vote based on being an "overseas voter" which is linked to the last place you were a resident when in the US http://www.leginfo.ca.gov/cgi-bin/di...0&file=300-362

Technically at the moment I don't think you are legally a "resident" of anywhere

Also in one of the links above (I believe the second one) it discusses that maintaining a drivers license does not constitute residency.

Now from what I have read, an argument could be made that as soon as you return you instantly become a resident again as you are technically domiciled in CA... but now the sticky part, I couldn't quickly find anything specific to BK but many other legal actions in the state (for example filing for divorce) require you to have been a resident for the 6 months prior, and technically at the moment (based above) you are not currently a resident until at a minimum you return to CA.


In any event my 2 cents as I got board and decided to do some searching. At the end of the day this is definitely a corner case, the big question would be is there any case law on this.

[helpmeout]

I appreciate the passion you display in your response, Help, if not your argument's rigor. You seem to conflating "physically living" somewhere with "residency." There are not the same, certainly not in the legal sense. Think of all the immigrants who stay illegally in Arizona--they may live in Arizona, but they are not legal residents. Their legal residency resides in their home country.


"Your strongest arguments are extremely weak." Why? I vote in California; and certainly you cannot vote where you are not a resident. And my assets are located in California. According to my research:

For years, my ex voted in my district (it's where the marital home was) even though he was not a resident of that county, but a different county. Nobody really complained, so it wasn't an issue.

Being able to vote in your last state of residence when you are an American citizen living abroad does not equate to you being a resident of said state. Especially when it comes to exemptions.

[bcohen]

Being able to vote in your last state of residence when you are an American citizen living abroad does not equate to you being a resident of said state. Especially when it comes to exemptions.

That may be true, but obviously, any U.S. citizen or legal permanent resident has the right to declare bankruptcy here. Furthermore, if someone claims to be a resident of X state, and they have a physical address in X state, then how is anyone going to complain if the person files for bankruptcy in that state, as a resident of that state?

[helpmeout]

That may be true, but obviously, any U.S. citizen or legal permanent resident has the right to declare bankruptcy here. Furthermore, if someone claims to be a resident of X state, and they have a physical address in X state, then how is anyone going to complain if the person files for bankruptcy in that state, as a resident of that state?

You don't think that the Trustee is going to question the return ticket back to where he is actually residing? Who knows, he may get lucky and get a Trustee who doesn't do his/her homework. I know that if I were a trustee and there was a return ticket back to another country, I would be questioning it and asking for a copy of his passport and tourist vista to see where he was actually living. And then decide what I was going to do about any California exemptions that he was using.

He's not in the military, so he doesn't get to claim that he's a resident of CA.

[sailing2013]

From the bottom of my heart, thank you, Goon. Your research surpasses anything I could have expected from an on-line forum. I wouldn't even have known where to find that information on-line. Truly appreciated.

"Domiciled?" Now that's a word I've never heard before! And, from your excellent post, now I understand the term, and how it applies to me.

And it saddens me to think I am a man without any legal residence. Makes me sound like a mercenary or arms dealer!

So now it looks like, if I do choose to file, I would be limited to the federal deductions. As I'm confused about federal vs. state deductions anyway, I'll post a separate thread about that (since this one is meandering all over the place).

Thanks again, Goon!

[sailing2013]

Thanks, Help, for restating your position. I more clearly see your point-of-view now.

And, based on Goon's research as well, I believe I was wrong; and may not be eligible for using California's exemptions.

Initially I thought since the bankruptcy documents don't ask for locations traveled, I could just list my SF address; and have the issue be moot. Don't ask? Don't tell.

That said, on my bank statement, all of my withdrawals are from ATM's in Australia; so, well, if that wouldn't be a give away, nothing would!

There is a question on the forms, list all of your previous addresses within three years. But the only addresses I have used are in SF--I don't receive any mail Down Under. I am not on any lease or pay rent--I stay with my girlfriend. And I pay my credit card bills, manage my accounts, etc. via the internet.

That said, not revealing that I've spent the last two years away would seem deceptive. And if I was the trustee, and found out someone made such an omission, I'd be freaking livid!

Regarding Cohen's point, I am eligible to file; just not using California's exemptions. If I file, it will be using the federal ones.

Thanks again, Help and Cohen! Slowly this process is coming into focus!

[keepsmiling]

This is so interesting. I'm hoping for your sake that it's all purely academic. It's becoming clearer and clearer that you shoudn't rush to file.
If you default NOW and save your money, you could hold out a pretty long time. Again, with no health insurance, you really might want to wait. Accidents happen.

[LadyInTheRed]

That may be true, but obviously, any U.S. citizen or legal permanent resident has the right to declare bankruptcy here.

Being a US citizen does not necessarily give you a right to file BK in the US. It sounds like sailing2013 has property in the US which is enough to file BK here. He may also have a residence or domicile in the US (the other two qualfiers for filing in the US). As already stated, that very well may depend on case law. My understanding is that you can have several residences but only one domicile.

The real issue is what state's exemptions he can use. The bankruptcy code bases that on where the debtor is domiciled. See 11 USC § 522(b)(3): http://www.law.cornell.edu/uscode/text/11/522. While some states have additional residency requirements for exemptions, I can't find any evidence that California does, but I may have missed something. California's law on exemptions begins at Code of Civil Procedure Section 703.010, which you can find at http://www.leginfo.ca.gov/.html/ccp_..._contents.html. Goon's links have nothing to do with bankruptcy or debt collection and probably do not apply to this issue. Residency for tax purposes and the other purposes in the ehow link is not necessarily the same as domicile for bankruptcy purposes. A California bankruptcy attorney would know if there is relevant case law.

Furthermore, if someone claims to be a resident of X state, and they have a physical address in X state, then how is anyone going to complain if the person files for bankruptcy in that state, as a resident of that state?

Nobody should lie on their bankruptcy petition in order to use the set of exemptions they prefer, or for any other reason. That is BK fraud and recommending fraud is aganst BKforum rules.

sailing2013, I wouldn't give up on the possibility of using California exemptions until you consult with a bankruptcy attorney on the issue. Just be prepared for the possibility that you may have to use federal exemptions. Fortunately, federal exemptions do have a pretty generous wildcard even if not as generous as the California System 2 wildcard.

[sailing2013]

Thanks again, Lady. Your knowledge, diligence and clear articulation are certainly assets on this board.

Regarding using either California or federal exemptions, I think I should be okay using either. If I file this coming summer, at the time my total assets (around $12.5K) would be covered by either exemption.

Cash: $6K
Airline Tickets: $2K
Gift Cards: $2K
Prepaid rent: $1K
Laptop, phone, clothes: $1.5K

As I don't own very much, or have very much money, either exemption should work.

Cheers, and thanks again!
Steve