Memorandum of Decision Re: Homestead Exemption

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In re MARIA URRUTIA,                                             No. 99-11300      Debtor(s). ______________________________________/
Memorandum on Objection to Homestead Exemption
     The real property at 113 Harbor Drive in Corte Madera has been the residence of debtor Maria Urrutia since 1974. Her husband died in 1991, and she continued to live in the property with her son.      In late 1998, due to financial pressure, Urrutia rented a room at a different location and rented the Harbor Drive property to her son and several others. The majority of her personal possessions remained at the Harbor Drive property.      On advice of her bankruptcy counsel, Urrutia moved back into the property on April 8, 1999, recorded a declaration of homestead on April 22, 1999, and filed her Chapter 7 petition on April 26, 1999, claiming the property as her exempt homestead. The trustee objects to allowance of this exemption, arguing that Urrutia did not have the requisite intent to make the property her homestead.      Under some circumstances, a homestead exemption may be disallowed despite residence of the debtor in the property because the debtor did not have true intent to reside in the property. Ellsworth v. Marshall, 196 C.A.2d 471 (1961). However, the opposite is also true: intent to return may justify allowance of a homestead exemption even if the debtor is temporarily not in residence. Webb v. Trippet, 235 Cal.App.3d 647 (1991). The question of the debtor's intent is primarily one of fact to be decided by the trial court. Ellsworth v. Marshall, supra, at 476.      In this case, there are none of the elements of sham residence which might justify disallowance of the exemption. The property had been the debtor's residence for many years, both before and after the death of her husband. Most of her personal property remained there at all times. Her absence was temporary, of only a few months' duration, and caused only by her financial condition. The only fact argued by the trustee in support of disallowance is that she moved back to the property on the eve of her bankruptcy. However, such pre-bankruptcy planning is permitted and is not in itself cause for disallowance of an exemption. In re Roosevelt, 176 B.R. 200, 208 (9th Cir.BAP 1994).      Considering all of the facts and circumstances, the court finds that the debtor truly intended the Harbor Drive property to be her residence. Accordingly, the objection of the trustee to her homestead exemption will be overruled. Counsel for the debtor shall submit an appropriate form of order.
Dated: November 10, 1999                                                                         ____________________________                                                                                                                      Alan Jaroslovsky                                                                                                                      United States Bankruptcy