Can I keep my rental property when I file for bankruptcy in California?

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Question:

I am considering filing bankruptcy because of a lot of credit card debt, but I own some rental property that I don't want to lose. What options do I have?

Answer:

It depends on what type of bankruptcy you file and how much equity you have in the property. 

California Rental Property in Chapter 7

If you file a Chapter 7 bankruptcy, you must give up any property you own that you can't protect with an exemption. The trustee can take nonexempt property, sell it, and distribute the proceeds among your creditors. 

California offers bankruptcy filers two lists of exemptions to choose from. You must select one list or the other; you can't mix and match some exemptions from one and some from the other. Which exemption list you choose will depend on what type of property you own and what you most want to keep.

If you want to keep your rental property above all else, and you don't need to use your homestead exemption to protect the home you live in, California's System 2 exemptions allow you to use your homestead exemption as a "wildcard," to protect any property you wish. Currently, this exemption protects just over $22,000 worth of property. If your equity in the rental property doesn't exceed this amount (or exceeds it by very little), and you don't need to use the homestead exemption for other property, you can use the exemption to keep your property in Chapter 7.

However, if your equity exceeds this amount, or you have other property that's a higher priority (such as the home you live in), you might lose your rental property if you file under Chapter 7.

California Rental Property in Chapter 13

If you file under Chapter 13, you won't lose your rental property. The trustee can't take your property in Chapter 13 bankruptcy. However, you will have to enter into a repayment plan to pay off some of your debt over three to five years. 

Owning rental property will affect your Chapter 13 case in several ways. For example, if you have substantial equity in your rental property, you might have to pay more into your Chapter 13 plan, to make sure your creditors are no worse off than they would have been if you had used Chapter 7. 

This site does not provide legal advice and users of this site should not interpret any of the information presented here as legal advice. The information provided merely conveys general information related to commonly asked legal questions. We are not a law firm and the employees responding to questions are not acting as your legal attorney. You should ultimately consult with a Lawyer for your case.

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