If your attorney is aware of the judicial lien (s) and you do not have any non-exempt equity in property to secure the liens, your attorney can file a motion to avoid a judicial lien to prevent the judicial lien from affecting you in the future after the debt was discharge in your bankruptcy.
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Jan 25, 2016 · Motion to Avoid a Judicial Lien If your attorney is aware of the judicial lien (s) and you do not have any non-exempt equity in property to secure the liens, your attorney can file a motion to avoid a judicial lien to prevent the judicial lien from affecting you in the future after the debt was discharge in your bankruptcy.
Should my attorney had filed a motion to avoid a Judicial Lien although my bankruptcy was dismissed without prejudice in 2010?
Mar 17, 2010 · The details of the bankruptcy case: The Chapter 7 debtor filed a motion to avoid a judgment lien and a mechanic’s lien against commercial property that she owned. The debtor asserted that the mortgage on the property exceeded the property’s value, leaving no equity to secure the two liens.
Sep 12, 2013 · Filing for Chapter 7 bankruptcy won't get rid of a lien unless you do more. The lien must qualify for avoidance, and you must file a motion with the court and obtain a court order. Also, the lien must get in the way of (impair) a bankruptcy exemption —the law that allows you to protect property in bankruptcy.
You can avoid a lien if you could apply a bankruptcy exemption to some or all of the equity in the asset, and triggering the lien would prevent you from getting the benefit of the exemption to which you are entitled. (In other words, the lien would cause you to lose some of the equity that would otherwise be exempt.)Oct 18, 2021
When a person wants to avoid a lien, they obtain a judicial determination that the lien no longer encumbers a piece of property. This means they would then be able to sell the property despite the lien. In other words, a lien is seperate from a debtor's personal obligation of the loan.Jul 16, 2021
Understanding Liens in Bankruptcy. A valid lien gives a creditor a legal interest in the property. It allows the creditor to claim the asset, sell it, and use the proceeds to pay down the unpaid debt. In some cases, the debtor agrees to the lien, but not in every circumstance, which is important in bankruptcy.
The lien allows the lender to foreclose or repossess the property if the borrower doesn't fulfill the contract conditions. In most cases, the debtor triggers the foreclosure or repossession by failing to make the monthly payment, but other contract breaches can occur. Involuntary statutory liens.
Avoiding Liens in Chapter 7 Bankruptcy. Filing for Chapter 7 bankruptcy won't get rid of a lien unless you do more. The lien must qualify for avoidance, and you must file a motion with the court and obtain a court order. Also, the lien must get in the way of (impair) a bankruptcy exemption —the law that allows you to protect property in bankruptcy.
Involuntary statutory liens. This type of lien isn't agreed to by the creditor and debtor. Common examples of an involuntary lien include a tax lien and mechanics lien (more below). Involuntary judgment liens. A judgment lien occurs after a creditor takes a debtor to court, wins, and receives a money judgment.
Keep in mind that you can't avoid statutory liens, such as a tax lien (more below), or voluntary liens, such as a mortgage, on your home or your car in Chapter 7 bankruptcy.
Even though you can't cram down a residential property lien, Chapter 13 has a mechanism that can help you lower your home payment. But only if the first mortgage is underwater to the extent that there would be no funds to pay a junior mortgage.
A debtor can't remove a statutory lien, such as a tax lien, through the bankruptcy process. Only the bankruptcy trustee has the power to avoid a statutory lien, and only if the trustee meets certain conditions.
In bankruptcy a motion to avoid a judicial lien can be filed in a Chapter 7 and Chapter 13 bankruptcy case. If the court finds that the judgment lien can be avoided then an order will be issued by the court.
In California, the judgment can become a lien against any real estate located in the county where the judgment was recorded. In many states the creditor can also place a lien against your personal property by filing the notice of judgment lien with the Secretary of State. If a judgment lien has been recorded against your real or personal property, ...
Once the bankruptcy case is filed the Federal Rules of Bankruptcy Procedure, Federal Rules of Procedure and local bankruptcy rules take over. All states have laws governing the enforcement and collection of lien rights and judicial lien rights. Procedures for contested matters in bankruptcy cases are governed by Federal Rule ...
Bankruptcy case rules make no mention of serving a motion to avoid a judicial lien on any state court attorney involved in the matter previously. In the Bryant appeal the debtor’s bankruptcy attorney served the attorney that made an appearance for Mellon and filed a motion for relief from stay filed in the bankruptcy case and still served an officer of Mellon by certified mail. The Ninth Circuit Bankruptcy Appellate Panel held nothing more was required. The lower bankruptcy court unfortunately evaluated the circumstances of not serving the state court attorney as a possible fraud on the bankruptcy court for not serving Mellon’s state court attorney with the motion to value. The 9th Circuit Bankruptcy Appellate Panel decidedly said no. There was no fraud on the bankruptcy court.
So, what do you do when old judgment liens are discovered well after your bankruptcy case is over? Reopen the case, and ask the court to avoid the lien or liens that impair your exemption.
Your bankruptcy case potentially effects all debts arising before you filed. But the legal rights involved can’t have arisen since your bankruptcy was filed. 2. Lien secures a judgment. Liens that can be wiped out because they impair exemptions must be judicial liens, that is a lien created by a lawsuit.
The lien is a judgment lien. The property to which the lien attaches was claimed exempt. The property had too little value to pay any senior liens, the judgment lien, and your exemption. Let’s look at each requirement for an avoidable lien, found in Bankruptcy Code 522 (f). 1.
Tax liens are created by statute. They aren’t covered by this provision of the bankruptcy code. 3. Property was claimed exempt. Because this part of the law is focused on seeing that you get the full benefits of the exemptions you claimed, the property affected by the lien must have been claimed exempt.
A creditor can only obtain a judgment against a borrower if the borrower defaults on their debt. A creditor records an “abstract of judgment” with the government after the creditor wins a lawsuit against a borrower. The abstract of judgment creates a lien on any real property owned by the debtor in that county.
A good bankruptcy attorney will fight to remove a judgment lien as part of a Chapter 7 bankruptcy. The court does not automatically remove liens. A debtor must file a Motion to Avoid Lien with the bankruptcy court in order to obtain a court order removing the lien.
An abstract attaches to all real property located in the county where it was recorded. If you had no real property, it did not attach to anything. If you had real property when the abstract was recorded, the lien stays attached until it is removed. It can be removed in bankruptcy if it "impairs an exemption." A motion is required. The DEBT is discharged (unless it is a non-dischargeable debt). Therefore the lien created by the abstract cannot attach to after-acquired post-petition real property because there is no longer a debt.
if the case is closed, you can ask the Court to reopen it and then file your motion to avoid lien. You will need to pay a reopening fee if the case is closed and you need to reopen it ($260). More.
Yes, and you either have to file a motion with the court to void the lien or pay the lienholder some minimal amount to terminate the lien. Some times they do it for free if your bk attorney requests it,
If the abstract judgment was not recorded PRIOR to you filing bankruptcy then the creditor cannot record it...