.jpg)
avoiding a judgment lien
But wait a minute....What about*I**n re Pederson, 230 BR 158 (9th
Cir BAP 1999) *(citing Farrey vs. Sanderfoot)? I just had this
issue come up recently. In order to be able to avoid a lien on
property, the debtor must have acquired the property prior to the
lien attaching. This isn't a matter of senior vs. junior--if the
property wasn't acquired prior the lien being recorded, then it
cannot be avoided. (There is one New Mexico case that goes the
other way, so there is an argument to be made, but you'd be arguing
to have the court take a New Mexico Bk court decision as higher
precedent than the BAP. Moreover, if you prevailed, and the other
side appealed, it could go to the BAP and they've already ruled on it)
*************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what this
means at
The post was migrated from Yahoo.
Dear Stella,
I see nothing in 522(f) that limits avoiding judgment liens to those that are junior to consensual liens; and the BAP agrees with me. Indeed, in In re Charnock, 318 BR 720, 721 (B.A.P. 9th Cir. 2004), the BAP held:
Judicial lien holder and appellant Byron Z. Moldo ("Creditor") appeals from the bankruptcy court's order avoiding his judicial lien under Section 522(f). Creditor argues that his lien should not be avoided because it is senior to a subsequent consensual lien, which has not been avoided. We disagree. Senior as well as junior judicial liens are avoidable under the plain meaning of the statute. We are not persuaded that this result is either absurd or contrary to Congress' intent, as Creditor argues. Accordingly, we AFFIRM.
All the best,
Nick
Nicholas Gebelt, Ph.D., J.D.
Certified Bankruptcy Specialist
[cid:image001.jpg@01CCE68C.E9843F70]
Law Offices of Nicholas Gebelt
15150 Hornell Street
Whittier, CA 90604
Phone: 562.777.9159
FAX: 562.946.1365
Email: ngebelt@goodbye2debt.com; ngebelt@gebeltlaw.com
Web: www.goodbye2debt.com
Blog: www.southerncaliforniabankruptcylawblog.com/
We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.
Confidentiality Note: This e-mail is intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential, or otherwise protected from disclosure. Dissemination, distribution, or copying of this e-mail or the information herein by anyone other than the intended recipient, or an employee or agent responsible for delivering the message to the intended recipient, is prohibited. If you have received this e-mail in error, please notify us immediately at 562.777.9159 or e-mail info@gebeltlaw.com and destroy the original message and all copies.
Representation Note: If you have not signed a contract of representation, the Law Offices of Nicholas Gebelt do not represent you, and this email does not contain any legal advice for you.
IRS Circular 230 Disclosure: In order to comply with the requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue code, or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
The post was migrated from Yahoo.
Dear Stella,
Judgment liens against the debtor's home can be avoided by motion pursuant to 11 U.S.C. 522(f)(1)(A). Use Form F 4001-1.MOTION.RP, which is available on the Court's website, and in the Best Case software. I assume it's also available in the other bankruptcy software packages. The process can be done without a hearing. See LBR 4003-2 for details on the process. Two important things about service of the motion:
(1) The motion, notice, and supporting papers must be served on the holder of the lien
to be avoided in the same manner as a summons and complaint under FRBP 7004.
(2) The motion, notice, and supporting papers also must be served on any other holder
of a lien or encumbrance against the subject property.
Good luck,
Nick
Nicholas Gebelt, Ph.D., J.D.
Certified Bankruptcy Specialist
[cid:image001.jpg@01CCE68A.CBF554F0]
Law Offices of Nicholas Gebelt
15150 Hornell Street
Whittier, CA 90604
Phone: 562.777.9159
FAX: 562.946.1365
Email: ngebelt@goodbye2debt.com; ngebelt@gebeltlaw.com
Web: www.goodbye2debt.com
Blog: www.southerncaliforniabankruptcylawblog.com/
We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.
Confidentiality Note: This e-mail is intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential, or otherwise protected from disclosure. Dissemination, distribution, or copying of this e-mail or the information herein by anyone other than the intended recipient, or an employee or agent responsible for delivering the message to the intended recipient, is prohibited. If you have received this e-mail in error, please notify us immediately at 562.777.9159 or e-mail info@gebeltlaw.com and destroy the original message and all copies.
Representation Note: If you have not signed a contract of representation, the Law Offices of Nicholas Gebelt do not represent you, and this email does not contain any legal advice for you.
IRS Circular 230 Disclosure: In order to comply with the requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue code, or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
The post was migrated from Yahoo.
My client had a judgment entered against her on a debt 6 years ago by a collection agency and a disbarred attorney. While the debt is legitimate, they deliberately did not serve her with the summons etc and got a default judgment and now there is 6 years of interst at 24% which is 3 times the original debt. The practice of not serving defendant was apparently the disbarred lawyer's modus operandi for which he got disbarred. An abstract of judgment was recorded 6 years go. The client purchased a house a few months ago financing the house. The lender did not record the mortgage for 6 weeks. Two weeks ago, my client found out about the judgment and the abstract. The collection agency is claiming that they are in first position on the house because their lien has been in effect for 6 years, attached itself to my client's house immediately upon her taking title to the house and they are threatening to sell the house to pay themselves. This does not sound right to me because my understanding is that a purchase money loan is always in first position. The property has no equity outside the mortgage. My question is if I file a Chapter 7, can I avoid the lien.
The post was migrated from Yahoo.