.jpg)
avoiding a judgment lien
Dear Jim,
You're right. Thanks for catching the typo.
All the best,
Nick
Nicholas Gebelt, Ph.D., J.D.
Certified Bankruptcy Specialist
[cid:image001.jpg@01CCE72A.3472C040]
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.
You can object to a case going to the bap and it will go to the district court.
Sent from my iPhone
On Feb 8, 2012, at 7:07 PM, "Mark J. Markus" wrote:
> But wait a minute....What about In 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 http://bklaw.com/bankruptcy-blog/2008/0 ... efinition/)
> ________________________________________________
> NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written 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 in this communication.
>
> On 2/8/2012 6:18 PM, Nicholas Gebelt wrote:
>>
>> 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
>>
>>
>>
>> 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:
You can object to a case going to the bap and it will go to the district court. Sent from my iPhoneOn Feb 8, 2012, at 7:07 PM, "Mark J. Markus" <bklawr@yahoo.com> wrote:
But wait a minute....What about
In
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.
With apologies to my good friend Nick, the actual form number for a Motion to Avoid a Judicial Lien is F 4003-2.1.MOTION.RP.
Jim
James R. Selth
Certified Bankruptcy Specialist*
Weintraub & Selth, APC
11766 Wilshire Boulevard, Suite 1170
Los Angeles, California 90025
Telephone: (310) 207-1494
Facsimile: (310) 442-0660
E-Mail: jim@wsrlaw.net
*Certified by State Bar of California as Certified Legal Specialist in Bankruptcy Law
NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED RECIPIENT OF THE TRANSMISSION AND THIS COMMUNICATION IS INTENDED TO BE PRIVILEGED BY LAW. IF YOU RECEIVED THIS E-MAIL IN ERROR, ANY REVIEW, USE, DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED. PLEASE NOTIFY US IMMEDIATELY OF THE ERROR BY RETURN-E-MAIL AND PLEASE DELETE THIS MESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE FOR YOUR COOPERATION.
The post was migrated from Yahoo.
charset-ASCII;
formatowed;
delsps
One more thought about the Pederson/Farrey v. Sanderfoot issue; client
had to have an ownership interest for the abstract to attach. It
attached the instant the grant deed was recorded. It is the next
recorded trust deed that is screwed by the priority. So anyway, I
don't know the issue of whether you can avoid a senior judgment lien;
but the issue Markus raised doesn't seem to be a problem.
Jason
Jason Wallach
jwallach@gladstonemichel.com
On Feb 8, 2012, at 8:06 PM, Mark T. Jessee wrote:
> Furthermore if you are successful in setting the judgment aside for
> lack of personal jurisdiction, it has been over 5 years since the
> comlaint was filed and the case would need to be dismissed. The
> statute of limitations has run on it to so the obligation would then
> be legally unenforceable.
>
> Mark T. Jessee
> Law Offices of Mark T. Jessee
> "A Debt Relief Agency"
> 50 W. Hillcrest Drive, Suite 200
> Thousand Oaks, CA 91360
> (805) 497-5868 (805) 497-5864 (Facsimile)
>
>
>
>
> On Wed, 8 Feb 2012 20:02:24 -0800, "Patrick T. Green" > wrote:
> Stella:
>
> Your client should bring a motion in the Superior Court to set aside
> the jmt for lack of personal jurisdiction. If s/he did not know
> about this until recently, laches should not apply.
>
> Who is the owner of the debt?
>
> If you have any questions or concerns please contact me.
>
> Pat
>
> Patrick T. Green
> Attorney at Law
> 1010 E. Union St. Suite 206
> Pasadena, CA 91106
> Tel: 626-449-8433
> Fax: 626-449-0565
> Email: pat@fitzgreenlaw.com
>
>
>
>
>
> Behalf Of Stella
> Sent: Wednesday, February 08, 2012 5:40 PM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] avoiding a judgment lien
>
>
> 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.
charset-ASCII
One more thought about the Pederson/Farrey v. Sanderfoot issue; client had to have an ownership interest for the abstract to attach. It attached the instant the grant deed was recorded. It is the next recorded trust deed that is screwed by the priority. So anyway, I don't know the issue of whether you can avoid a senior judgment lien; but the issue Markus raised doesn't seem to be a problem.Jason Jason Wallach
The post was migrated from Yahoo.
charsetF-8;
format="flowed"
Furthermore if you are successful in setting the judgment aside for
lack of personal jurisdiction, it has been over 5 years since the
comlaint was filed and the case would need to be dismissed. The
statute of limitations has run on it to so the obligation would then be
legally unenforceable.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868 (805) 497-5864 (Facsimile)
On Wed, 8 Feb 2012 20:02:24 -0800, "Patrick T. Green"
wrote:
Stella:
Your client should bring a motion in the Superior Court to set aside
the jmt for lack of personal jurisdiction. If s/he did not know about
this until recently, laches should not apply.
Who is the owner of the debt?
If you have any questions or concerns please contact me.
Pat
Patrick T. Green
Attorney at Law
1010 E. Union St. Suite 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
Email: pat@fitzgreenlaw.com
Behalf Of Stella
Sent: Wednesday, February 08, 2012 5:40 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] avoiding a judgment lien
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.
start="4dvno0lqix6o@webmail.mysuperpageshosting.com"
charsetF-8
p{margin: 0;padding: 0;}Furthermore if you are successful in
setting the judgment aside for lack of personal jurisdiction, it has been over
5 years since the comlaint was filed and the case would need to be
dismissed. The statute of limitations has run on it to so the
obligation would then be legally unenforceable.
Mark T. JesseeLaw Offices of Mark T. Jessee"A Debt Relief
Agency"50 W. Hillcrest Drive, Suite 200Thousand Oaks, CA 91360(805)
497-5868 (805) 497-5864 (Facsimile)
On Wed, 8 Feb 2012 20:02:24 -0800, "Patrick T. Green"
<pat@fitzgreenlaw.com> wrote:
The post was migrated from Yahoo.
Stella:
Your client should bring a motion in the Superior Court to set aside the jmt
for lack of personal jurisdiction. If s/he did not know about this until
recently, laches should not apply.
Who is the owner of the debt?
If you have any questions or concerns please contact me.
Pat
Patrick T. Green
Attorney at Law
1010 E. Union St. Suite 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
Email: pat@fitzgreenlaw.com
The post was migrated from Yahoo.
I understand that, but the only reported decision in OUR district
follows the US Supreme Court ruling (tough to argue with that
precedent) in Farrey.
*************************
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 Mark,
BAP decisions set no precedent, so maybe things are up for grabs.
Nick
Nicholas Gebelt, Ph.D., J.D.
Certified Bankruptcy Specialist
[cid:image001.jpg@01CCE698.6432F3A0]
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.