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Unrecorded 3rd DOT
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Dear Mark,
I agree with your comment that the transfer will be a preference. It will probably also be a fraudulent transfer.
However, I dont see how the first in time is first in right concept has any bearing on a 522(f) avoidance action. There is no temporal language in that statutory provision, and in particular, in 522(f)(2), which defines exemption impairment. Why do you feel that chronology plays a role in the analysis? Is there case law adding recordation order as a factor in determining impairment?
All the best,
Nick
Nicholas Gebelt
Nicholas Gebelt, Ph.D., J.D.
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First in time, first in right! A judgment liens take precedence over later recorded Deed of Trust. The judgment liens do not impair the exemption, only a later recorded Third trust deed does presuming it was a valid recorded instrument. A third deed of trust filed on the eve of bk filing is almost certainly a preferential transfer even in the absence of shenanigans as it sounds like it was not a recent transaction and the son-in-law dawdled in recording it.
Mark T. JesseeLaw Offices of Mark T. Jessee50 W. Hillcrest Drive, Suite 200Thousand Oaks, CA 91360"We are A Debt Relief Agency"(805) 497-5868(805) 497-5864 Facsimile
In a message dated 3/14/2019 12:23:26 PM Pacific Standard Time, cdcbaa@yahoogroups.com writes:
PNC is 62 years old and approaches me with this scenario: House worth about $800K , 1st DOT is $450K and in default with a Notice of Default, 2nd DOT of $50K, and two recorded judgment liens of $50K and $15K. So there is some equity when you look at a title report.
As I explain that there might a situation where we can cure the judgment liens and the default in a Chapter 13, PNC tells me he also owes his son-in-law $250K and has signed a 3rd DOT to him, but it is not recorded.
If the 3rd DOT is recorded immediately and on the eve of BK, what are the chances of removing the judgment liens from their secured positions?
Desiree Causey, Esq.
Law Office of Desiree Causey
7755 Center Avenue, Suite 1100
Huntington Beach, CA 92647
714-372-2225 (phone)
714-908-7646 (same fax number)
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First in time, first in right! A judgment liens take precedence over later recorded Deed of Trust. The judgment liens do not impair the exemption, only a later recorded Third trust deed does presuming it was a valid recorded instrument. A third deed of trust filed on the eve of bk filing is almost certainly a preferential transfer even in the absence of shenanigans as it sounds like it was not a recent transaction and the son-in-law dawdled in recording it.
The post was migrated from Yahoo.
PNC is 62 years old and approaches me with this scenario: House worth about
$800K , 1st DOT is $450K and in default with a Notice of Default, 2nd DOT of
$50K, and two recorded judgment liens of $50K and $15K. So there is some
equity when you look at a title report.
As I explain that there might a situation where we can cure the judgment
liens and the default in a Chapter 13, PNC tells me he also owes his
son-in-law $250K and has signed a 3rd DOT to him, but it is not recorded.
If the 3rd DOT is recorded immediately and on the eve of BK, what are the
chances of removing the judgment liens from their secured positions?
Desiree Causey, Esq.
Law Office of Desiree Causey
7755 Center Avenue, Suite 1100
Huntington Beach, CA 92647
714-372-2225 (phone)
714-908-7646 (same fax number)
Privileged And Confidential Communication.
This electronic transmission, and any documents attached hereto, (a) are
protected by the Electronic Communications Privacy Act (18 USC
2510-2521), (b) may contain confidential and/or legally privileged
information, and (c) are for the sole use of the intended recipient named
above. If you have received this electronic message in error, please notify
the sender and delete the electronic message. Any disclosure, copying,
distribution, or use of the contents of the information received in error is
strictly prohibited.
Please consider the environment before printing this e-mail.
The post was migrated from Yahoo.