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Avoiding lien created by abstract on property that doesn't
On 4/20/2011 2:56 PM, Silvio Nardoni wrote:
>
>
> Dennis and Mark are highly qualified and experienced bankruptcy
> attorneys,
*/Now THAT's the way to start a reply on here!/*
> but in my view their analysis is incorrect. The lien "attaches"
> at the time of filing the abstract.
/* Yes, but it only is attached to whatever the debtor owns on the
date the bankruptcy case is filed. If no real estate, what has it
attached to for which it needs to be removed?*/
> If done within 90 days of the petition, it is a preferential
> transfer. If more than 90 days, the lien remains in effect. Like
> any secured creditor, the abstract judgment creditor has whatever
> rights in the collateral it had before the bankruptcy was filed,
> since the Chapter 7 does not affect the lien per se. The debtor
> has no personal liability on the judgment, but the property to
> which the lien attached is still subject to the lien.
>
> I have filed and prosecuted 522 motions in just this scenario and
> thought that doing so was necessary to preserve the homestead
> exemption in favor of the debtor(s). If I was wrong, no judge ever
> told me that, and while having the client pay an extra fee for a
> 522 motion may be difficult for the client, think how difficult it
> will be if the lien is still "attached." Cheap insurance.
*/ Fine, but what assets are you avoiding the lien
against, and how does this honestly protect the debtor (as
"insurance") against a title company screwing up and claiming it has
attached to post-bankruptcy acquired real estate?
/*
> Silvio Nardoni
> Attorney at Law
> 535 N. Brand Blvd.
> Suite 501
> Glendale, CA 91203
> 818-550-1800
>
*************************
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.
I just read the "original" post. I take back everything I said. If debtor owns
no real property at time of filing, no need for 522 motion.
Mea culpa (that's Latin, which lawyers no longer use!).
Silvio Nardoni
Attorney at Law
535 N. Brand Blvd.
Suite 501
Glendale, CA 91203
818-550-1800
________________________________
To: cdcbaa@yahoogroups.com
Sent: Wed, April 20, 2011 9:23:55 AM
Subject: [cdcbaa] Avoiding lien created by abstract on property that doesn't
exist yet
A while back I recall there being a thread on here (or maybe it was in
another group) where certain people advocated doing a 522(f) motion in a
Chapter 7 case where there is an abstract of judgment recorded, but the
debtor(s) on the date of filing do not own any real estate. Ostensibly
the reason for this was to prevent any issues if and when the debtor(s)
later acquires property so there's no title issue on the lien attaching to
the post-bankruptcy acquired property.
I have this situation now and wanted to get a recap of the positions on
this and, if it is truly advisable to do so, how is it done? (i.e. how do
you avoid the lien on property that doesn't exist)?
*************************
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
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IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by
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used, and cannot be used, for the purpose of (i) avoiding penalties under
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I just read the "original" post. I take back everything I said. If debtor owns no real property at time of filing, no need for 522 motion.Mea culpa (that's Latin, which lawyers no longer use!). Silvio NardoniAttorney at Law535 N. Brand Blvd.Suite 501Glendale, CA 91203818-550-1800From: Mark J. Markus <bklawr@yahoo.com>To: cdcbaa@yahoogroups.comSent: Wed, April 20, 2011 9:23:55 AMSubject: [cdcbaa] Avoiding lien created by abstract on property that doesn't exist yet
The post was migrated from Yahoo.
Dennis and Mark are highly qualified and experienced bankruptcy attorneys, but
in my view their analysis is incorrect. The lien "attaches" at the time of
filing the abstract. If done within 90 days of the petition, it is a
preferential transfer. If more than 90 days, the lien remains in effect. Like
any secured creditor, the abstract judgment creditor has whatever rights in the
collateral it had before the bankruptcy was filed, since the Chapter 7 does not
affect the lien per se. The debtor has no personal liability on the judgment,
but the property to which the lien attached is still subject to the lien.
I have filed and prosecuted 522 motions in just this scenario and thought that
doing so was necessary to preserve the homestead exemption in favor of the
debtor(s). If I was wrong, no judge ever told me that, and while having the
client pay an extra fee for a 522 motion may be difficult for the client, think
how difficult it will be if the lien is still "attached." Cheap insurance.
Silvio Nardoni
Attorney at Law
535 N. Brand Blvd.
Suite 501
Glendale, CA 91203
818-550-1800
________________________________
To: cdcbaa@yahoogroups.com
Sent: Wed, April 20, 2011 2:41:14 PM
Subject: Re: [cdcbaa] Avoiding lien created by abstract on property that doesn't
exist yet
That's what I've always thought, but I could have sworn there were some
advocating that.
*************************
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 4/20/2011 2:12 PM, Dennis McGoldrick wrote:
>Once the debt for which the abstract has been filed is
>discharged, the lien cannot attach to anything.
>
>Such a 522 would be frivolous.
>
>d
>
>--- On Wed, 4/20/11, Mark J. Markus wrote:
>
>
>>Subject: [cdcbaa] Avoiding lien created by abstract on property
>>that doesn't exist yet
>>To: cdcbaa@yahoogroups.com
>>Date: Wednesday, April 20, 2011, 9:23 AM
>>
>>
>>
>>A while back I recall there being a thread on here (or
>>maybe it was in another group) where certain people
>>advocated doing a 522(f) motion in a Chapter 7 case
>>where there is an abstract of judgment recorded, but the
>>debtor(s) on the date of filing do not own any real
>>estate. Ostensibly the reason for this was to prevent
>>any issues if and when the debtor(s) later acquires
>>property so there's no title issue on the lien attaching
>>to the post-bankruptcy acquired property.
>>
>>I have this situation now and wanted to get a recap of
>>the positions on this and, if it is truly advisable to
>>do so, how is it done? (i.e. how do you avoid the lien
>>on property that doesn't exist)?
>>
>>
>>
>>
>>*************************
>>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.
That's what I've always thought, but I could have sworn there were
some advocating that.
*************************
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.