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family law judgment/lien issue
This is an interesting one:
Debtor files Ch. 7 and gets his discharge. Debtor fails to schedule judgment in favor of ex-wife. Wife then, post discharge, records a lien against debtor. Trustee is selling real property debtor owns in the Ch. 7 case, but debtor apparently acquired an interest in another property post filing which he doesn't want this lien to cause problems with.
But wait, it gets better...
The family law judgment is somewhat ambiguous as to whether the amount owed is for alimony or just part of the property settlement.
The Ch. 7 trustee has objected to the claims filed by the debtor's former spouse, addressing the ambiguity issue, as well as claiming that they are late filed and some of the debt is post petition.
I have several questions:
1. If the Trustee prevails and the Judge finds that the amounts owed are in fact for property settlement and not alimony, can that be done at an objection to claim hearing and be binding?
2. Similarly, if the judge just sustains the objection (which it looks like will happen via default, since no response has been filed) what exactly does that mean for the debtor? Can he use that as evidence that the post discharge lien was recorded in violation of the post-discharge injunction under 524 (which recording would have otherwise been OK if for alimony or support)?
3. As I said, the debtor's main issue is the ongoing lien that was filed. Does he need to bring a 523 action to determine dischargeability of the debt in order to get rid of the lien because he failed to schedule his ex-wife's debt in the bankruptcy case and provide her notice? Or is it still incumbent on the ex-wife to bring a motion to late file a 523 claim to determine the dischargeability of the debt?
I guess what I'm asking is how does this usually play out when one spouse argues it's alimony and the other that it is purely property settlement? The ex-wife should still be able to litigate under 523(a)(15) since she had no timely notice to file said action by the required deadline. How heavy-handed can the debtor (read, me) be when demanding that the lien be released using 524 contempt of court as the underlying threat?
Sorry if this is convoluted. I haven't met with the debtor yet and just pieced together information from a brief phone conversation and looking at some docs online.
Happy New Year everyone!
***********************************************
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)
e-mail: bklawr@bklaw.com
web: http://www.bklaw.com/
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This is an interesting one:
Debtor files Ch. 7 and gets his discharge.
Debtor fails to schedule judgment in favor of ex-wife. Wife then,
post discharge, records a lien against debtor. Trustee is selling
real property debtor owns in the Ch. 7 case, but debtor apparently acquired an
interest in another property post filing which he doesn't want this lien tocause problems with.
But wait, it gets better...
The family law judgment is somewhat ambiguous as to
whether the amount owed is for alimony or just part of the property
settlement.
The Ch. 7 trustee has objected to the claims filed
by the debtor's former spouse, addressing the ambiguity issue, as well as
claiming that they are late filed and some of the debt is post petition.
I have several questions:
1. If the Trustee prevails and the Judge
finds that the amounts owed are in fact for property settlement and not alimony,
can that be done at an objection to claim hearing and be binding?
2. Similarly, if the judge just sustains
the objection (which it looks like will happen via default, since no response
has been filed) what exactly does that mean for the debtor? Can he use
that as evidence that the post discharge lien was recorded in violation of the
post-discharge injunction under 524 (which recording would have otherwise been
OK if for alimony or support)?
3. As I said, the debtor's main issue is the
ongoing lien that was filed. Does he need to bring a 523 action to
determine dischargeability of the debt in order to get rid of the lien because
he failed to schedule his ex-wife's debt in the bankruptcy case and provide her
notice? Or is it still incumbent on the ex-wife to bring a motion to late
file a 523 claim to determine the dischargeability of the debt?
I guess what I'm asking is how does this usually
play out when one spouse argues it's alimony and the other that it is purely
property settlement? The ex-wife should still be able to litigate under
523(a)(15) since she had no timely notice to file said action by the required
deadline. How heavy-handed can the debtor (read, me) be when demanding
that the lien be released using 524 contempt of court as the underlying
threat?
Sorry if this is convoluted. I haven't met
with the debtor yet and just pieced together information from a brief phoneconversation and looking at some docs online.
Happy New Year
everyone!***********************************************Mark J.MarkusLaw Office of Mark J. Markus11684 Ventura Blvd. PMB #403Studio
City, CA 91604-2652(818)509-1173(818)509-1460 (fax)e-mail: bklawr@bklaw.comweb:
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