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Can I get relief from stay based upon CCP 708.110. lien?
charsetndows-1252
Steve:
Two answers.
1. If the bank levy was within the preference period, then I would doubt relief from stay would be granted. Either Trustee or Debtor if he has the right exemptions can recover the preference. Procedure involved. I don't know if 522f is applicable to a judicial lien, but some provision is.
2. The ORAP lien does attach to various personal property, but it would certainly be subject to bankruptcy exemptions, 703 or 704, and subject to avoidance same as the bank levy, and maybe additionally as a non purchase money, nonpossessory security interest in personal property.
So I would advise creditor not to spend that money just yet.
Jason
Jason Wallach
Gladstone Michel Weisberg Willner & Sloane, ALC
4551 Glencoe Avenue, Suite 300
Marina del Rey CA 90292
(310) 821-9000
www.gladstonemichel.com
jwallach@gladstonemichel.com
On Mar 26, 2013, at 6:11 PM, Steven B. Lever wrote:
Creditor question:
Debtor files bankruptcy on eve of judgment debtor exam. ORAP was of course served prior to then and that creates a lien as per the CCP code section quoted below.
There was also a bank levy done prepetition that captured at least $11,000 worth of assets.
We want that money of course. A claim of exemption was made before the bankruptcy case and in the bankruptcy case as well. I think the Debtors attorney is not really very savvy or sophisticated and will not try and put in a 522(f) motion to remove the lien.
So my question is----Can I do a Motion for Relief based upon the 708.110(d) lien and continue against the bank levy properties? Id like to get it lifted a bit broader, but that is probably what Ill go for. A Judge Kwan case if that matters.
CCP 708.110.
(d) The judgment creditor shall personally serve a copy of the
order on the judgment debtor not less than 10 days before the date
set for the examination. Service shall be made in the manner
specified in Section 415.10. Service of the order creates a lien on
the personal property of the judgment debtor for a period of one year
from the date of the order unless extended or sooner terminated by
the court.
Steve
Law Offices of Steven B. Lever
>
> Steven B. Lever
>( Tel. (562) 436-5456 ext. 1
>( Fax (562) 485-6886
>* sblever@leverlaw.com
> www.leverlaw.com
charsetndows-1252
Steve: Two answers.1. If the bank levy was within the preference period, then I would doubt relief from stay would be granted. Either Trustee or Debtor if he has the right exemptions can recover the preference. Procedure involved. I don't know if 522f is applicable to a judicial lien, but some provision is.2. The ORAP lien does attach to various personal property, but it would certainly be subject to bankruptcy exemptions, 703 or 704, and subject to avoidance same as the bank levy, and maybe additionally as a non purchase money, nonpossessory security interest in personal property. So I would advise creditor not to spend that money just yet.Jason
Jason WallachGladstone Michel Weisberg Willner & Sloane, ALC4551 Glencoe Avenue, Suite 300Marina del Rey CA 90292(310) 821-9000www.gladstonemichel.com
On Mar 26, 2013, at 6:11 PM, Steven B. Lever wrote:
Creditor question: Debtor files bankruptcy on eve of judgment debtor exam. ORAP was of course served prior to then and that creates a lien as per the CCP code section quoted below. There was also a bank levy done prepetition that captured at least $11,000 worth of assets. We want that money of course. A claim of exemption was made before the bankruptcy case and in the bankruptcy case as well. I think the Debtors attorney is not really very savvy or sophisticated and will not try and put in a 522(f) motion to remove the lien. So my question is----Can I do a Motion for Relief based upon the 708.110(d) lien and continue against the bank levy properties? Id like to get it lifted a bit broader, but that is probably what Ill go for. A Judge Kwan case if that matters. CCP 708.110. (d) The judgment creditor shall personally serve a copy of theorder on the judgment debtor not less than 10 days before the dateset for the examination. Service shall be made in the mannerspecified in Section 415.10. Service of the order creates a lien on
The post was migrated from Yahoo.
Creditor question:
Debtor files bankruptcy on eve of judgment debtor exam. ORAP was of
course served prior to then and that creates a lien as per the CCP code
section quoted below.
There was also a bank levy done prepetition that captured at least
$11,000 worth of assets.
We want that money of course. A claim of exemption was made before the
bankruptcy case and in the bankruptcy case as well. I think the
Debtor's attorney is not really very savvy or sophisticated and will not
try and put in a 522(f) motion to remove the lien.
So my question is----"Can I do a Motion for Relief based upon the
708.110(d) lien and continue against the bank levy properties?" I'd
like to get it lifted a bit broader, but that is probably what I'll go
for. A Judge Kwan case if that matters.
CCP 708.110.
(d) The judgment creditor shall personally serve a copy of the
order on the judgment debtor not less than 10 days before the date
set for the examination. Service shall be made in the manner
specified in Section 415.10. Service of the order creates a lien on
the personal property of the judgment debtor for a period of one year
from the date of the order unless extended or sooner terminated by
the court.
Steve
Law Offices of Steven B. Lever
>
> Steven B. Lever
>( Tel. (562) 436-5456 ext. 1
>( Fax (562) 485-6886
>* sblever@leverlaw.com
> www.leverlaw.com
The post was migrated from Yahoo.