Has anyone ever heard of foreclosing on an ira?
Posted: Fri Mar 22, 2013 1:49 pm
The use of the term foreclosure makes no sense here. Foreclosure is a term
used for a non-judicial sale of real estate based on deed of trust in which
the debtor voluntarily not only granted a lien, but also agreed to allow the
creditor to sell the property through the trustee per the deed of trust. It
is a creature of statute. The "foreclosure" aspect is that a trustee's sale
forecloses the debtor's equitable right to redeem the property after the
sale.
The attorney's lien is nothing more than a non-possessory, non-purchase
money voluntary lien. Unless there was documents signed naming the attorney
as a beneficiary and a trustee to foreclose, the attorney has nothing to
hang his hat on. He has an unperfected lien which he needs to levy on.
I also think this type of lien is very vulnerable to attack. CRPC 3-300
applies. Of course the lien has to be in writing, but the client has to be
given a reasonable opportunity to seek advice of independent counsel. I
wonder how often that actually occurs. If I were doing one, I would want to
document my file to show that client was given time to think it over.
If you have any questions or concerns, please contact me.
Pat
Patrick T. Green
Attorney at Law
Fitzgerald & Green
1010 E. Union St. Ste. 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
pat@fitzgreenlaw.com
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