Central District Consumer Bankruptcy Attorney's Association

I think I can use In re Dyer, as pointed out by Jeff Smith, but it's a bit of a bluff.Creditor files abstract prior to bankruptcy: no discharge violation.Debtor gets discharge, creditor does nothing: no discharge violation.Debtor asks for creditor to affirmatively pick up pen and paper, fill out acknowledgment of satisfaction of judgment, hie himself to a notary to acknowledge the signature, and creditor balks: discharge violation? I don't think so; the creditor has an affirmative duty to remedy a discharge violation, but he has no affirmative duty to otherwise take action. Creditor has a duty not to take action to collect, but he's not doing that here.I think my remedy is in educating the title company, or getting a new one, or getting an order avoiding lien.- John D. Faucher818/889-8080

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I agree with Tilem and others that it is a discharge injuction issue and the creditor needs to be warned of the consequences of not filing a notice of release of the Abstract. You need to threaten contempt for violation of section 524. The following is from a brief I wrote some time ago. It has to do with the stay violation but there is case law that says the same for section 524 contempt, I am sure of it. An inadvertent violation of the injunction/stay can become willful:
[Offending creditor] "had an affirmative duty to remedy his automatic stay violation...such as by attempting to undo the recordation process." Knupfer v. Lindblade (In re Dyer), 322 F. 3d 1178, 1191-92 (9th Cir. 2003)
-Jeffrey B. Smith**
CURD, GALINDO & SMITH, L.L.P.
301 East Ocean Blvd. #1700
Long Beach, CA 90802
(562) 624-1177
(562) 624-1178 fax
(310) 993-6560 cellular
www.expertbk.com
**Certified By The State Bar
Of California As A Specialist
In Bankruptcy Law
I agree with Tilem and others that it is a discharge injuction issue and the creditor needs to be warned of the consequences of not filing a notice of release of the Abstract. You need to threaten contempt for violation of section 524.
The following is from a brief I wrote some time ago. It has to do with the stay violation but there is case law that says the same for section 524 contempt, I am sure of it. An inadvertent violation of the injunction/stay can become willful:

[Offending creditor
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I often have my clients file an official copy of their discharge with the county recorders office.
Christie Cronenweth
Law Offices of Christie Cronenweth
25202 Crenshaw Blvd., Suite 207
Torrance, CA 90505
310-257-4995 ph
310-257-4996 fx
cronenwethlaw@yahoo.com
www.cronenwethlaw.com
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> On Oct 13, 2017, at 4:20 PM, 'Peter M. Lively' petermlively2000@yahoo.com [cdcbaa] wrote:
>
> 524(a) A discharge in a case under this title
> (1) "voids any judgment..."
>
> The lien can't attach because the judgment is void as of the discharge date. If there is an escrow pending, send a letter with the discharge order and quote 524(a)(1). The title underwriter should accept it without requiring anything from the former judgment creditor.
>
> Peter M. Lively, J.D., M.B.A.
> Law Office of Peter M. Lively * Personal Financial Law Center I
> 11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
> Telephone: (310) 391-2400 * Toll Free: (800) 307-3328 * Fax: (310) 391-2462
>
>
> On Friday, October 13 wrote:
>
>
>
> Discharge violation demand that creditor take corrective action. Sue in Bk Court for breach of Discharge Injunction.
>
>
>
> David A. Tilem
>
> Certified Bankruptcy Specialist Since 1997
>
> Law Offices of David A. Tilem
>
> 206 N. Jackson St., #201
>
> Glendale, CA 91206
>
> Tel: 818-507-6000 * Fax: 818-507-6800
>
> Toll Free: 888-BK PRO 4U (888-257-7648)
>
> www.TilemLaw.com
>
>
>
>
>
>
>
>
>
>
>
>
>
> The pages comprising this transmission may contain CONFIDENTIAL INFORMATION from Law Offices of David A. Tilem. This information is intended solely for use by the individual or entity named as the recipient hereof. If you are not the intended recipient, be aware that any disclosure, copying, distribution, or use of the contents of this transmission is prohibited. If you have received this transmission in error, please notify us by telephone immediately so we may arrange and correct this transmission.
>
>
>
> Sent: Friday, October 13, 2017 3:51 PM
> To: Cdcbaa Yahoo Listserv
> Subject: [cdcbaa] Avoiding a lien that isn't a lien
>
>
>
>
>
> Hello dear listers:
>
> Client had an abstract of judgment recorded against her in 2011, when she owned no real property. She filed a chapter 7 bankruptcy and got her discharge in 2016. This year, her husband granted her a half-interest, jointly, in his house. Abstract creditor has so far refused to release the abstract, and client can't refinance because of it.
>
> How do I move forward? It's not a statutory lien, nor a lien impairing an exemption (actually, it may be, but that seems beside the point here, because it's a lien that doesn't even exist). It's not avoidable under 547, because not preferential. Under In re Thomas, 102 BR 199, it looks like I need to file a motion to expunge the abstract. Is a motion to expunge still the proper procedure?
>
> - John D. Faucher
>
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The post was migrated from Yahoo.

524(a) A discharge in a case under this title (1)"voids any judgment..."
The lien can't attach because the judgment is void as of the discharge date. If there is an escrow pending, send a letter with the discharge order and quote 524(a)(1). The title underwriter should accept it without requiring anything from the former judgment creditor.
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
On Friday, October 13aa] wrote:
Discharge violation demand that creditor take corrective action.
David A. Tilem
Certified Bankruptcy Specialist Since 1997
Law Offices of David A. Tilem
206 N. Jackson St., #201
Glendale, CA 91206
Tel: 818-507-6000 * Fax: 818-507-6800
Toll Free: 888-BK PRO 4U (888-257-7648)
www.TilemLaw.com




The pages comprising this transmission may contain CONFIDENTIAL INFORMATION from Law Offices of David A. Tilem. This information is intended solely for use by the individual or entity named as the recipient hereof. If you are not the intended recipient, be aware that any disclosure, copying, distribution, or use of the contents of this transmission is prohibited. If you have received this transmission in error, please notify us by telephone immediately so we may arrange and correct this transmission.

Sent: Friday, October 13, 2017 3:51 PM
To: Cdcbaa Yahoo Listserv
Subject: [cdcbaa] Avoiding a lien that isn't a lien

Hello dear listers:
Client had an abstract of judgment recorded against her in 2011, when she owned no real property. She filed a chapter 7 bankruptcy and got her discharge in 2016. This year, her husband granted her a half-interest, jointly, in his house. Abstract creditor has so far refused to release the abstract, and client can't refinance because of it.
How do I move forward? It's not a statutory lien, nor a lien impairing an exemption (actually, it may be, but that seems beside the point here, because it's a lien that doesn't even exist). It's not avoidable under 547, because not preferential. Under In re Thomas, 102 BR 199, it looks like I need to file a motion to expunge the abstract. Is a motion to expunge still the proper procedure?
- John D. Faucher

The post was migrated from Yahoo.

Hello dear listers:Client had an abstract of judgment recorded against her in 2011, when she owned no real property. She filed a chapter 7 bankruptcy and got her discharge in 2016. This year, her husband granted her a half-interest, jointly, in his house. Abstract creditor has so far refused to release the abstract, and client can't refinance because of it.How do I move forward? It's not a statutory lien, nor a lien impairing an exemption (actually, it may be, but that seems beside the point here, because it's a lien that doesn't even exist). It's not avoidable under 547, because not preferential. Under In re Thomas, 102 BR 199, it looks like I need to file a motion to expunge the abstract. Is a motion to expunge still the proper procedure?- John D. Faucher

The post was migrated from Yahoo.