.jpg)
Avoiding lien on wage garnishment funds held by Sheriff
charset="UTF-8"
Michael:
I think that it is not a judicial lien, but a statutory lien. But a close look at 101(53) is in order, as it may be arguable that it is not a stat lien.
If you have any questions or concerns, please contact me.
Pat
Patrick T. Green
Attorney at Law
Fitzgerald & Green, Attorneys at Law
1010 E. Union St. Suite 206
Pasadena, CA 91106
Tel: (626) 449-8433
Fax: (626) 449-0565
pat@fitzgreenlaw.com
The post was migrated from Yahoo.
Any of you have any success with a good old fashioned 522(f) motion?
Sincerely,
*Michael Avanesian, Esq. *AVANESIAN LAW FIRM
101 N. Brand Blvd., PH 1920
Glendale, California 91203
Tel: 818.276.2477 Fax: 818.208.4550
On Wed, Jan 28, 2015 at 4:41 PM, Nicholas Gebelt ngebelt@gebeltlaw.com
[cdcbaa] wrote:
>
> [Attachment(s) from Nicholas Gebelt included
> below]
>
> Dear Jim,
>
>
>
> Bob Kwan will let you avoid the prepetition preference by motion. I have
> attached a Word version of such I motion I successfully used a couple of
> years ago. In the same case Judge Kwan asked for a statement of damages
> against the Sheriff and the collector, one Mark Walsh. I have also
> attached a Word version of that statement of damages. Both the Sheriff and
> Mark Walsh paid.
>
>
>
> Unfortunately, some judges *e.g.*, Zurzolo require an adversary
> proceeding because of Fed. R. Bank. Proc. 7001(1), so there has to be
> enough at stake to warrant the action.
>
>
>
> If any postpetition garnishing takes place, send a letter demanding
> immediate return of the money. If the Sheriff doesnt return the money
> right away, file an OSC re: contempt. If you do a PACER search on the case
> in which I filed the attached documents, youll also find a successful OSC
> motion against the Sheriff.
>
>
>
> Let me know how things pan out.
>
>
>
> All the best,
>
>
>
> Nick
>
>
>
> *Nicholas Gebelt*
>
>
>
> Nicholas Gebelt, Ph.D., J.D.
>
> Attorney at Law
>
> Certified Bankruptcy Law Specialist
>
>
>
> [image: Description: Description: Description:
> cid:image003.jpg@01CC076B.B14D73C0]
>
>
>
> Law Offices of Nicholas Gebelt
>
> 15150 Hornell Street
>
> Whittier, CA 90604
>
> Phone: 562.777.9159
>
> FAX: 562.946.1365
>
> Email: ngebelt@goodbye2debt.com; ngebelt@gebeltlaw.com
>
> Web: www.goodbye2debt.com
>
> Blog: www.southerncaliforniabankruptcylawblog.com/
>
>
>
> *Important notice required by 11 U.S.C. 528:* We are a debt relief
> agency. We help people file for bankruptcy relief under the Bankruptcy Code.
>
>
>
> *Confidentiality Note*: This e-mail is intended only for the person or
> entity to which it is addressed and may contain information that is
> privileged, confidential, or otherwise protected from disclosure.
> Dissemination, distribution, or copying of this e-mail or the information
> herein by anyone other than the intended recipient, or an employee or agent
> responsible for delivering the message to the intended recipient, is
> prohibited. If you have received this e-mail in error, please notify us
> immediately at 562.777.9159 or e-mail info@gebeltlaw.com and destroy the
> original message and all copies.
>
>
>
> *Representation Note*: If you have not signed a contract of
> representation, the Law Offices of Nicholas Gebelt do not represent you,
> and this email does not contain any legal advice for you.
>
>
>
> *IRS Circular 230 Disclosure: *In order to comply with the requirements
> imposed by the Internal Revenue Service, we inform you that any U.S. tax
> advice contained in this communication (including any attachments) is not
> intended 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 herein.
>
>
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
> *Sent:* Wednesday, January 28, 2015 3:53 PM
> *To:* Cdcbaa Yahoo Listserv
> *Subject:* RE: [cdcbaa] Avoiding lien on wage garnishment funds held by
> Sheriff
>
>
>
>
>
> If the garnishment occurred during the preference period, file a complaint
> to recover the preference from the creditor and the sheriff.
> Make sure to list the funds on the clients amended Schedule B and exempt
> them on an amended Schedule C.
>
> On Jan 28, 2015 12:30 PM, "Jim Selth jim@wsrlaw.net [cdcbaa]" cdcbaa@yahoogroups.com> wrote:
>
>
>
> I remember I had seen postings on this topic, and searching the word
> Sheriff brought up the posting from Michael Avanesian below. I have just
> filed a Chapter 7 for a client whose wages were being garnished by the LA
> County Sheriff, and now the client has received the standard Notice of
> Bankruptcy Procedures form the LA County Sheriff always sends out that says
> that the funds being held will be turned over to the Trustee upon request,
> or to the Debtor if the Sheriff receives an Order Avoiding Lien or other
> Court Order directing turnover, or to the Judgment Creditor at the end of
> the case if the Trustee doesnt ask for the money and there is no Order
> Avoiding Lien or other Court Order directing turnover to the Debtor.
>
>
>
> My question: Has anyone filed one of these Motions to Avoid Lien on
> monies held by a Sheriff, who can point me to a case on PACER? Is the LBR
> Form 4003-2.2.AVOID.LIEN.PP.MOTION the correct form? It refers to a
> nonjudicial lien, and seems to be designed only for avoiding a security
> interest on an appliance or furniture. CCP 706.029 is a statutory lien,
> but is it a nonjudicial lien? By the way, that LBR Form
> 4003-2.2.AVOID.LIEN.PP.MOTION has several apparent typos in referring to
> real property and homestead when the form is designed for avoiding a
> lien on personal property.
>
>
>
> Jim
>
>
>
> James R. Selth
> Certified Bankruptcy Specialist*
> Weintraub & Selth, APC
> 11766 Wilshire Boulevard, Suite 1170
> Los Angeles, California 90025
> Telephone: (310) 207-1494
> Facsimile: (310) 442-0660
> E-Mail: jim@wsrlaw.net
>
> *Certified by State Bar of California as Certified Legal Specialist in
> Bankruptcy Law
>
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
> *Sent:* Friday, September 19, 2014 9:23 PM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* Re: [cdcbaa] Preference action before RN
>
>
>
> I agree with Steven that 706.029 gives the creditor a lien and a defense
> against preferences. If the sheriff has funds he's holding, the lien can be
> avoided with respect to those funds under 522(f), and the sheriff should
> release the funds to your client at that point. As an alternative to filing
> these papers, you could ask the creditor to release the lien. Asking works
> sometimes!!
>
>
>
> I also agree with Larry that an adversary would have to be brought if a
> preference action is to be made. If the wage garnishment began during the
> preference period, then the lien can be avoided, and any money during the
> preference period should then be turned over to the debtor/trustee if not
> exempted.
>
>
>
> I disagree though with Steven that a debtor can file a motion for turnover
> to the extent that motion is based on 542. It is my understanding that this
> section is exclusively for the use of a trustee/dip.
>
>
> Sincerely,
>
> Michael Avanesian
>
>
>
> On Fri, Sep 19, 2014 at 12:46 PM, 'Steven B. Lever' sblever@leverlaw.com
> [cdcbaa] wrote:
>
> Does the Debtor have standing to do that? I thought we needed to do a
> 522(f) and Motion for Turnover. Remember the creditor has a lien on those
> funds that has to be avoided.
>
> Steven B. Lever
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
> *Sent:* Friday, September 19, 2014 12:14 PM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* [cdcbaa] Preference action before RN
>
> I am considering filing a preference action to recover 3 months of wage
> garnishments for the Debtor (assuming trustee abandons the asset or does
> not object to the claimed exemption). Does anyone know if RN will allow
> such an action to be done by motion?
>
>
> ------------------------------
>
>
>
Any of you have any success with a good old fashioned 522(f) motion?Sincerely,Michael Avanesian, Esq.erif">AVANESIAN
LAW FIRM101
N. Brand Blvd., PH 1920Glendale,
California 91203Tel:
818.276.2477 Fax: 818.208.4550
On Wed, Jan 28, 2015 at 4:41 PM, Nicholas Gebelt ngebelt@gebeltlaw.com [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
[Attachment(s) from Nicholas Gebelt included below]
Dear Jim,
Bob Kwan will let you avoid the prepetition preference by motion. I have attached a Word version of such I motion I successfully used a couple of years ago.
In the same case Judge Kwan asked for a statement of damages against the Sheriff and the collector, one Mark Walsh. I have also attached a Word version of that statement of damages. Both the Sheriff and Mark Walsh paid.
Unfortunately, some judges
e.g., Zurzolo require an adversary proceeding because of Fed. R. Bank. Proc. 7001(1), so there has to be enough at stake to warrant the action.
If any postpetition garnishing takes place, send a letter demanding immediate return of the money. If the Sheriff doesnt return the money right away, file
an OSC re: contempt. If you do a PACER search on the case in which I filed the attached documents, youll also find a successful OSC motion against the Sheriff.
Let me know how things pan out.
All the best,
Nick
Nicholas Gebelt
an>
Nicholas Gebelt, Ph.D., J.D.
Attorney at Law
Certified Bankruptcy Law Specialist
an>
Law Offices of Nicholas Gebelt
15150 Hornell Street
Whittier, CA 90604
Phone: 562.777.9159
FAX:et"_blank">562.946.1365
Email:
ngebelt@goodbye2debt.com;
ngebelt@gebeltlaw.com
Web:www.goodbye2debt.com
Blog:www.southerncaliforniabankruptcylawblog.com/
an>
Important notice required by 11 U.S.C. 528:
We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.
Confidentiality Note: entity to which it is addressed and may contain information that is privileged, confidential, or otherwise protected from disclosure. Dissemination, distribution, or copying of this e-mail or the information herein by anyone other than the intended recipient,
or an employee or agent responsible for delivering the message to the intended recipient, is prohibited. If you have received this e-mail in error, please notify us immediately at 562.777.9159 or e-mail
info@gebeltlaw.com and destroy the original message and all copies.
Representation Note: the Law Offices of Nicholas Gebelt do not represent you, and this email does not contain any legal advice for you.
IRS Circular 230 Disclosure:
In order to comply with the requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments)
is not intended 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 herein.
From: cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
Sent: Wednesday, January 28, 2015 3:53 PM
To: Cdcbaa Yahoo Listserv
Subject: RE: [cdcbaa] Avoiding lien on wage garnishment funds held by Sheriff
If the garnishment occurred during the preference period, file a complaint to recover the preference from the creditor and the sheriff.
Make sure to list the funds on the clients amended Schedule B and exempt them on an amended Schedule C.
On Jan 28, 2015 12:30 PM, "Jim Selth
jim@wsrlaw.net [cdcbaa]" <cdcbaa@yahoogroups.com> wrote:
I remember I had seen postings on this topic, and searching the word Sheriff brought up the posting from Michael Avanesian below. I have just filed a Chapter 7 for a client whose
wages were being garnished by the LA County Sheriff, and now the client has received the standard Notice of Bankruptcy Procedures form the LA County Sheriff always sends out that says that the funds being held will be turned over to the Trustee upon request,
or to the Debtor if the Sheriff receives an Order Avoiding Lien or other Court Order directing turnover, or to the Judgment Creditor at the end of the case if the Trustee doesnt ask for the money and there is no Order Avoiding Lien or other Court Order directing
turnover to the Debtor.
My question: Has anyone filed one of these Motions to Avoid Lien on monies held by a Sheriff, who can point me to a case on PACER? Is the LBR Form 4003-2.2.AVOID.LIEN.PP.MOTION
the correct form? It refers to a nonjudicial lien, and seems to be designed only for avoiding a security interest on an appliance or furniture. By the way, that LBR Form 4003-2.2.AVOID.LIEN.PP.MOTION
has several apparent typos in referring to real property and homestead when the form is designed for avoiding a lien on personal property.
Jim
James R. Selth
Certified Bankruptcy Specialist*
Weintraub & Selth, APC
11766 Wilshire Boulevard, Suite 1170
Los Angeles, California 90025
Telephone: (310) 207-1494
Facsimile: (310) 442-0660
E-Mail: jim@wsrlaw.net
*Certified by State Bar of California as Certified Legal Specialist in Bankruptcy Law
From:
cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
Sent: Friday, September 19, 2014 9:23 PM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] Preference action before RN
I agree with Steven that 706.029 gives the creditor a lien and a defense against preferences. If the sheriff has funds he's holding, the lien can be avoided with respect to those funds under 522(f), and the sheriff should release the funds to your client at
that point. As an alternative to filing these papers, you could ask the creditor to release the lien. Asking works sometimes!!
I also agree with Larry that an adversary would have to be brought if a preference action is to be made. If the wage garnishment began during the preference period, then the lien can be avoided, and any money during the preference period should then be turned
over to the debtor/trustee if not exempted.
I disagree though with Steven that a debtor can file a motion for turnover to the extent that motion is based on 542. It is my understanding that this section is exclusively for the use of a trustee/dip.
Sincerely,
Michael Avanesian
The post was migrated from Yahoo.
If the garnishment occurred during the preference period, file a complaint
to recover the preference from the creditor and the sheriff.
Make sure to list the funds on the clients amended Schedule B and exempt
them on an amended Schedule C.
On Jan 28, 2015 12:30 PM, "Jim Selth jim@wsrlaw.net [cdcbaa]" wrote:
>
>
> I remember I had seen postings on this topic, and searching the word
> Sheriff brought up the posting from Michael Avanesian below. I have just
> filed a Chapter 7 for a client whose wages were being garnished by the LA
> County Sheriff, and now the client has received the standard Notice of
> Bankruptcy Procedures form the LA County Sheriff always sends out that says
> that the funds being held will be turned over to the Trustee upon request,
> or to the Debtor if the Sheriff receives an Order Avoiding Lien or other
> Court Order directing turnover, or to the Judgment Creditor at the end of
> the case if the Trustee doesnt ask for the money and there is no Order
> Avoiding Lien or other Court Order directing turnover to the Debtor.
>
>
>
> My question: Has anyone filed one of these Motions to Avoid Lien on
> monies held by a Sheriff, who can point me to a case on PACER? Is the LBR
> Form 4003-2.2.AVOID.LIEN.PP.MOTION the correct form? It refers to a
> nonjudicial lien, and seems to be designed only for avoiding a security
> interest on an appliance or furniture. CCP 706.029 is a statutory lien,
> but is it a nonjudicial lien? By the way, that LBR Form
> 4003-2.2.AVOID.LIEN.PP.MOTION has several apparent typos in referring to
> real property and homestead when the form is designed for avoiding a
> lien on personal property.
>
>
>
> Jim
>
>
>
> James R. Selth
> Certified Bankruptcy Specialist*
> Weintraub & Selth, APC
> 11766 Wilshire Boulevard, Suite 1170
> Los Angeles, California 90025
> Telephone: (310) 207-1494
> Facsimile: (310) 442-0660
> E-Mail: jim@wsrlaw.net
>
> *Certified by State Bar of California as Certified Legal Specialist in
> Bankruptcy Law
>
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
> *Sent:* Friday, September 19, 2014 9:23 PM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* Re: [cdcbaa] Preference action before RN
>
>
>
> I agree with Steven that 706.029 gives the creditor a lien and a defense
> against preferences. If the sheriff has funds he's holding, the lien can be
> avoided with respect to those funds under 522(f), and the sheriff should
> release the funds to your client at that point. As an alternative to filing
> these papers, you could ask the creditor to release the lien. Asking works
> sometimes!!
>
>
>
> I also agree with Larry that an adversary would have to be brought if a
> preference action is to be made. If the wage garnishment began during the
> preference period, then the lien can be avoided, and any money during the
> preference period should then be turned over to the debtor/trustee if not
> exempted.
>
>
>
> I disagree though with Steven that a debtor can file a motion for turnover
> to the extent that motion is based on 542. It is my understanding that this
> section is exclusively for the use of a trustee/dip.
>
>
> Sincerely,
>
> Michael Avanesian
>
>
>
> On Fri, Sep 19, 2014 at 12:46 PM, 'Steven B. Lever' sblever@leverlaw.com
> [cdcbaa] wrote:
>
> Does the Debtor have standing to do that? I thought we needed to do a
> 522(f) and Motion for Turnover. Remember the creditor has a lien on those
> funds that has to be avoided.
>
> Steven B. Lever
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
> *Sent:* Friday, September 19, 2014 12:14 PM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* [cdcbaa] Preference action before RN
>
> I am considering filing a preference action to recover 3 months of wage
> garnishments for the Debtor (assuming trustee abandons the asset or does
> not object to the claimed exemption). Does anyone know if RN will allow
> such an action to be done by motion?
>
>
>
> ------------------------------
>
>
If the garnishment occurred during the preference period, file a complaint to recover the preference from the creditor and the sheriff.Make sure to list the funds on the clients amended Schedule B and exempt them on an amended Schedule C.
On Jan 28, 2015 12:30 PM, "Jim Selth jim@wsrlaw.net [cdcbaa]" <
I remember I had seen postings on this topic, and searching the word Sheriff brought up the posting from Michael Avanesian below. I have just filed a Chapter
7 for a client whose wages were being garnished by the LA County Sheriff, and now the client has received the standard Notice of Bankruptcy Procedures form the LA County Sheriff always sends out that says that the funds being held will be turned over to the
Trustee upon request, or to the Debtor if the Sheriff receives an Order Avoiding Lien or other Court Order directing turnover, or to the Judgment Creditor at the end of the case if the Trustee doesnt ask for the money and there is no Order Avoiding Lien or
other Court Order directing turnover to the Debtor.
The post was migrated from Yahoo.
Reply-To: Sloan Youkstetter
X-Original-Return-Path: Sloan Youkstetter
To: cdcbaa@yahoogroups.com
X-Yahoo-Newman-Id: groups-system
I wrote the motion for a pro per litigant at the Bankruptcy Self-Help Desk on Monday. The sheriff garnished her wages within 90 days of filing. Try 14-27645. I used LBR Form 4003-2.2.AVOID.LIEN.PP.MOTION and I believe it is the correct form. Granted it is a confusing form, but you should adapt it to fit your needs. I just skipped Sections 5 and 6 because they are not relevant to the case, which avoids the homestead and nonjudicial lien portions. You should explain what the Sheriff is withholding in the declaration (which is required) and attach the appropriate documents (which is stated in Section 9). You will need Schedule C to show that monies were exempted (or amend it) Though, whether it will get granted is another issue....
Hope that helps!
Sloan
> On Jan 28, 2015, at 12:29 PM, "Jim Selth jim@wsrlaw.net [cdcbaa]" wrote:
>
> I remember I had seen postings on this topic, and searching the word Sheriff I have just filed a Chapter 7 for a client whose wages were being garnished by the LA County Sheriff, and now the client has received the standard Notice of Bankruptcy Procedures form the LA County Sheriff always sends out that says that the funds being held will be turned over to the Trustee upon request, or to the Debtor if the Sheriff receives an Order Avoiding Lien or other Court Order directing turnover, or to the Judgment Creditor at the end of the case if the Trustee doesnt ask for the money and there is no Order Avoiding Lien or other Court Order directing turnover to the Debtor.
>
>
>
> My question: Has anyone filed one of these Motions to Avoid Lien on monies held by a Sheriff, who can point me to a case on PACER? Is the LBR Form 4003-2.2.AVOID.LIEN.PP.MOTION the correct form? It refers to a nonjudicial lien, and seems to be designed only for avoiding a security interest on an appliance or furniture. CCP 706.029 is a statutory lien, but is it a nonjudicial lien? By the way, that LBR Form 4003-2.2.AVOID.LIEN.PP.MOTION has several apparent typos in referring to lien on personal property.
>
>
>
> Jim
>
>
>
> James R. Selth
> Certified Bankruptcy Specialist*
> Weintraub & Selth, APC
> 11766 Wilshire Boulevard, Suite 1170
> Los Angeles, California 90025
> Telephone: (310) 207-1494
> Facsimile: (310) 442-0660
> E-Mail: jim@wsrlaw.net
>
> *Certified by State Bar of California as Certified Legal Specialist in Bankruptcy Law
>
>
>
@yahoogroups.com]
> Sent: Friday, September 19, 2014 9:23 PM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Preference action before RN
>
>
>
> I agree with Steven that 706.029 gives the creditor a lien and a defense against preferences. If the sheriff has funds he's holding, the lien can be avoided with respect to those funds under 522(f), and the sheriff should release the funds to your client at that point. As an alternative to filing these papers, you could ask the creditor to release the lien. Asking works sometimes!!
>
>
>
> I also agree with Larry that an adversary would have to be brought if a preference action is to be made. If the wage garnishment began during the preference period, then the lien can be avoided, and any money during the preference period should then be turned over to the debtor/trustee if not exempted.
>
>
>
> I disagree though with Steven that a debtor can file a motion for turnover to the extent that motion is based on 542. It is my understanding that this section is exclusively for the use of a trustee/dip.
>
>
> Sincerely,
>
> Michael Avanesian
>
>
>
> On Fri, Sep 19, 2014 at 12:46 PM, 'Steven B. Lever' sblever@leverlaw.com [cdcbaa] wrote:
>
> Does the Debtor have standing to do that? I thought we needed to do a 522(f) and Motion for Turnover. Remember the creditor has a lien on those funds that has to be avoided.
>
> Steven B. Lever
>
s.com]
> Sent: Friday, September 19, 2014 12:14 PM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Preference action before RN
>
> I am considering filing a preference action to recover 3 months of wage garnishments for the Debtor (assuming trustee abandons the asset or does not object to the claimed exemption). Does anyone know if RN will allow such an action to be done by motion?
>
>
>
>
>
> Posted by: Jim Selth
> Reply via web post Reply to sender Reply to group > VISIT YOUR GROUP New Members 1
My question: Has anyone filed one of these Motions to Avoid Lien on monies held by a Sheriff, who can point me to a case on PACER? Is the LBR Form 4003-2.2.AVOID.LIEN.PP.MOTION
the correct form? It refers to a nonjudicial lien, and seems to be designed only for avoiding a security interest on an appliance or furniture. CCP 706.029 is a statutory lien, but is it a nonjudicial lien? By the way, that LBR Form 4003-2.2.AVOID.LIEN.PP.MOTION
has several apparent typos in referring to lien on personal property.
The post was migrated from Yahoo.
X-Original-Return-Path: Sloan Youkstetter
To: cdcbaa@yahoogroups.com
X-Yahoo-Newman-Id: groups-system
I wrote the motion for a pro per litigant at the Bankruptcy Self-Help Desk on Monday. The sheriff garnished her wages within 90 days of filing. Try 14-27645. I used LBR Form 4003-2.2.AVOID.LIEN.PP.MOTION and I believe it is the correct form. Granted it is a confusing form, but you should adapt it to fit your needs. I just skipped Sections 5 and 6 because they are not relevant to the case, which avoids the homestead and nonjudicial lien portions. You should explain what the Sheriff is withholding in the declaration (which is required) and attach the appropriate documents (which is stated in Section 9). You will need Schedule C to show that monies were exempted (or amend it) Though, whether it will get granted is another issue....
Hope that helps!
Sloan
> On Jan 28, 2015, at 12:29 PM, "Jim Selth jim@wsrlaw.net [cdcbaa]" wrote:
>
> I remember I had seen postings on this topic, and searching the word Sheriff I have just filed a Chapter 7 for a client whose wages were being garnished by the LA County Sheriff, and now the client has received the standard Notice of Bankruptcy Procedures form the LA County Sheriff always sends out that says that the funds being held will be turned over to the Trustee upon request, or to the Debtor if the Sheriff receives an Order Avoiding Lien or other Court Order directing turnover, or to the Judgment Creditor at the end of the case if the Trustee doesnt ask for the money and there is no Order Avoiding Lien or other Court Order directing turnover to the Debtor.
>
>
>
> My question: Has anyone filed one of these Motions to Avoid Lien on monies held by a Sheriff, who can point me to a case on PACER? Is the LBR Form 4003-2.2.AVOID.LIEN.PP.MOTION the correct form? It refers to a nonjudicial lien, and seems to be designed only for avoiding a security interest on an appliance or furniture. CCP 706.029 is a statutory lien, but is it a nonjudicial lien? By the way, that LBR Form 4003-2.2.AVOID.LIEN.PP.MOTION has several apparent typos in referring to lien on personal property.
>
>
>
> Jim
>
>
>
> James R. Selth
> Certified Bankruptcy Specialist*
> Weintraub & Selth, APC
> 11766 Wilshire Boulevard, Suite 1170
> Los Angeles, California 90025
> Telephone: (310) 207-1494
> Facsimile: (310) 442-0660
> E-Mail: jim@wsrlaw.net
>
> *Certified by State Bar of California as Certified Legal Specialist in Bankruptcy Law
>
>
>
@yahoogroups.com]
> Sent: Friday, September 19, 2014 9:23 PM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Preference action before RN
>
>
>
> I agree with Steven that 706.029 gives the creditor a lien and a defense against preferences. If the sheriff has funds he's holding, the lien can be avoided with respect to those funds under 522(f), and the sheriff should release the funds to your client at that point. As an alternative to filing these papers, you could ask the creditor to release the lien. Asking works sometimes!!
>
>
>
> I also agree with Larry that an adversary would have to be brought if a preference action is to be made. If the wage garnishment began during the preference period, then the lien can be avoided, and any money during the preference period should then be turned over to the debtor/trustee if not exempted.
>
>
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> I disagree though with Steven that a debtor can file a motion for turnover to the extent that motion is based on 542. It is my understanding that this section is exclusively for the use of a trustee/dip.
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> Sincerely,
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> Michael Avanesian
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> On Fri, Sep 19, 2014 at 12:46 PM, 'Steven B. Lever' sblever@leverlaw.com [cdcbaa] wrote:
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> Does the Debtor have standing to do that? I thought we needed to do a 522(f) and Motion for Turnover. Remember the creditor has a lien on those funds that has to be avoided.
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> Steven B. Lever
>
s.com]
> Sent: Friday, September 19, 2014 12:14 PM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Preference action before RN
>
> I am considering filing a preference action to recover 3 months of wage garnishments for the Debtor (assuming trustee abandons the asset or does not object to the claimed exemption). Does anyone know if RN will allow such an action to be done by motion?
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> Posted by: Jim Selth
> Reply via web post Reply to sender Reply to group > VISIT YOUR GROUP New Members 1
My question: Has anyone filed one of these Motions to Avoid Lien on monies held by a Sheriff, who can point me to a case on PACER? Is the LBR Form 4003-2.2.AVOID.LIEN.PP.MOTION
the correct form? It refers to a nonjudicial lien, and seems to be designed only for avoiding a security interest on an appliance or furniture. CCP 706.029 is a statutory lien, but is it a nonjudicial lien? By the way, that LBR Form 4003-2.2.AVOID.LIEN.PP.MOTION
has several apparent typos in referring to lien on personal property.
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