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Debtor recovery of funds garnished/levied prepetition
My understanding is that 522(f)(B)(1) refers to a security agreement entered into voluntarily between the debtor and the creditor. Also an execution lien (created from a garnishment, levy, or ORAP, etc.) is involuntary and the execution lien attaches only to the debtor's assets above the amount of exemptions provided by the State; it doesn't need to be avoided from the exempt assets because it never attached to them - it only attached to the nonexempt assets.
Therefore, the debtor wouldn't use the court form for 522(f)(B)(1) lien releases for an execution lien. Instead, the debtor would use either a motion or an AP (depending upon which judge is hearing the matter) to assert the State exemption and obtain an order or judgment for turnover.
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On Monday, July 30, 2018, 1:44:32 PM PDT, ccooper@publiccounsel.org [cdcbaa] wrote:
[Attachment(s) from ccooper@publiccounsel.org [cdcbaa] included below]
At the Self-Help Desk, we have helped a few people recently try to recover funds that were garnished or levied immediately prepetition. I've used the local form for a motion to avoid lien for personal property under 522(f) (LBR F 4003-2.2.AVOID.LIEN.PP.MOTION). We've had mixed results, with some judges granting the motion and some saying that a motion to avoid lien isn't the proper pleading.
I've also seen motions for turnover (see attached from case 2:12-bk-23306-RK).Has anyone had success with this or other approaches?
Or, would it have to be an AP, since FRBP 7001(1) says that proceedings to recover money are adversary proceedings?
The post was migrated from Yahoo.
I've always used an adversary if communication with a judgment creditor's counsel failed to bear fruit.
Mark T. Jessee
Law Offices of Mark T. Jessee
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
"We are A Debt Relief Agency"
(805) 497-5868
(805) 497-5864 Facsimile
In a message dated 7/30/2018 1:44:32 PM Pacific Standard Time, cdcbaa@yahoogroups.com writes:
]
At the Self-Help Desk, we have helped a few people recently try to recover funds that were garnished or levied immediately prepetition. I've used the local form for a motion to avoid lien for personal property under 522(f) (LBR F 4003-2.2.AVOID.LIEN.PP.MOTION). We've had mixed results, with some judges granting the motion and some saying that a motion to avoid lien isn't the proper pleading.
I've also seen motions for turnover (see attached from case 2:12-bk-23306-RK).Has anyone had success with this or other approaches?
Or, would it have to be an AP, since FRBP 7001(1) says that proceedings to recover money are adversary proceedings?
The post was migrated from Yahoo.