You can object to a case going to the bap and it will go to the district court.
Sent from my iPhone
On Feb 8, 2012, at 7:07 PM, "Mark J. Markus" wrote:
> But wait a minute....What about In re Pederson, 230 BR 158 (9th Cir BAP 1999) (citing Farrey vs. Sanderfoot)? I just had this issue come up recently. In order to be able to avoid a lien on property, the debtor must have acquired the property prior to the lien attaching. This isn't a matter of senior vs. junior--if the property wasn't acquired prior the lien being recorded, then it cannot be avoided. (There is one New Mexico case that goes the other way, so there is an argument to be made, but you'd be arguing to have the court take a New Mexico Bk court decision as higher precedent than the BAP. Moreover, if you prevailed, and the other side appealed, it could go to the BAP and they've already ruled on it)
>
>
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> On 2/8/2012 6:18 PM, Nicholas Gebelt wrote:
>>
>> Dear Stella,
>>
>> I see nothing in 522(f) that limits avoiding judgment liens to those that are junior to consensual liens; and the BAP agrees with me. Indeed, in In re Charnock, 318 BR 720, 721 (B.A.P. 9th Cir. 2004), the BAP held:
>>
>> Judicial lien holder and appellant Byron Z. Moldo ("Creditor") appeals from the bankruptcy court's order avoiding his judicial lien under Section 522(f). Creditor argues that his lien should not be avoided because it is senior to a subsequent consensual lien, which has not been avoided. We disagree. Senior as well as junior judicial liens are avoidable under the plain meaning of the statute. We are not persuaded that this result is either absurd or contrary to Congress' intent, as Creditor argues. Accordingly, we AFFIRM.
>>
>> All the best,
>>
>> Nick
>>
>> Nicholas Gebelt, Ph.D., J.D.
>> Certified Bankruptcy Specialist
>>
>>
>>
>> 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:
You can object to a case going to the bap and it will go to the district court. Sent from my iPhoneOn Feb 8, 2012, at 7:07 PM, "Mark J. Markus" <
bklawr@yahoo.com> wrote:
But wait a minute....What about
In
re Pederson, 230 BR 158 (9th Cir BAP 1999) (citing
Farrey vs. Sanderfoot)? I just had this issue come up
recently. In order to be able to avoid a lien on property,
the debtor must have acquired the property prior to the lien
attaching. This isn't a matter of senior vs. junior--if the
property wasn't acquired prior the lien being recorded, then
it cannot be avoided. (There is one New Mexico case that
goes the other way, so there is an argument to be made, but
you'd be arguing to have the court take a New Mexico Bk
court decision as higher precedent than the BAP. Moreover,
if you prevailed, and the other side appealed, it could go
to the BAP and they've already ruled on it)
*************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
web:
http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what
this means at
The post was migrated from Yahoo.