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Lien Avoidance & After Acquired Interest
This is a follow-up to recent discussion:
Client files Ch 7 in 2000 and an abstract of Judgment is recorded
pre-petition. Client's residence is held in debtor's "living trust,"
the "John Doe Living Trust." The case is concluded normally, but the
lien is not avoided as debtor does not learn of it.
Subsequently, debtor quitclaims the property from John Doe Living
Trust to John Doe.
Thereafter, debtor learns of the lien for the first time and wishes
to remove it via 522f.
It appears that the debtor took subject to the lien, so that it would
not be avoidable under 522f.
Is there any way to avoid this result? Perhaps on the (somewhat
vague) notion that this is not really a "transfer," that is, John
Doe was always the real owner, either as the beneficiary of the trust
or as the record owner of the property. So the argument goes: it was
a change of name only, not a transfer.
Any ideas would be helpful.
Mike Candiotti
wrote:
> Moe,
>
> Sorry I didn't respond sooner. He is stuck now because he took
back the property subject to the existing liens.
>
> Call me if you need to go over any of it.
>
>
> moe_esq wrote:
> Thanks Nathan:
>
> All the liens were placed on the property when my client held title
> to it. He then gave his interest away, and then it was returned.
> From my reading of the cases, the liens will stick even if title is
> merely changed in from (TIC to JT).
>
>
>
> --- In cdcbaa@yahoogroups.com, Nathan Berneman
> wrote:
> > Moses,
> >
> > You are correct. I recently had this similar situation with
Judge
> Russell. The final outcome was that I could not avoid the liens
> since when the property was deeded back to my client, she took
> subject to those liens that were already on the property. Were any
> of the liens placed on the property while your client was not on
> title or were all the liens recorded prior to the initial transfer?
> >
> > Nate Berneman
> >
> > Call me at my office and I can go more in detail. (805) 492-7045.
> >
> > moe_esq wrote:
> > A potential client came in to see me. He is in an existing
chapter
> > 13 case, and is seeking new counsel. Debtor is behind on his
> > mortgage payments. He is considering converting to chapter 7 and
> > permitting a trustees sale so that he can collect the $75K
> exemption.
> >
> > Debtor has judgment liens on the property totaling approximately
> > $190,000.00. The Judgment liens eat up all the equity.
Typically
> I
> > would assume the liens could be avoided, however I fear a problem
> has
> > arisen. In 2002, Debtor grant deeded the property away, then 3
> > months later regained his interest. Unfortunately the judgment
> liens
> > were recorded in 2001. Based on my understanding of In re
Pederson
> > 230 BR 158 his title in the real estate, due to the 2002
transfer,
> is
> > considered an interest in property acquired after the liens were
> > fixed. Thus, he cannot avoid them pursuant to 522(f).
> >
> > I have a couple of questions regarding the fact pattern.
> >
> > 1. Are the liens avoidable?
> >
> > 2. If so, how can I get around In re Pederson?
> >
> > 3. If not, would the chapter 7 trustee have any interest in
> > selling the property upon conversion since a motion for relief is
> > likely to be filed immediately by the mortgagor upon conversion?
> >
> >
> >
> >
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The post was migrated from Yahoo.
Moe,
Sorry I didn't respond sooner. He is stuck now because he took back the property subject to the existing liens.
Call me if you need to go over any of it.
moe_esq wrote:
Thanks Nathan:
All the liens were placed on the property when my client held title
to it. He then gave his interest away, and then it was returned.
From my reading of the cases, the liens will stick even if title is
merely changed in from (TIC to JT).
wrote:
> Moses,
>
> You are correct. I recently had this similar situation with Judge
Russell. The final outcome was that I could not avoid the liens
since when the property was deeded back to my client, she took
subject to those liens that were already on the property. Were any
of the liens placed on the property while your client was not on
title or were all the liens recorded prior to the initial transfer?
>
> Nate Berneman
>
> Call me at my office and I can go more in detail. (805) 492-7045.
>
> moe_esq wrote:
> A potential client came in to see me. He is in an existing chapter
> 13 case, and is seeking new counsel. Debtor is behind on his
> mortgage payments. He is considering converting to chapter 7 and
> permitting a trustees sale so that he can collect the $75K
exemption.
>
> Debtor has judgment liens on the property totaling approximately
> $190,000.00. The Judgment liens eat up all the equity. Typically
I
> would assume the liens could be avoided, however I fear a problem
has
> arisen. In 2002, Debtor grant deeded the property away, then 3
> months later regained his interest. Unfortunately the judgment
liens
> were recorded in 2001. Based on my understanding of In re Pederson
> 230 BR 158 his title in the real estate, due to the 2002 transfer,
is
> considered an interest in property acquired after the liens were
> fixed. Thus, he cannot avoid them pursuant to 522(f).
>
> I have a couple of questions regarding the fact pattern.
>
> 1. Are the liens avoidable?
>
> 2. If so, how can I get around In re Pederson?
>
> 3. If not, would the chapter 7 trustee have any interest in
> selling the property upon conversion since a motion for relief is
> likely to be filed immediately by the mortgagor upon conversion?
>
>
>
>
> Yahoo! Groups SponsorADVERTISEMENT
>
>
> ---------------------------------
> Yahoo! Groups Links
>
> To visit your group on the web, go to:
> http://groups.yahoo.com/group/cdcbaa/
>
> To unsubscribe from this group, send an email to:
> cdcbaa-unsubscribe@yahoogroups.com
>
> Your use of Yahoo! Groups is subject to the Yahoo! Terms of
Service.
>
>
> __________________________________________________
> Do You Yahoo!?
> Tired of spam? Yahoo! Mail has the best spam protection around
> http://mail.yahoo.com
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Moe,
Sorry I didn't respond sooner. He is stuck now because he took back the property subject to the existing liens.
Call me if you need to go over any of it.
moe_esq <Mbardavid@lee-and-chou.com> wrote:
Thanks Nathan:All the liens were placed on the property when my client held title to it. He then gave his interest away, and then it was returned. From my reading of the cases, the liens will stick even if title is merely changed in from (TIC to JT).--- In cdcbaa@yahoogroups.com, Nathan Berneman <nathanberneman@y...> wrote:> Moses,> > You are correct. I recently had this similar situation with Judge Russell. The final outcome was that I could not avoid the liens since when the property was deeded back to my client, she took subject to those liens that were already on the property. Were any of the liens placed on the property while your client was not on title or were all the liens recorded prior to the initial transfer?> > Nate
Berneman> > Call me at my office and I can go more in detail. (805) 492-7045.> > moe_esq <Mbardavid@l...> wrote:> A potential client came in to see me. He is in an existing chapter > 13 case, and is seeking new counsel. Debtor is behind on his > mortgage payments. He is considering converting to chapter 7 and > permitting a trustees sale so that he can collect the $75K exemption.> > Debtor has judgment liens on the property totaling approximately > $190,000.00. The Judgment liens eat up all the equity. Typically I > would assume the liens could be avoided, however I fear a problem has > arisen. In 2002, Debtor grant deeded the property away, then 3 > months later regained his interest. Unfortunately the judgment liens > were recorded in 2001. Based on my understanding of In re Pederson > 230 BR 158
his title in the real estate, due to the 2002 transfer, is > considered an interest in property acquired after the liens were > fixed. Thus, he cannot avoid them pursuant to 522(f).> > I have a couple of questions regarding the fact pattern.> > 1. Are the liens avoidable?> > 2. If so, how can I get around In re Pederson?> > 3. If not, would the chapter 7 trustee have any interest in > selling the property upon conversion since a motion for relief is > likely to be filed immediately by the mortgagor upon conversion? > > > > > Yahoo! Groups SponsorADVERTISEMENT> > > ---------------------------------> Yahoo! Groups Links> > To visit your group on the web, go to:> http://groups.yahoo.com/group/cdcbaa/> > To unsubscribe from this group, send an email to:> cdcbaa-unsubscribe@yahoogroups.com> > Your use of Yahoo! Groups is subject to the Yahoo! Terms of Service. > > > __________________________________________________> Do You Yahoo!?> Tired of spam? Yahoo! Mail has the best spam protection around > http://mail.yahoo.comy I
Do you Yahoo!?
Yahoo! Mail Address AutoComplete - You start. We finish.
The post was migrated from Yahoo.
Thanks Nathan:
All the liens were placed on the property when my client held title
to it. He then gave his interest away, and then it was returned.
From my reading of the cases, the liens will stick even if title is
merely changed in from (TIC to JT).
wrote:
> Moses,
>
> You are correct. I recently had this similar situation with Judge
Russell. The final outcome was that I could not avoid the liens
since when the property was deeded back to my client, she took
subject to those liens that were already on the property. Were any
of the liens placed on the property while your client was not on
title or were all the liens recorded prior to the initial transfer?
>
> Nate Berneman
>
> Call me at my office and I can go more in detail. (805) 492-7045.
>
> moe_esq wrote:
> A potential client came in to see me. He is in an existing chapter
> 13 case, and is seeking new counsel. Debtor is behind on his
> mortgage payments. He is considering converting to chapter 7 and
> permitting a trustees sale so that he can collect the $75K
exemption.
>
> Debtor has judgment liens on the property totaling approximately
> $190,000.00. The Judgment liens eat up all the equity. Typically
I
> would assume the liens could be avoided, however I fear a problem
has
> arisen. In 2002, Debtor grant deeded the property away, then 3
> months later regained his interest. Unfortunately the judgment
liens
> were recorded in 2001. Based on my understanding of In re Pederson
> 230 BR 158 his title in the real estate, due to the 2002 transfer,
is
> considered an interest in property acquired after the liens were
> fixed. Thus, he cannot avoid them pursuant to 522(f).
>
> I have a couple of questions regarding the fact pattern.
>
> 1. Are the liens avoidable?
>
> 2. If so, how can I get around In re Pederson?
>
> 3. If not, would the chapter 7 trustee have any interest in
> selling the property upon conversion since a motion for relief is
> likely to be filed immediately by the mortgagor upon conversion?
>
>
>
>
> Yahoo! Groups SponsorADVERTISEMENT
>
>
> ---------------------------------
> Yahoo! Groups Links
>
> To visit your group on the web, go to:
> http://groups.yahoo.com/group/cdcbaa/
>
> To unsubscribe from this group, send an email to:
> cdcbaa-unsubscribe@yahoogroups.com
>
> Your use of Yahoo! Groups is subject to the Yahoo! Terms of
Service.
>
>
> __________________________________________________
> Do You Yahoo!?
> Tired of spam? Yahoo! Mail has the best spam protection around
> http://mail.yahoo.com
The post was migrated from Yahoo.
Moses,
You are correct. I recently had this similar situation with Judge Russell. The final outcome was that I could not avoid the liens since when the property was deeded back to my client, she took subject to those liens that were already on the property. Were any of the liens placed on the property while your client was not on title or were all the liens recorded prior to the initial transfer?
Nate Berneman
Call me at my office and I can go more in detail. (805) 492-7045.
moe_esq wrote:
A potential client came in to see me. He is in an existing chapter
13 case, and is seeking new counsel. Debtor is behind on his
mortgage payments. He is considering converting to chapter 7 and
permitting a trustees sale so that he can collect the $75K exemption.
Debtor has judgment liens on the property totaling approximately
$190,000.00. The Judgment liens eat up all the equity. Typically I
would assume the liens could be avoided, however I fear a problem has
arisen. In 2002, Debtor grant deeded the property away, then 3
months later regained his interest. Unfortunately the judgment liens
were recorded in 2001. Based on my understanding of In re Pederson
230 BR 158 his title in the real estate, due to the 2002 transfer, is
considered an interest in property acquired after the liens were
fixed. Thus, he cannot avoid them pursuant to 522(f).
I have a couple of questions regarding the fact pattern.
1. Are the liens avoidable?
2. If so, how can I get around In re Pederson?
3. If not, would the chapter 7 trustee have any interest in
selling the property upon conversion since a motion for relief is
likely to be filed immediately by the mortgagor upon conversion?
Yahoo! Groups SponsorADVERTISEMENT
Yahoo! Groups Links
To visit your group on the web, go to:
http://groups.yahoo.com/group/cdcbaa/
To unsubscribe from this group, send an email to:
cdcbaa-unsubscribe@yahoogroups.com
Your use of Yahoo! Groups is subject to the Yahoo! Terms of Service.
__________________________________________________
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Tired of spam? Yahoo! Mail has the best spam protection around
http://mail.yahoo.com
Moses,
You are correct. I recently had this similar situation with Judge Russell. The final outcome was that I could not avoid the liens since when the property was deeded back to my client, she took subject to those liens that were already on the property. Were any of the liens placed on the property while your client was not on title or were all the liens recorded prior to the initial transfer?
Nate Berneman
Call me at my office and I can go more in detail. (805) 492-7045.moe_esq <Mbardavid@lee-and-chou.com> wrote:
A potential client came in to see me. He is in an existing chapter 13 case, and is seeking new counsel. Debtor is behind on his mortgage payments. He is considering converting to chapter 7 and permitting a trustees sale so that he can collect the $75K exemption.Debtor has judgment liens on the property totaling approximately $190,000.00. The Judgment liens eat up all the equity. Typically I would assume the liens could be avoided, however I fear a problem has arisen. In 2002, Debtor grant deeded the property away, then 3 months later regained his interest. Unfortunately the judgment liens were recorded in 2001. Based on my understanding of In re Pederson 230 BR 158 his title in the real estate, due to the 2002 transfer, is considered an interest in property acquired after the liens were
fixed. Thus, he cannot avoid them pursuant to 522(f).I have a couple of questions regarding the fact pattern.1. Are the liens avoidable?2. If so, how can I get around In re Pederson?3. If not, would the chapter 7 trustee have any interest in selling the property upon conversion since a motion for relief is likely to be filed immediately by the mortgagor upon conversion? __________________________________________________Do You Yahoo!?Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com
The post was migrated from Yahoo.
A potential client came in to see me. He is in an existing chapter
13 case, and is seeking new counsel. Debtor is behind on his
mortgage payments. He is considering converting to chapter 7 and
permitting a trustees sale so that he can collect the $75K exemption.
Debtor has judgment liens on the property totaling approximately
$190,000.00. The Judgment liens eat up all the equity. Typically I
would assume the liens could be avoided, however I fear a problem has
arisen. In 2002, Debtor grant deeded the property away, then 3
months later regained his interest. Unfortunately the judgment liens
were recorded in 2001. Based on my understanding of In re Pederson
230 BR 158 his title in the real estate, due to the 2002 transfer, is
considered an interest in property acquired after the liens were
fixed. Thus, he cannot avoid them pursuant to 522(f).
I have a couple of questions regarding the fact pattern.
1. Are the liens avoidable?
2. If so, how can I get around In re Pederson?
3. If not, would the chapter 7 trustee have any interest in
selling the property upon conversion since a motion for relief is
likely to be filed immediately by the mortgagor upon conversion?
The post was migrated from Yahoo.