How to Avoid Judicial Lien on Real Property
March 11, 2020
When you file for Chapter 7 or Chapter 13 Bankruptcy, some non-exemptions may affect your property and whether a judge will place a lien on it. If you are not aware of these issues, it may be shocking to know that once you file for bankruptcy, a judge can seize your assets to pay your creditors.
Today's blog will focus on how to avoid a judicial lien on homestead property. (your primary residence)
BANKRUPTCY: CHAPTER 7 AND CHAPTER 13
If you filed a bankruptcy case and are confronted with finding that a judicial lien remains on your real property (your residence), you have a remedy. It is not uncommon for a debtor who owns real property to neglect to avoid judicial lien during the case.
Typically, the discharge is entered by the court, and the case is closed. Months or even years after the discharge, the debtor goes to sell or refinance the real property only to discover that the lien is still enforceable. Fortunately for the debtor, the lien can be avoided under Bankruptcy Code section 522(f)(1), if the lien impairs the debtor's homestead exemption.
The housing market increased market value in real property over the past years. Many debtors are creating their new life with a fresh start in their bankruptcy case. The surprise to sell the real property or to refinance to find the abstract of judgment remains on the real property does not have to derail the plan. The Bankruptcy Court allows a debtor to reopen the bankruptcy case and allows the debtor to file the motion to avoid the judicial lien.
The Bankruptcy Court avoids the lien after a motion and right to a hearing is provided to the creditor; this applies to the real property that the debtor declared as his or her homestead in the bankruptcy case. The homestead exemption applies to the debtor's residence, and the procedure works in Chapter 7 and Chapter 13 cases.
NEED A BANKRUPTCY ATTORNEY?
Charles W. Daff is a State Bar Certified Specialist in Bankruptcy with more than 43 years of experience. The firm represents consumers and business owners in Chapter 7, Chapter 11, and Chapter 13 bankruptcy. Charles also serves as a Chapter 7 Bankruptcy Trustee in Riverside and San Bernardino Counties currently, as a result of his appointment by the U.S. Department of Justice in 1987. Contact us if you need a bankruptcy attorney.