Posted by Kevin on August 19, 2019 under Bankruptcy Blog | 
Do you have a judgment lien on your home? If so, the debt on that judgment is secured by whatever equity you have in your home.
A judgment lien on your home gives the creditor holding the judgment lien legal rights against your home. A judgment lien holder on your home can, under some circumstances, foreclose on your home. At the least, it can force you to pay the debt when you sell or refinance your home.
Bankruptcy can help. Filing bankruptcy usually results in the legal write-off (the “discharge”) of the debt. The problem is that in many situations bankruptcy does not curtail creditors’ lien rights which pass through the bankruptcy. Even though you discharge that debt, the lien still survives. It can and does come back to haunt you even after a successful bankruptcy.
However, with a judgment lien on your home, bankruptcy often CAN get rid of the judgment lien. This is a potentially huge benefit of filing bankruptcy. The process of getting rid of a judgment lien within bankruptcy is called “judgment lien avoidance.”
The Conditions for Judgment Lien Avoidance
Here’s how the process works.
When you file bankruptcy, to “avoid” a judgment lien you must file what is called a motion with the Court and meet certain conditions:
- The lien you’re getting rid of must be a “judicial lien.” That’s legally defined as “a lien obtained by judgment, levy, sequestration, or other legal or equitable process or proceeding.” Mostly, this refers to judgment liens.
- The judgment lien can attach to “real property or personal property that the debtor or a dependent of the debtor uses as a residence.”
- The judgment lien can’t be for child or spousal support or for a mortgage.
- The judgment lien “impairs” the homestead exemption. In earlier versions of the Bankruptcy Code, the concept of impairment was, at times, confusing. However, under the current Code, it is pretty much a straightforward analysis.
Essentially, you’re entitled to protect the equity in your home provided by the homestead exemption. To the extent a judgment lien eats into that homestead exemption-protected equity, that portion of the lien is avoided, or negated.
For Example
Assume you had $20,000 of equity in your home beyond your first mortgage. Assume also that your designated homestead exemption amount is $25,000. (This varies by state.) This would mean that all of that $20,000 in equity would be protected by the homestead exemption. Then add that a hospital got a judgment against you of $15,000 which became a judgment lien recorded against your home. If you filed a bankruptcy case and moved to avoid that judgment lien, it would be completely avoided because:
- It’s a judicial lien—one “obtained by judgment.”
- The lien attaches to your homestead—the place you “use as a residence.”
- The lien was not for child or spousal support or related to a mortgage.
- All of this $15,000 judgment lien impairs your homestead exemption—eats into the home equity, all of which is protected by the exemption.
In this example, bankruptcy would very likely discharge the $15,000 hospital debt itself. And the motion to avoid the judgment lien would very likely be successful. You would no longer owe the debt. And your home would no longer be encumbered by the judgment lien.
Posted by Kevin on November 23, 2012 under Bankruptcy Blog |
Bankruptcy protects your home. Both Chapter 7 and 13 do so, but which is better for you?
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When you are dealing with your home, you are usually dealing with a mortgage. So, if you are comtemplating bankruptcy, you need to consider both the bankruptcy trustee and your mortgage lender. Here are 5 key questions to ask to find out whether a Chapter 7 straight bankruptcy or a Chapter 13 payment plan is what you need.
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1. Is your home worth more or less than the amount of your mortgage?
In other words, do you have equity in your home? Many people who purchased their homes after 2000 do not have equity in their home. In that case, a Chapter 7 trustee will abandon his or her interest in your home. That means, the trustee is not going to sell your home to pay off your unsecured creditors. But, remember, you still have to deal with your mortgage lender.
But, if you have owned your home for a long time, and have significant equity (that means more than the mortgage $43,250 for a married couple), a Chapter 7 trustee will sell your house. To avoid this, you should look into Chapter 13 to protect that value.
2. Are you current on your mortgage and property tax payments, and if not will you be able to get current within a short time after filing a Chapter 7 bankruptcy?
If you are not behind on your home obligations (and there is not equity in the home), in a vast majority of cases, you can continue making payments and keep the home after you file bankruptcy, regardless whether your other circumstances point you to a Chapter 7 case or a Chapter 13 one.
And if you are not so far behind, so that you could both consistently pay the regular monthly payments and catch up on your mortgage and any property tax arrearage within a few months, your mortgage lender may enter into a forbearance agreement with you to allow you to catch up. In those circumstances, you may want to consider filing under Chapter 7 and keep your home. However, if you would not be able to catch up within a short of period of time, you will likely need the extra power of Chapter 13 to buy more time.
3. Do you have a second (or third) mortgage which is not covered by equity in the home?
IF you have a second mortgage and you owe more on your first mortgage than your home is worth, Chapter 13 allows you to “strip” that second mortgage from your home. This means that you would pay very little or perhaps even nothing on it during your 3-to-5-year case, and then the entire balance would be forever written off. This cannot be done in Chapter 7. So of course if you have a significant second mortgage, this is a huge reason to file under Chapter 13.
This also applies if you have a third mortgage, and you owe more on the combination of your first two mortgages than the home is worth, allowing you to “strip” the third mortgage.
4. Do you have any current liens against your home which are not going to be resolved by filing Chapter 7?
Some debts result in liens against your home. Some of those liens can be taken care of with a Chapter 7 filing, some cannot.
For example, if in the past you were sued by a credit card company, medical provider, or collection agency, that creditor likely has a judgment lien against your home. As long as your home has no more equity than allowed by your homestead exemption (without even considering that judgment lien), you will likely be able to have that judgment lien released in a Chapter 7 case.
But, to use another example, if instead you have a lien against your home for owing back child support, a Chapter 7 is not going help you with that lien. After you file and finish a Chapter 7 case, your ex-spouse or local/state support enforcement agency may be able to foreclose on your home to enforce that lien. In contrast, a Chapter 13 case would protect you from any such foreclosure threat, while providing you a mechanism for paying off that debt while under this protection.
5. Do you have any special debts which could threaten your home later after filing a Chapter 7 bankruptcy case?
Even if you do not currently have any known liens or similar threats against your home, you may have future problems if you have one or more special debts which will survive a straight bankruptcy. The prime examples are income taxes, child and spousal support obligations, construction and home repair debts, and homeowner association dues and assessments. In most states, these kinds of debts either are automatic liens against a home or can easily turn into liens. And most liens can eventually be foreclosed to pay the debt underlying the lien. Chapter 13 can either help avoid a lien from attaching to your home or can enable you to pay the underlying debt and get the lien released without it threatening your home.
