top Ad Widget

Collapse

Announcement

Collapse
No announcement yet.

reason to fight a judgement till the end

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

    reason to fight a judgement till the end

    if you own a house...and a creditor is going to sue and get a judgement ..before you can file bankruptcy..and you want to KEEP the house....this could be a consequence...answer from law firm in California..THIS is why you should fight a judgement if you own a house....


    Removal of judgment liens that impair your homestead exemption is handled by motion. The Law Offices Of +++++ fees to handle your bankruptcy proceeding do not include prosecuting such a motion to avoid involuntary judicial liens...it is not a bad idea to purchase a preliminary title report in order to determine whether filing a motion to remove an involuntary lien is advisable and necessary. If you do not intend to continue paying for the home, you are certain that no one other than a taxing agency has liened your home, or the balance owing to the lienholder does not warrant paying the approximately $150 to $300 to purchase a preliminary title report and the approximately $750 to $1,000 to have the law offices of +++++prepare and file a motion to remove the lien, then purchasing a preliminary title report does not appear necessary. Otherwise, the Law Offices +++++ suggests you do so.
    Only judicial liens can be avoided if there is impairment of the exemption which you have claimed against your property. Other involuntary liens, such as statutory tax liens, mechanic's liens, and lis pendens are not avoidable pursuant to Section 522(f
    If the bankruptcy case is concluded and you realize months or years later that there was a judgment lien against your home, often discovered during a potential sale or refinancing, you can seek to have the bankruptcy court reopen the proceeding so that a motion to avoid a judgment creditor's lien can be filed and prosecuted, but you must realize that it may take sixty days or more to obtain the bankruptcy court order, and there is no guarantee that the bankruptcy judge will grant the motion to reopen the case
    It is your responsibility to alert+++++ to the presence of judgment liens against your property so that an appropriate motion can be prepared and filed. It is not up to the Law Offices of ++++++ to determine whether there are judgment liens against your property.

    #2
    Florida Declaration of Domicile

    In Florida, if you file Declaration of Domicile (Homestead Exemption); unsecured creditors cannot place liens against your home. BTW it costs $15 to file for this exemption.
    Glad to see you Big Boy.

    Comment


      #3
      what i am tring to say here..is IF you have a house..the normal judgement easily becomes a abstract lien quickly..and as you can see..will become harder and more costly to remove...this lawyer quotes up to 1k...if you file within 90 days of getting judgement..if you dont have a house or are giving house back in bk...then as lawyer mentioned no need to worry...if they get a abstract judgement it DOESNT go away automatically....i have one against me..i just bought a house...now they cant take the house because of homestead...but i cant sell it either...i have to wait it out and hope it falls off in another 5 years.....another little unknown fact...IF you are 1/2 owners with someone and are listed as tennat in common....which is common in florida for unmarried spouses........the lien WILL survive your death...and your partner WILL have to pay the lien out of your 1/2...if on the other hand...you are listed as jt...joint tenant with right of survivorship..the lien will expire when you do....and your spouse or other half will get the whole house.....BUT>>>you must change to joint tennant BEFORE someone gets a abstract.....california appeals case....
      GREAT to have you back bb....

      Comment


        #4
        Martha....it was my understanding in florida when i lived there...although they cant take your house or force a sale..because of unlimited homestead...they can still file a abstract lien on your property...and WHEN OR IF you sell...you will have to pay....in fact it took the creditor 3 years to find me in florida...and when he did he threatened on domesticating the judgement there...to lien my house.....fortunetaly i sold before he was able to do that....

        Comment


          #5
          Martha:
          Filing a 'Florida Delaration of Domicile' is probably good if there is a question when it comes to establishing permanent resident status...in cases where one has 'places'/property in other states.

          However, pertaining to judgement liens and Fl homestead, the 'Declaration of Domicile' in no way exempts one from having a judgement lien filed against the property, though homesteaded property is indeed 'judgement proof' ( with the exeption of i.e.: mortgages, mechanics liens).

          See, in Fl whenever there is a judgement lien, it's not sorted out which property is homesteaded and which is not. Instead the judgement is placed on a 'blanket' basis and covers any and all properties one may own throughout Fl.
          Actually there is NO form available to file as a 'Declaration of Homestead' that would prohibit a judgement lien placed on a homestead... I know, because just recently I spent considerable time trying to do just that, while attempting to be proactive.

          There is however a form that can be used (Chapter 222.01) PRIOR TO LEVY ! ...and here is what it looks like:
          Title XV
          HOMESTEAD AND EXEMPTIONS Chapter 222
          METHOD OF SETTING APART HOMESTEAD AND EXEMPTIONS View Entire Chapter

          222.01 Designation of homestead by owner before levy.--
          (1) Whenever any natural person residing in this state desires to avail himself or herself of the benefit of the provisions of the constitution and laws exempting property as a homestead from forced sale under any process of law, he or she may make a statement, in writing, containing a description of the real property, mobile home, or modular home claimed to be exempt and declaring that the real property, mobile home, or modular home is the homestead of the party in whose behalf such claim is being made. Such statement shall be signed by the person making it and shall be recorded in the circuit court.
          (2) When a certified copy of a judgment has been filed in the public records of a county pursuant to chapter 55, a person who is entitled to the benefit of the provisions of the State Constitution exempting real property as homestead and who has a contract to sell or a commitment from a lender for a mortgage on the homestead may file a notice of homestead in the public records of the county in which the homestead property is located in substantially the following form:


          NOTICE OF HOMESTEAD


          To: (Name and address of judgment creditor as shown on recorded judgment and name and address of any other person shown in the recorded judgment to receive a copy of the Notice of Homestead).


          You are notified that the undersigned claims as homestead exempt from levy and execution under Section 4, Article X of the State Constitution, the following described property:



          (Legal description)


          The undersigned certifies, under oath, that he or she has applied for and received the homestead tax exemption as to the above-described property, that _____ is the tax identification parcel number of this property, and that the undersigned has resided on this property continuously and uninterruptedly from (date) to the date of this Notice of Homestead. Further, the undersigned will either convey or mortgage the above-described property pursuant to the following:


          (Describe the contract of sale or loan commitment by date, names of parties, date of anticipated closing, and amount. The name, address, and telephone number of the person conducting the anticipated closing must be set forth.)


          The undersigned also certifies, under oath, that the judgment lien filed by you on (date) and recorded in Official Records Book _____, Page _____, of the Public Records of __________ County, Florida, does not constitute a valid lien on the described property.


          YOU ARE FURTHER NOTIFIED, PURSUANT TO SECTION 222.01 ET SEQ., FLORIDA STATUTES, THAT WITHIN 45 DAYS AFTER THE MAILING OF THIS NOTICE YOU MUST FILE AN ACTION IN THE CIRCUIT COURT OF __________ COUNTY, FLORIDA, FOR A DECLARATORY JUDGMENT TO DETERMINE THE CONSTITUTIONAL HOMESTEAD STATUS OF THE SUBJECT PROPERTY OR TO FORECLOSE YOUR JUDGMENT LIEN ON THE PROPERTY AND RECORD A LIS PENDENS IN THE PUBLIC RECORDS OF THE COUNTY WHERE THE HOMESTEAD IS LOCATED. YOUR FAILURE TO SO ACT WILL RESULT IN ANY BUYER OR LENDER, OR HIS OR HER SUCCESSORS AND ASSIGNS, UNDER THE ABOVE-DESCRIBED CONTRACT OF SALE OR LOAN COMMITMENT TO TAKE FREE AND CLEAR OF ANY JUDGMENT LIEN YOU MAY HAVE ON THE PROPERTY.


          This _____ day of _______________, 2_____.
          ______________________________

          (Signature of Owner)



          ______________________________

          (Printed Name of Owner)



          ______________________________

          (Owner's Address)



          Sworn to and subscribed before me by ______________________________ who is personally known to me or produced ______________________________ as identification, this _____ day of _______________, 2_____.


          ______________________________

          Notary Public



          (3) The clerk shall mail a copy of the notice of homestead to the judgment lienor, by certified mail, return receipt requested, at the address shown in the most recent recorded judgment or accompanying affidavit, and to any other person designated in the most recent recorded judgment or accompanying affidavit to receive the notice of homestead, and shall certify to such service on the face of such notice and record the notice. Notwithstanding the use of certified mail, return receipt requested, service shall be deemed complete upon mailing.
          (4) A lien pursuant to chapter 55 of any lienor upon whom such notice is served, who fails to institute an action for a declaratory judgment to determine the constitutional homestead status of the property described in the notice of homestead or to file an action to foreclose the judgment lien, together with the filing of a lis pendens in the public records of the county in which the homestead is located, within 45 days after service of such notice shall be deemed as not attaching to the property by virtue of its status as homestead property as to the interest of any buyer or lender, or his or her successors or assigns, who takes under the contract of sale or loan commitment described above within 180 days after the filing in the public records of the notice of homestead. This subsection shall not act to prohibit a lien from attaching to the real property described in the notice of homestead at such time as the property loses its homestead status.
          (5) As provided in s. 4, Art. X of the State Constitution, this subsection shall not apply to:
          (a) Liens and judgments for the payment of taxes and assessments on real property.
          (b) Liens and judgments for obligations contracted for the purchase of real property.
          (c) Liens and judgments for labor, services, or materials furnished to repair or improve real property.
          (d) Liens and judgments for other obligations contracted for house, field, or other labor performed on real property. History.--s. 1, ch. 1715, 1869; RS 1998; GS 2520; RGS 3875; CGL 5782; s. 20, ch. 73-334; s. 2, ch. 77-299; s. 1, ch. 83-40; s. 1195, ch. 95-147; s. 25, ch. 2000-258; s. 17, ch. 2005-241.

          Comment


            #6
            Good info ohboy

            Am I understanding this law correctly. You file this form (Chapter 222.01) PRIOR TO LEVY; but after Judgement to prevent a lien on your home? Or only when you go to sell or assign your property do you file this form?
            Last edited by Martha31; 10-20-2009, 06:34 PM.

            Comment


              #7
              Originally posted by junker View Post
              what i am tring to say here..is IF you have a house..the normal judgement easily becomes a abstract lien quickly..and as you can see..will become harder and more costly to remove...this lawyer quotes up to 1k...if you file within 90 days of getting judgement..if you dont have a house or are giving house back in bk...then as lawyer mentioned no need to worry...if they get a abstract judgement it DOESNT go away automatically....i have one against me..i just bought a house...now they cant take the house because of homestead...but i cant sell it either...i have to wait it out and hope it falls off in another 5 years.....another little unknown fact...IF you are 1/2 owners with someone and are listed as tennat in common....which is common in florida for unmarried spouses........the lien WILL survive your death...and your partner WILL have to pay the lien out of your 1/2...if on the other hand...you are listed as jt...joint tenant with right of survivorship..the lien will expire when you do....and your spouse or other half will get the whole house.....BUT>>>you must change to joint tennant BEFORE someone gets a abstract.....california appeals case....
              GREAT to have you back bb....
              How do you find out if is tenant or joint. In my case I am married.
              Thanks

              Comment


                #8
                it would be on your deed of trust...right next to you and your husbands name...in florida if married you are probably jt.... but if for some reason you are not, have a lawyer file a change...probably cost 50 bucks...but in florida...two unmarried people living together can NOT claim jt. they must file tennant in common...which does not protect spouse after death..at least in california...i am not sure on florida law..

                Comment


                  #9
                  Martha:

                  Originally posted by Martha31 View Post
                  Am I understanding this law correctly. You file this form (Chapter 222.01) PRIOR TO LEVY; but after Judgement to prevent a lien on your home? Or only when you go to sell or assign your property do you file this form?
                  ha...now as it gets down to the 'nitty' gritty, I give up and don't have an answer. Personally I have looked at this form and remain utmost confused wondering if it's supposed to be used only when somebody wants to enforce the lien, OR it also can or should be used if the owner of the property just wants to sell ....

                  Junker:

                  my husband and I were not married when we bought this place here in FL, and we are listed on the deed as 'joint tenants with full rights of survivorship'.

                  Also, would it not be the best bet if a property, in a non community state, that's owned by a married couple be listed on the deed as 'by the entirety ' ?
                  The way I understand it, if i.e. only one person filed for BK, the property could than definately not be taken.... please correct me if I am wrong...

                  Comment


                    #10
                    when i bought in florida i was listed as unmarried man and her an unmarried woman on the deed...when i went to real estate lawyer and asked to be jt tennant with right of surviorship...she said it was only for married couples...and i would HAVE to be listed as tennant in common...thats all i could get...since i paid to have it changed to that i am sure thats all i could get....i am not sure on the other part of question...in florida it is my understanding they cant take your home anyway in bk because of huge homestead exemption

                    Comment


                      #11
                      re read your question ohboy...and i guess the reason we didnt get that on title is because of what i said earlier....we were not and STILL are not married. it was NOT an option when i changed deed...you MUST be married to get jt. with right of surviorship....the ONLY option was tennant in common...


                      iTenancy by the entirety is a statutory form of ownership created by a conveyance to a husband and wife. Like joint tenancy, the parties must acquire their interest at the same time and through one title. They must have equal interest in the property, as well as equal rights of possession. One further criterion which applies only to tenants by the entirety is that the parties must be husband and wife....

                      Comment


                        #12
                        Junker:
                        after reading your posts I am now pretty sure I understand how come we are listed as 'joint' on the deed, instead of the 'common' description that applies to unmarried couples.

                        This is actually almost comical....at least to me...: see, at the time the title company that handled the closing on the house that we were buying, also handled the closing of the house we were selling, both the same day.

                        I remember now the girl making out the papers casually asking 'joint with survivorship' ? and me not knowing the difference said 'yes'.

                        Well, the 'kicker' is that the girl apparently assumed that we were married, after all we bought the house that was being sold while we were both married to each other, so the title was made out to joint... however the day in the title office, when the deed was made out for the new house were were buying, we were actually divorced from each other... have since remarried......though sometimes this desciption fits the bill better
                        Last edited by OHBOY; 10-21-2009, 05:27 AM. Reason: smiley

                        Comment


                          #13
                          Originally posted by junker View Post
                          it would be on your deed of trust...right next to you and your husbands name...in florida if married you are probably jt.... but if for some reason you are not, have a lawyer file a change...probably cost 50 bucks...but in florida...two unmarried people living together can NOT claim jt. they must file tennant in common...which does not protect spouse after death..at least in california...i am not sure on florida law..
                          You are right I looked at the loan papers and it has both listed as owners so it is joint ownership.
                          Thanks for the info.

                          Comment


                            #14
                            ha...now as it gets down to the 'nitty' gritty, I give up and don't have an answer. Personally I have looked at this form and remain utmost confused wondering if it's supposed to be used only when somebody wants to enforce the lien, OR it also can or should be used if the owner of the property just wants to sell ....

                            Well I guess we will find out when the first judgement comes.

                            Comment


                              #15
                              Just to throw a little more confusion into this: a judgment has to be docketed in order to have any effect on real estate in NJ. I let Chase get a default judgment against us, and yet when our lawyer did a judgment search, no sign of it. Apparently they haven't gotten around to paying their $35.00 docket fee yet.
                              filed chapter 13..confirmed...converted to chapter 7...DISCHARGED!

                              Comment

                              bottom Ad Widget

                              Collapse
                              Working...
                              X