How do I file a motion to remove a lien

[Flowers]

I included my HOA dues in my BK. It was about $4800.
Just days before I filed BK, the HOA put a lien on my property.

Since it was in the BK I know I am discharged from the debt and now would like the lien removed.

Do I have to use a lawyer or is there a form I can use myself and send to the court here in NJ?

[HHM]

HOA's are granted statutory liens, you may need an attorney to advise you. You are getting into some archaic sections of the BK code.

My take is this, you cannot remove the lien...but at the same time, I am not willing to place a bet

[Flowers]

this is what my attorney sent me. It is confusing isn't it? :

"No, you are not responsible for the debt, however if the lien is on the property, it will remain until the property is sold, unless you file a motion to have the lien removed."

[HHM]

If you have a lawyer, why are you asking if you need a lawyer.

Ohhh, let me guess, you went with some cut rate lawyer that won't do additional work beyond the "basic" BK

I am not sure about your ability to remove this type of lien. After all, liens survive BK. On the one hand, you can argue that an HOA lien is an involuntary lien which can usually be stripped, but on the other hand, it is a statutory lien which usually cannot be stripped.

[justbroke]

As HHM already pointed out, all liens survive bankruptcy (with limited exception). While you could get a really good lawyer who may question the validity of the recorded lien, you are probably out of luck.

HOAs, in most States, have super superior liens on which they can foreclose on a property with almost no resistance. (I believe that only IRS liens, and property tax liens are superior.)

Trust me.. you don't want to mess with an HOA in certain States. Your lawyer should have provided you with plenty of information and you should have, together, decided whether you wanted to challenge that lien. I tend to think that HOA liens are consensual (not involuntary) because you agreed to the Covenants and terms via the HOA Rider which you signed with your mortgage. Then again, I'm not willing to bet that you couldn't actually avoid (remove) one after BKing the debt.

Sure, you are discharged as to the debt, but the lien remains.

[Flowers]

yes, I had a lawyer for the BK, but she hasn't really offered her services for anything beyond that. So I figured I would maybe try to do it on my own.
Even her answer was curt and did not offer a rate along with how to lift the lien.

I come here for answers, not for snarky responses. I try my best to help people and I appreciate the same.

[justbroke]

I come here for answers, not for snarky responses. I try my best to help people and I appreciate the same.

Did what I posted, not help? That's about the extent of my knowledge on the subject. I think it's an uphill battle trying to quash that type of lien.

[Flowers]

If you have a lawyer, why are you asking if you need a lawyer.

Ohhh, let me guess, you went with some cut rate lawyer that won't do additional work beyond the "basic" BK

I thought this answer was a bit un-neccessary. I figured I would put it out to the forum and I get a response about "why are you asking".
Anyway, I will see what I can do about this lien.
It just seems so circular. All debt discharged, but a lien that must be payed.

If I come to a conclusion I will post so others may benefit.

[justbroke]

Anyway, I will see what I can do about this lien.
It just seems so circular. All debt discharged, but a lien that must be payed.

Well, technically, you don't have to pay that debt. However, the non-bankruptcy law would allow a creditor to foreclose upon the asset (property) which provides security for the debt. This has always been the reason why Chapter 7 debtors had to surrender their homes if they didn't redeem or reaffirm them. The Bankruptcy Code is pretty clear on liens surviving the Bankruptcy.

The bottom line is, whether you could strip a statutory and/or consensual lien. I did read some case where it's questionable (they never answered it) as to whether a statutory lien is valid if your were "insolvent" at the time it was recorded.

If I come to a conclusion I will post so others may benefit.

I, and probably others, would probably be interested in if this is possible.

[HHM]

Sorry Flowers, but why focus on that comment when I did provide as much guidance as I could.

But you have to admit, it is a bit odd to ask if you need an attorney and then in your next post state that you have an attorney

Also, I do stand by the comment; when a person has "more than basic" issues but hires a "cheap" attorney, that is self-created frustration, because you are hiring someone that really can't help you and the reason you hired them was based on "price"....you get what you pay for in Bankruptcy.

But as to the issue at hand. Chapter 7 is really not a good tool for dealing with liens. Chapter 7 has no mechanism for dealing with secured debts (your attorney should have informed you...oh yeah, you hired a cheap attorney ). Chapter 7 is for unsecured debts. At a minimum, Justbroke and I have at least pointed in the right direction with the bankruptcy lingo in order to start researching the issue, i.e. Statutory Liens and Consensual vs Non-Consensual, somewhere within the case law and BK code, there should be some guidance (maybe not an answer, but at least the tools to craft an argument).

The context of your situation is this, you are looking for the "exception" to the "rule". The Rule = liens survive BK...it has ALWAYS been that way. In chapter 7, the primary exception is judgment liens, which are non-consensual. The question you need to research is; (1) are HOA liens consensual liens? (2) are HOA liens statutory liens? (2.5) if HOA liens are statutory, can they be removed crammed or stripped in a chap. 7?

[ben1381]

I believe the NOLO books on bankruptcy which you may be able to get at your local library has some guidance on this issue.

[Flowers]

I'll check in on that NOLO.

I just thought removing the lien was something I could do as an individual is all.
Why pay a high-priced attorney? I am so sick of lawyers. Divorce, BK, now more. They are worthwhile but is too much for me at this point.

I talked to the firm that placed the lien on my property. She was nice and explained that while I am discharged from the debt, the lien is on my property and it stays put unless I file a motion to remove it.
Great more lawyer crap. FYI I paid $30k for the divorce and $3000 for the BK ch7.
I am in a mood.
Maybe I will let it sit there for years and years until I move out of here.

[qsr]

Flowers, did you ever resolve this issue? I have an HOA lien on my property and am going through Chapter 7 right now. I'm worried the HOA will try to foreclose even if I get into a workout with my mortgage company.

[Flowers]

From what I understand the lien stays put on the property and at the sale of the condo, the lien is no longer in tact since I filed for BK. So it is in tact but it will not be. Does that make sense.

I thought I was in the clear and this past December I was presented with a $1800 legal bill (outside of the HOA dues that were owed). It was for the legal costs incurred with the HOA legal firm. I just paid it, since it was my responsibility. done and done.

[qsr]

You had no obligation to pay the legal bill if it was incurred before your bankruptcy filing, but it's interesting that they separated it out from the actual dues. I'd be happy to pay the back dues to remove the lien if the outrageous legal bill is dismissed.