Failure to comply with Local Rule 4003-2

[Annie4]

The clerk said when I went to file that she 'couldn't give legal advice' of course, but I probably didn't need to file the 'Motion To Avoid Lien" because there was no property promised for the debt. (Husband had wreck, no insurance, couldn't keep up payments but did sign the answer when they were suing us that it was his, they filed judgement filed with Probate.)

She said we could file it anyway just in case. I did. Then got a denied letter. I called and asked why? She said it was because we didn't add a copy of the lien with the motion to avoid, but on the letter it says failure to compy with Local Rule 4003-2

[justbroke]

She said we could file it anyway just in case. I did. Then got a denied letter. I called and asked why? She said it was because we didn't add a copy of the lien with the motion to avoid, but on the letter it says failure to compy with Local Rule 4003-2. I don't see anything about a copy of anything on there (Rule is below)....

Local Rules are extensions of teh Federal Rules of Bankruptcy Procedure. Rule 4003, which the local "extends", is based on Exemptions and "Lien Avoidance" for Liens which impair an exemption.

If the Clerk says that it was because you didn't include a copy of the "lien" or Agreement, then that is the reason. They are the ones who send the rejection notices. Whenever you enter into a contested matter, you need to provide evidence of what you're contesting. If you don't like the lien, then you must attach it as an exhibit to the Motion.

No property was promised for anything and we have NO extra money each month, but he did sign saying yes he owed it and it was filed with the Probate Court and shows on the credit report. Same thing or no?

I have no clue what you are even trying to do. You say there is no lien, yet you're trying to avoid a non-existent lien?

This is where pro se filers get in trouble... with property. You really need to find out what the status of that property is. You may want to file a Motion to Determine Secured Status instead, but I can't really tell you what to do. It sounds more like you don't even know whether the Note is secured by any property. You need to figure that out first before filing any motions. If the status of the lien is questionable, then you do the Motino to Determine Secured Status and Avoid Lien.

I just don't know what you're trying to do, because you're even questioning yourself.

If this is from an accident, and is some sort of liability suit that your husband lost... then you really need a lawyer to be dealing with the judgment from that Court. I can't tell if your husband only wrecked his encumbered vehicle, did property damage, and/or injured another person.

Aha, I found the missing information in a different thread...

Background on that: We accidentally let our car insurance expire on a Friday, Sunday my husband had an accident, Monday we got insurance again. They sent us a bill saying we owed $2,500 for their car. We started making payments on it, but we couldn't keep it up, we just didn't have it and was going to file BK 7 anyway. After a while, the Sheriff brought a thing saying we were being sued, we got scared, my husband signed yes, it was his and yes we would make arrangements to pay it. We tried again, couldn't do it.

Okay, so this just sounds like secured debt from the car. I have no clue why you are filing a Motion to Avoid Lien? Where is the car? Was it totaled? Did you cause any other damage to persons or other propety?

[Annie4]

Yes, thank you justbroke!

There was no property promised at any time.

I was looking through all the forms and saw 'avoid judicial lien' and wanted to 'avoid' it.

I had already put it on my Matrix and in Schedule F, so I probably shouldn't have added that in the first place?

But, now that I have, and it's been denied, then I went to take a copy of the lien that was requested. She seemed like that was a good thing and I was probably finished with that and it was ok....

BUT NOOOO

....not with me, I had to go further and instead of leaving the bottom half with a cross out on it and not filling it in, I was nervous about having everything signed and dated, so I went on to fill that part out this time, and when she saw what I did, she made it clear it opened another can of worms, because now I have to 'serve' the company suing me and their attorney on the date, today, when I signed that, and....of course I couldn't do that because it was almost 4pm.

To make it worse, to make it so that I was actually doing something with this paper on this date to head it their way, I actually sent a copy of it certified, return receipt to the attorney's office. So now I probably will have my case dismissed for purgury and ugh, I don't know what else to do right now.

After sort of telling me I had to 'serve' them with that notice, then she gave me a paper, "Order Avoiding Judicial Lien" (I haven't had time to read what to do with this one, I have til Monday I guess to figure it out.)

Then, said something about if I knew how to change it from pd. to pfd.? and email it (don't think she told me where to email it) and she acted like if I didn't do that, it was not good at all.

All this for something I shouldn't have added anyway.

I hope it will be handled and stopped by my adding it to the Matrix and Schedule F. I hope I haven't changed that to a bigger deal?

We're probably going to talk to another attorney Monday, at my husband's workplace, because we've been treated horribly by a couple of attorney's and that was one of the reasons we were trying this by ourselves.

Thank you for taking the time to read this and share your opinions, I appreciate that.

[Annie4]

Oh....

Instead of all that, I could have said.....

It wasn't secured unless signing the thing from the Sheriff secured it?

lol ty

[justbroke]

In many Courts, when you enter a Motion for the Court to do something, you also have to provide a proposed order. The proposed order is basically what the Judge signs, should you win. This is where procedure and knowledge of the law are important. I think you may have jumped into the deep end. If you didn't file a proposed order with your Motion to Avoid Lien, it will probably be kicked back because of the missing proposed order. Suffice it to say that when dealing with lien avoidance -- especially for judgments -- it's usually best to have legal representation.

I really wish I could help, but it would only end up hurting.

As you can probably tell, I'm hesitant to give you any constructive advice, because I do not believe that you are prepared to handle these things. Avoiding a lien is a contested matter and unless you're prepared to litigate, should probably not have done so. Everything I want to tell you would either get you deeper into this or make it worse, so that's why I'm hesitant.

You also didn't mention whether there was any personal injury ot property damage -- other than your husband's car. All of these are pertinent and why I will keep suggesting legal help.

[Annie4]

Other driver's car damaged

2,500 worth.

But if there's no property to get, what do they do?

No one was injured, just the other driver's vehicle.

[justbroke]

2,500 worth.

But if there's no property to get, what do they do?

No one was injured, just the other driver's vehicle.

Who is the judgment from? Is it from your insurance company, their insurance company, or did the "injured" party sue you personally? (By injured I mean they suffered a loss... damage to their car.)

[Annie4]

The judgment is from a company, the other man was driving a company car that my husband hit (after the man blinded him with bright lights in the sleet).

And the arrangements we set up, after the Sheriff brought the papers and he 'answered' it that yes he owed them for that, were to pay their attorney's office (collection attorney's) each month.

When we couldn't keep up the payments, they filed a 'certificate of judgement' with the probate court and it started showing on the credit report.

After looking at it just then, it doesn't say lien on it anywhere.

[HHM]

Unless the judgement was filed at the county recorders office, there is no lien to avoid. Basically, you screwed up, but no big deal.

If someone simply has a judgment against you, you don't have to do anything in bankruptcy court except list the judgment holder as a creditor. AFTER the case is discharged, you take that discharge order and file it at the county/state court that issued the judgment along with a Motion to Vacate Judgement.

Luckily (hopefully), this pro se mistake won't cost you anything. Doesn't sound like it will.

However, you need to make sure that this judgment was never actually filed anywhere of consequences. States have different rules on where a judgment needs to be filed to "perfect" the lien.

[Annie4]

Well, you just made me feel a ton better. I will relax til I hear something else.

I did list the company and their attorney in my creditor list.

Thank you!

Oh, does the clerk actually take the time to see if it's secured before sending out that defient filing notice, or they just do it automatically?

[Annie4]

Er

*deficient

[justbroke]

Oh, does the clerk actually take the time to see if it's secured before sending out that defient filing notice, or they just do it automatically?

Their process is based on what's required to file a particular paper. I don't think they check whether it's secured or not, only that you filed the appropriate papers/certificates with it.

[Annie4]

Filling out the bottom 1/2 of that paper that said I had 'served' the other company's attorney Friday with the unneeded motion to avoid lien, and then just sending it in the mail that day, do you think that could annoy the judge, or trustee (the clerk actually called her the case worker) and have my whole case dismissed?

As I keep reading, I see that my case is a very simple, no asset Chap 7 and I expected it to be more difficult, so I was filling out uneeded papers to make sure I had more than enough, rather than not enough.

[HHM]

Filling out the bottom 1/2 of that paper that said I had 'served' the other company's attorney Friday with the unneeded motion to avoid lien, and then just sending it in the mail that day, do you think that could annoy the judge, or trustee (the clerk actually called her the case worker) and have my whole case dismissed?
.

No, don't worry about. Basically, the motion will never be set for hearing because of the rule violation, so it will simply go away.

[Annie4]

I love problems that just go away!!!! lol

That'll work, thank you!