Dealing with liens when you have no assets

[bkstuff1]

So I’m getting really close to filing my paperwork, but I’m stuck on one last piece; How to deal with the liens I have against me.

First, a little background:

I’ll be filing a pro se chapter 7 in the middle district of Florida.
I have total assets of <$2k (home furnishings, a pet, clothing, and a $1200 tax refund). All of this is way below the state exemption of $4k.
My house was foreclosed back in September (FNMA took title at auction, no bidders).

Now here is the problem:

FNMA has a final judgment of mortgage foreclosure posted in county records for ~$150k. This figure would be the total mortgage loan plus various fees awarded by the court. There is no deficiency judgment yet because there was no 3rd party buyer.

Also, I had a car repossessed in may of last year. It was sold and a final deficiency judgment was rendered for ~$8k. Again, this is posted in public record.

My understanding is that both of the above are liens because the abstract was posted in the public record. However, because I have no real/titleable assets, they are just general liens.

I realize that both of the above go on schedule F and that the FNMA mortgage should be estimated.

What I DON’T understand is if I have to do anything else after filing the voluntary petition for chapter 7. Is there a motion I need to file in order to be able to eliminate (without paying) the liens after the BK is closed? If so, what kind should I be filing?

I also have a federal tax lien, but in an effort to keep things simple, I’ll post it to another thread.

[justbroke]

My understanding is that both of the above are liens because the abstract was posted in the public record. However, because I have no real/titleable assets, they are just general liens.

Yes, they are recorded and must be dealt with. They attach to all "personal and real" property. So, I would make it nice and neat and do what I suggest in the answer below. I would then record the Order Granting Debtor's Motion to Determine Secured Status and Avoid Lien with the County Recorder!

What I DON’T understand is if I have to do anything else after filing the voluntary petition for chapter 7. Is there a motion I need to file in order to be able to eliminate (without paying) the liens after the BK is closed? If so, what kind should I be filing?

You should probably record the discharge. I would also file a Motion to Determine Secured Status and Avoid Lien (Pursuant to 11 USC 522(f)) in the Bankruptcy court the same day that you file. Make sure you do proper service!

[bkstuff1]

Justbroke my friend, you are my hero.

This may be a stupid question but do I file one motion and list both creditors or one for each?

Thanks SOOOOO much!

EDIT:/// nevermind, I found the answer. I need to submit one for each lien.

[bkstuff1]

I would also file a Motion to Determine Secured Status and Avoid Lien (Pursuant to 11 USC 522(f)) in the Bankruptcy court the same day that you file. Make sure you do proper service!

Hey justbroke,

I filed all my paperwork on friday (4/1) but when I started asking "procedural questions" about how the motion was filed, the clerk told me she couldn't help. :-/ Long story short I decided to hold off on the motion until I found definitive answers. I was hoping that since you also filed in middle disctrict of florida, you could help me clear a few things up:

1) I file the "motion to avoid lien" and the "declaration in support of debtors motion" with the clerk, right?

2) Do I include the "declaration in support of debtors motion" in the service to the creditors, or is that just for the court?

3) I was going to have an unreleated 3rd party do the service on the creditor (I BELIVE it's required), so I made up a certificate of service for them to sign after they do the mailing. Can I deliver this the the clerk (assuming thats where it goes) or does that 3rd party have to drop it off?

4) Should they send the motion certified mail with a return receipt requested, or is regular first class mail ok?

5) As far as the timing... can I have the 3rd party serve the motion to the creditor before the motion is filed? I'm trying to figure out if I can just take the motion, declaration, and certificate of service to the clerk in one trip and be done with it...

6) I'm attaching a copy of the creditors lien to the motion as an exhibit. Does this have to be a certified copy or can I just print the document off the public records website and use that? I'm a bit concerned because the public records doc has a giant "this is not a certified copy" plastered across the page and my motion uses words like "true and correct copy"...

Thanks in advance for any help you can offer.

[justbroke]

I filed all my paperwork on friday (4/1) but when I started asking "procedural questions" about how the motion was filed, the clerk told me she couldn't help. :-/ Long story short I decided to hold off on the motion until I found definitive answers. I was hoping that since you also filed in middle disctrict of florida, you could help me clear a few things up:

Many times, where you think it's procedural, it's actually legal advice! Asking "when" to file is not a procedural question. You also can't ask "how" to file a motion. Motions are legal matters. If you asked about the certificate of service, they'd probably answer you.

1) I file the "motion to avoid lien" and the "declaration in support of debtors motion" with the clerk, right?

Yes. It would be an "UNSWORN DECLARATION IN SUPPORT OF DEBTOR'S MOTION TO AVOID LIEN". You file that with the Motion to Avoid Lien.

2) Do I include the "declaration in support of debtors motion" in the service to the creditors, or is that just for the court?

For both.

3) I was going to have an unreleated 3rd party do the service on the creditor (I BELIVE it's required), so I made up a certificate of service for them to sign after they do the mailing. Can I deliver this the the clerk (assuming thats where it goes) or does that 3rd party have to drop it off?

You can "file" it with the clerk. I never got in any trouble serving papers in "contested" matters myself. I was careful for the "complaint" (adversary proceeding), because service is different for a complaint. The 3rd party only needs to not be a "party in interest" in order to give service.

4) Should they send the motion certified mail with a return receipt requested, or is regular first class mail ok?

For a motion to avoid lien, I'd always send it certified mail return receipt requested. You can, yourself, do all the paperwork for this up front. I had sent so many things certified and to the court, that I actually printed labels for everything. I don't think you'll need labels, but it was convenient for me.

5) As far as the timing... can I have the 3rd party serve the motion to the creditor before the motion is filed? I'm trying to figure out if I can just take the motion, declaration, and certificate of service to the clerk in one trip and be done with it...

You always serve it before it's filed! Yes, you can take the motion, declaration and certificate of service to the clerk in one trip. Technically, I mailed all my "contested matters" and motions into the Clerk's office. I only went into the Clerk's office for "special" things. As a matter of fact, I even opened my AP through overnight mail to the clerk, after serving it (3rd party) on the creditor.

6) I'm attaching a copy of the creditors lien to the motion as an exhibit. Does this have to be a certified copy or can I just print the document off the public records website and use that? I'm a bit concerned because the public records doc has a giant "this is not a certified copy" plastered across the page and my motion uses words like "true and correct copy"...

No, it can be a print from public records. If it goes to "trial" and you're required to produce "evidence", then you can go to the "Florida" Clerk of the Court and pay a fee for a certified copy.

[bkstuff1]

Ok, so I'm fairly confident that I have this all right, but if anyone can take a minute to read what I have and point out any mistakes, I would be forever in your debt. Thanks in advance.

ps- I know the formatting is a disaster... I promise it looks better in word.

---------------

UNITED STATES BANKRUPTCY COURT
MIDDLE DISTRICT OF FLORIDA

IN RE:


(my name) Case No. 11-xxxxx-xxx
Chapter 7



______________________Debtor____/



DEBTOR’S VERIFIED MOTION TO AVOID JUDICIAL LIEN AND DETERMINE SECURED STATUS OF (CREDITORS NAME)

PURSUANT TO 11 U.S.C. §§ 522(f)



NOTICE OF OPPORTUNITY TO
OBJECT AND FOR HEARING

PURSUANT TO LOCAL RULE 2002-4, THE COURT WILL CONSIDER THIS MOTION WITHOUT FURTHER NOTICE OR HEARING UNLESS A PARTY IN INTEREST FILES AN OBJECTION WITHIN TWENTY-ONE (21) DAYS FROM THE DATE OF SERVICE OF THIS PAPER. IF YOU OBJECT TO THE RELIEF REQUESTED IN THIS PAPER, YOU MUST FILE YOUR OBJECTION WITH THE CLERK OF THE COURT AT 801 NORTH FLORIDA AVENUE, TAMPA, FL 33602, AND SERVE A COPY ON THE MOVANT, (ME AND MY ADDRESS).

IF YOU FILE AND SERVE AN OBJECTION WITHIN THE TIME PERMITTED, THE COURT WILL SCHEDULE A HEARING AND YOU WILL BE NOTIFIED. IF YOU DO NOT FILE AN OBJECTION WITHIN THE TIME PERMITTED, THE COURT WILL CONSIDER THAT YOU DO NOT OPPOSE THE GRANTING OF THE RELIEF REQUESTED IN THE PAPER, WILL PROCEED TO CONSIDER THE PAPER WITHOUT FURTHER NOTICE OR HEARING, AND MAY GRANT THE RELIEF REQUESTED.



NOW COMES DEBTOR, (MY NAME), appearing pro se, pursuant to Fed. R. Bankr. Rule 4003(d) respectfully moves the Court to Determine Secured Status and Avoid Judicial Lien of (CREDITORS NAME) (“Creditor”) on household goods and personal property of the Debtor’s estate pursuant to 11 U.S.C. §§ 522(F)(1)(A). In support thereof, Debtor declares, under penalty of perjury, that the following is true:

1. The Debtor filed a voluntary petition under Chapter 7 of the Bankruptcy Code on (DATE), 2011.

2. Creditor holds a Judicial Lien for the sum of ($XXXX.xx) as set forth in Case No. xx-xxxxx-x, Re. (CREDITOR) v. (ME), on (DATE), 2010, in the Civil Court of Hillsborough County, Florida. Debtor attaches a copy of Creditors claim as Exhibit “A”.

3. Debtor does not own any real property.

4. Debtor owns household goods and personal property as described in the attached Exhibit “B”.

5. The market value of the Debtor’s interest in the above-described household goods and personal property is $ XXXX.xx

6. Debtor can claim $XXXX.XX of the above-described household goods and personal property as exempt under Florida Statute 222.25(4).

7. Accordingly, the Creditors Judicial Lien impairs an exemption to which debtor is entitled under 11 U.S.C. § 522(b).



WHEREFORE, the Debtor respectfully moves the Court to avoid the lien of the Creditor pursuant to 11 U.S.C § 522(f)(1)(A) on the grounds that such lien impairs an exemption to which Debtor is entitled under 11 U.S.C. § 522(b).




Dated at Tampa, Florida Respectfully submitted
this ______ day of April 2011. _____________________________
((ME), Pro Se)

(ME)
(ADDRESS)
(PHONE)
(FAX)
(EMAIL)

----- PAGE BREAK----

UNSWORN DECLARATION IN SUPPORT OF
DEBTOR’S VERIFIED MOTION TO AVOID JUDICIAL LIEN AND DETERMINE SECURED STATUS OF (CREDITORS NAME)


I, (MY NAME), declare under penalty of perjury that I have read DEBTOR’S VERIFIED MOTION TO AVOID JUDICIAL LIEN AND DETERMINE SECURED STATUS OF (CREDITORS NAME) and that it is true and correct to the best of my knowledge, information, and belief.



_________________________________ _______________________
(MY NAME) Date


---- PAGE BREAK----

UNITED STATES BANKRUPTCY COURT
MIDDLE DISTRICT OF FLORIDA

IN RE:


(MY NAME) Case No. 11-XXXXX-XXX
Chapter 7



______________________Debtor____/



DEBTOR’S VERIFIED MOTION TO AVOID JUDICIAL LIEN AND DETERMINE SECURED STATUS OF (CREDITORS NAME)

Certificate of Service

I hereby certify that a true and correct copy of the foregoing DEBTOR’S VERIFIED MOTION TO VOID JUDICIAL LIEN AND DETERMINE SECURED STATUS OF (CREDITORS NAME), including Exhibits “A” and “B”, has been furnished by First Class, U.S. Mail, postage pre-paid, on this ______ day of (MONTH), 2011 to;



CREDITORS NAME
ADDRESS 1
ADDRESS 2


______________________________
(3RD PARTIES NAME)
(Debtor’s (RELATIONSHIP))

3RD PARTIES ADDRESS
PHONE
EMAIL

[justbroke]

Make sure that you have the right number of days for that type of negative noticing. I don't have time to look it up, but motions to determine secured status may be 30 days.

I would rearrange the motion caption to... VERIFIED MOTION TO DETERMINE SECURED STATUS AND AVOID LIEN OF SOMEBIGBANK (CLAIM No. XX). (They like it when the referenced document/claim is in the caption!

Also, there are some cookie-cutter avoidance motions on the Internet that show the formula that you "must" use in your motion. I would look at those and make sure you include that information. It's better to show it in a columnar format so that the math is easily shown, and how the lien impairs your exemption.

Other than that, looks like you copied one of mine.

[bkstuff1]

Thanks justbroke, I filed it yesterday. I'll keep my fingers crossed that it works out.

Ohh, and yes, it looks like yours because it pretty much is.

[justbroke]

I don't think you'll be hurt by this, but negative noticing in the Middle District (FLMB) changed a little. The phrase "DAYS FROM THE DATE OF SERVICE OF THIS PAPER" was changed to read "DAYS FROM THE DATE THIS PAPER IS ENTERED ON THE DOCKET".

For anyone else, just make sure you read Local Rule 2002-4 or "your" specific local rule on Negative Noticing, if it is allowed.

[bkstuff1]

*** Update ***

So the negative notice window has passed and the creditor did not respond to the motion. My understanding is that I must now file an Order Granting Motion with the clerk. Problem is, I have absolutly no idea where to begin... Can anyone recommend an example/template that I can use to construct this thing?

Thanks in advance for any help you can provide.

[justbroke]

You are lucky. For Middle District of Florida, several judges publish a "standard" order. However, it's not 100% perfect and you need to add all the standard "captioning", box for the judge to sign, and clean it up a bit. It's a start though! (I also suggest checking the Calendar and looking up hearings on motions to avoid lien, and then pull that case(s) up in PACER and look for the order granting to compare.)

http://www.flmb.uscourts.gov/jennemann/documents/motion_avoid_lien.pdf