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Brent Blanchard
Brent Blanchard, Bankruptcy Attorney
Category: Bankruptcy Law
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Experience:  Twelve years experience in all aspects of debtor & creditor BK.
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Can a realtor file a lien on the listing agreement and recover

Resolved Question:

Can a realtor file a lien on the listing agreement and recover on liens if property is going through bankruptcy?
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  Brent Blanchard replied 5 years ago.
On what basis/FL statute is the lien based? I'm not aware of any rights to lien property based on real estate commissions earned but not paid out (I had a client try on her own once, and the lien did no good in the BK which was filed a few months later).

If the property is ALREADY involved in a BK case (not "about to" or "planning to" but already filed) by being an asset of an individual or a business debtor, then recording the lien now is almost certain to be considered an "attempt to collect a debt" which is a violation of the Automatic Stay if done before the discharge is granted, or a violation of the Permanent Injunction if it's after discharge.

This would be very risky, because all it takes to become liable for actual damages PLUS attorney's fees is proof that the lien was recorded intentionally. There is no need to prove that the creditor did not "intend" to violate the automatic stay/permanent injunction.

The proper course of action is to file a Proof of Claim in the BK. If you received notice of the BK through a mailing from the Court, then your debt should be listed on the schedules and you should check to make sure the correct amount is listed there. There is also a deadline to file a proof of claim, so become fully informed of what's happening in the BK case.

It's best to have a lien recorded BEFORE the BK case starts, because the debtor must take extra steps to "avoid" a lien during the BK case. If the lien is not avoided, the debtor gets discharged from personal liability for the debt, but the lien as an encumbrance against the property survives the BK and can be enforced later on.

Thank you.

BAB.
Brent Blanchard, Bankruptcy Attorney
Category: Bankruptcy Law
Satisfied Customers: 1915
Experience: Twelve years experience in all aspects of debtor & creditor BK.
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Twelve years experience in all aspects of debtor & creditor BK.