How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask socrateaser Your Own Question
socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 37971
Experience:  Attorney and Real Estate Broker -- Retired (mostly)
10097515
Type Your Bankruptcy Law Question Here...
socrateaser is online now
A new question is answered every 9 seconds

I have a final judgement awarding me, The Defendant, as

Resolved Question:

I have a final judgement awarding me,

"The Defendant, as a matter of equity, is entitled to be paid the original sum bearing 11% interest from date of final judgement, which was solely used for the plaintiff to purchase homestead property."

I do not have access to pacer. Do you have any suggestions on proving this creates a Purcahse Money Mortgage.
Submitted: 7 years ago.
Category: Bankruptcy Law
Expert:  socrateaser replied 7 years ago.

The language of the judgment demonstrates the existence of what is known as an "equitable lien." Equitable liens are generally considered secured, because they are intended to provide some measure of restittuion to a lender for the deceitful conduct of a borrower. As suct, the lien would be considered secured, and thus not subject to discharge in bankruptcy.

 

However, equitable liens are rare (in contrast to "constructive trusts" which accomplish the same goal, but attach directly to a unique misappropriated property), and they are given different treatment by various state and bankruptcy court jurisdictions. This places you somewhat in an uncertain state. However, if you can prove that the underlying actions of the judgment debtor were fraudulent, then it doesn't matter what your right to repayment is called, because it will be nondischargeable under Bankr. Code Sec. 523(a)(2).

 

That said, I would spend some time researching the U.S. Circuit Court and State court decisions in your jurisdiction to see exactly what sort of treatment is accorded an equitable lien. Because if you can show that your state law would treat an equitable lien as secured, then you don't have to prove fraud, because you have a secured interest, and you can request a lift of the automatic stay and then begin foreclosure proceedings.

 

Hope this helps.

 

Terms and Conditions: By your continuing in this conversation with me, or by your clicking “Accept”, you are expressly agreeing to all of the following: (1) our communication is for entertainment purposes only; (2) you are not consulting me in my professional capacity as an attorney; (3) you do not seek to establish an attorney-client relationship with me, nor do I with you; (4) you will not rely on anything I say and you will obtain appropriate legal counsel via a traditional/office consultation with an attorney licensed to practice in the jurisdiction where your legal issue arises (and you may not use our communication to avoid taxpayer penalties imposed by the U.S. Dept. of Treasury); (5) by communicating with me in this public forum you are irrevocably waiving any right to privacy, confidentiality and attorney-client privilege concerning the matters discussed. You further separately declare that any payment made by you is not consideration for this contract, nor offered for any services rendered by me on your behalf, but rather is made in genuine admiration and respect for my desire to help others. If you do not agree with these terms and conditions, then you must advise me immediately.

socrateaser and 2 other Bankruptcy Law Specialists are ready to help you

Related Bankruptcy Law Questions