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JoeLawyer
JoeLawyer, Attorney
Category: Bankruptcy Law
Satisfied Customers: 767
Experience:  Attorney in the practice of Bankruptcy Law since 1996
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I live in the state of IN. I filed bankruptcy and was discharged

Customer Question

I live in the state of IN. I filed bankruptcy and was discharged in June, 2009. I own my home jointly w/my husband, who was a non-filer. I recently found out one of my creditiors, a cc company, place 2 judicial liens on our home. The cc company was unsecured debt totaling $7k, was discharged in the bankruptcy. The judgment liens were placed prior to the discharge. The bankruptcy petition placed the home as exempt, jointly owned. The home is paid for. Can these liens be avoided?
Submitted: 7 years ago.
Category: Bankruptcy Law
Expert:  JoeLawyer replied 7 years ago.
HiCustomer

Yes, the liens can still be avoided most of the time. You have to file a Motion to Reopen the bankruptcy case, and the Court will charge a $260 reopen fee.

Then when the case is reopened, you file the Motions to Avoid Judicial Liens. After a 20 day objection period, the motions should be granted and the liens will be removed (assuming the motions are filed correctly), then the case will be re-closed.

The Indiana courts have gotten really strict lately regarding notice to creditors during lien avoidance, so be sure you serve the creditors at the address they list on the Indiana Secretary of State website, and include a line in the address that says "Attn: Highest Officer" or your motions may be struck down by the court for bad service, then you have to start over.

Good luck,
Joe


LEGAL NOTICE: I am only licensed to practice law in certain state(s) and I cannot give legal advice to someone who does not reside in a state in which I am licensed, nor shall anything I say in the above answer or elsewhere on this site be deemed legal advice, even to someone who resides in a state in which I am licensed. Fees I receive for answering questions are paid for information, not for legal advice. This forum is designed to provide general information only, and information herein is not warranted to be correct or applicable in any way since laws may have been misinterpreted herein, since laws change from time to time, and since the impact of those laws on any particular situation varies. The information presented in this site shall not be construed to be formal legal advice nor the formation of an attorney-client relationship. Persons accessing this response are encouraged to seek independent legal counsel in their jurisdiction for guidance regarding their individual circumstances. Do not take any action or inaction based on information presented herein since it is informational and may not be accurate or applicable to you; it merely attempts to give you a basis of knowledge to help you formulate questions to ask a legal or other professional in a face-to-face meeting in your jurisdiction. Joseph Ross does not hold himself out to be a specialist or expert in any area, regardless of assertions made by any third party, and any implication of being an expert or specialist herein is made in error. I hope the information presented above is useful to you. Answer above is (c) Joseph Ross. All rights reserved.
Customer: replied 7 years ago.
Does a lawyer have to do this? Or, is this something I can do on my own?
Expert:  JoeLawyer replied 7 years ago.
You can try to do it on your own, it can get tricky though.

First of all, the instructions below are GENERAL instructions and may or may not work for your specific situation, so use them at your own risk. I am NOT giving legal advice, just providing GENERAL instructions for filing these types of motions:

You (and when I say "you" or "your" I mean most people) first have to go to the Bankruptcy Clerk's office with a paper with the heading MOTION TO REOPEN BANKRUPTCY CASE. Be sure it has your name and bankruptcy case number XXXXX the top. Then you explain in writing on the motion that you need to reopen the case to avoid judicial liens, and sign it. Take an original and 4 copies to the Bankruptcy Clerk along with $260 (cash or credit card I think, no checks, you might want to call them first to see what type of payment they require), and file it. Ask them if they will waive the $260 fee since you are just avoiding liens which is related to discharge, but they probably won't (i.e. the court doesn't charge a fee when cases are reopened for issues regarding discharge, but I'm not sure if lien avoidance counts - I don't think it does). Eventually the court will reopen the case.

Once the case is reopened, you file a MOTION TO AVOID JUDICIAL LIEN, and you state in the motion the value of the real estate, the amount of the mortgage(s) on the real estate, the exemption you claimed (which if you own it as husband and wife in Indiana was, I am assuming, the Tenancy by the Entireties exemption since you filed alone, but check Schedule C of your bankruptcy petition to see), and the amount of the judgment lien against you. Then you state that pursuant to 11 U.S.C. 522(f)(1), the lien should be avoided since it impairs an exemption pursuant to 11 U.S.C. 522(f)(2) because the sum of (i) the lien; (ii) all other liens on the property (i.e. mortgages); and (iii) the amount of the exemption that the debtor could claim if there were no liens on the property; exceeds the value that the debtor’s interest in the property would have in the absence of any liens. Of course you will have to confirm that these assertions are true before doing any of this. Then, sign it and file it with 4 copies at the Clerk's office. You can find a sample MOTION TO AVOID JUDICIAL LIEN by going HERE.

You have to file a separate MOTION TO AVOID JUDICIAL LIEN for each judgment lien you have.

It gets tricky because the court makes you serve a notice to each creditor that they have 20 days to object. This notice has to look a certain way, and you can find one by going HERE.

The notice also has to be served on the right address and say "Attn: Highest Officer" in the address. So, go to the Indiana Secretary of State website, HERE, and do a name search for the creditors and use the address they have registered there.

Assuming the 20 days runs with no creditor objecting, the court will issue orders removing the liens, then re-close the case.

Good luck,
Joe

LEGAL NOTICE: I am only licensed to practice law in certain state(s) and I cannot give legal advice to someone who does not reside in a state in which I am licensed, nor shall anything I say in the above answer or elsewhere on this site be deemed legal advice, even to someone who resides in a state in which I am licensed. Fees I receive for answering questions are paid for information, not for legal advice. This forum is designed to provide general information only, and information herein is not warranted to be correct or applicable in any way since laws may have been misinterpreted herein, since laws change from time to time, and since the impact of those laws on any particular situation varies. The information presented in this site shall not be construed to be formal legal advice nor the formation of an attorney-client relationship. Persons accessing this response are encouraged to seek independent legal counsel in their jurisdiction for guidance regarding their individual circumstances. Do not take any action or inaction based on information presented herein since it is informational and may not be accurate or applicable to you; it merely attempts to give you a basis of knowledge to help you formulate questions to ask a legal or other professional in a face-to-face meeting in your jurisdiction. Joseph Ross does not hold himself out to be a specialist or expert in any area, regardless of assertions made by any third party, and any implication of being an expert or specialist herein is made in error. I hope the information presented above is useful to you. Answer above is (c) Joseph Ross. All rights reserved.
JoeLawyer and 2 other Bankruptcy Law Specialists are ready to help you
Customer: replied 7 years ago.
Joseph Ross, thank you so much for all the help you have provided, and thanks for the sample documents. I truly feel it will help me a lot.
Expert:  JoeLawyer replied 7 years ago.
Good, I'm glad I could be of service!

And thank you for bonus, I really appreciate it!

LEGAL NOTICE: I am only licensed to practice law in certain state(s) and I cannot give legal advice to someone who does not reside in a state in which I am licensed, nor shall anything I say in the above answer or elsewhere on this site be deemed legal advice, even to someone who resides in a state in which I am licensed. Fees I receive for answering questions are paid for information, not for legal advice. This forum is designed to provide general information only, and information herein is not warranted to be correct or applicable in any way since laws may have been misinterpreted herein, since laws change from time to time, and since the impact of those laws on any particular situation varies. The information presented in this site shall not be construed to be formal legal advice nor the formation of an attorney-client relationship. Persons accessing this response are encouraged to seek independent legal counsel in their jurisdiction for guidance regarding their individual circumstances. Do not take any action or inaction based on information presented herein since it is informational and may not be accurate or applicable to you; it merely attempts to give you a basis of knowledge to help you formulate questions to ask a legal or other professional in a face-to-face meeting in your jurisdiction. Joseph Ross does not hold himself out to be a specialist or expert in any area, regardless of assertions made by any third party, and any implication of being an expert or specialist herein is made in error. I hope the information presented above is useful to you. Answer above is (c) Joseph Ross. All rights reserved.

Edited by Joseph Ross on 11/6/2009 at 5:53 AM EST