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cfortunato
cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience:  Bankruptcy professor.
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Can you please point me to the part of the law which I can

Customer Question

Can you please point me to the part of the law which I can give to the judge in a hearing stating that if I was insolvent at the time a property tax lien was placed on my home, then the lien can be removed? I have tried to look on my own but I can't find it - or maybe case law? I just need something to stand on so I can tell my BK attorney what to say to the judge, thank you - also how do I prove I was insolvent?
Submitted: 4 years ago.
Category: Bankruptcy Law
Expert:  cfortunato replied 4 years ago.

It is part of the Bankruptcy Code, specifically Bankruptcy Stat. 545(1)(A) & (D), which you can see here:

http://www.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00000545----000-.html.

Since the county attorney does not work for you, she is under no obligation to tell you the whole story.

 

Customer: replied 4 years ago.
thank you but does it matter that my BK has already been discharged? also how do I prove I was insolvent at the time the lien was placed?
Expert:  cfortunato replied 4 years ago.

1)

Expert:  cfortunato replied 4 years ago.
1) If your case was already closed, you have to re-open your case and then file the 522(f) lien avoidance motion.
2) Make a list of all your debts at the time, and a list of all your assets at the time.
Customer: replied 4 years ago.
but the 522f was filed during the bk, then the bk discharged - so you are saying to re open the CH 7 bk and that will get the tax lien released?
Expert:  cfortunato replied 4 years ago.
I forgot that you said the 522(f) motion was already filed. Obviously, it is not necessary to reopen the case to now file the motion.
Customer: replied 4 years ago.
So basically, since the bk was already discharged and I filed the 522f, all I need to do at this point is to find out when the lien was put on the home and prove insolvency and then show US 545 to the judge?
Expert:  cfortunato replied 4 years ago.
Yes - and to provide the reference to the Bankrutpcy Code (the Statute number).
cfortunato and other Bankruptcy Law Specialists are ready to help you
Customer: replied 4 years ago.
I talked to another attorney and they said this is false - 545 is for trustees and they are the only ones who can remove a statutory lien to sell a property, he said the tax lien stays with the property and there is no way for me to remove it
Expert:  cfortunato replied 4 years ago.

The other attorney is correct. I misread the statute - only a trustee can ask the Bankruptcy court to remove a statutory lien.

 

Customer: replied 4 years ago.
So is there any way of removing a statutory lien from the property? I asked 2 attorneys (one of them was you) several times on justanswer and they both said yes, but my BK attorney and this other justanswer attorney are saying it is not possible to remove a statutory lien from the property.
Expert:  cfortunato replied 4 years ago.

How much - if any - equity does your home have?

How much is the tax lien?

Customer: replied 4 years ago.
I am over $150,000 in the hole when it comes to equity - the tax lien in total is around $20,000
Expert:  cfortunato replied 4 years ago.

With tax liens (other than for property taxes), the mortgage company gets paid before the lien. Unless you think the equity in your home will increase by at least $150,000 before your house is sold, the tax lien will have no affect on your property.

However, if you do think this is a possibility, you can make a deal with the trustee to pay part of the proceeds of the house (but less than the lien amount) - say $5,000 - if the trustee agrees to file the 545 motion for you.

Customer: replied 4 years ago.
I actually kept my house through the BK though and I don't intend on selling it - won't the existing tax lien eventually force a sale on my house through the county?
Expert:  cfortunato replied 4 years ago.

You should ask that question in the Tax section.

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