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cfortunato
cfortunato, Attorney
Category: Bankruptcy Law
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Experience:  Bankruptcy professor.
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Under §547(b) of the Bankruptcy Code, which governs Preferential

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Under §547(b) of the Bankruptcy Code, which governs Preferential Transfers, a Trustee may avoid any transfer of interest of the debtor's property if all of the following conditions are met:
1) The transfer was for the benefit of a creditor;
2) For an antecedent debt owed before the transfer was made;
3) The debtor was insolvent at the time of the transfer (case law presumes insolvency during the 90 days prior to filing the bankruptcy petition);
4) The transfer was made within 90 days before filing the petition (or one year if the transfer was to an "insider", i.e. family member or business partner);
5) The transfer enables a creditor to receive more than they would have received in a Chapter 7 liquidation if the transfer had not been made.

does this apply to an assignment deed of trust? if my exemption is more than the value of the property?
Hi JACustomer,Section 547(b) applies to transfers of the debtor's interest in property only. A trust deed assignment is a transfer of a creditor's interest in property, not a transfer of the debtor's interest.Accordingly, section 547(b) does not apply to a trust deed assignment.I think this is what you wanted to know. If not, please let me know.Thank you.
Customer: replied 4 years ago.
i am currently writing a motion to avoid judicial lien on real estate and I have been looking for 2 hours for the local bk rule allowing motin to be decided without a hearing unless the creditor objects, does it exist? or do i have to do a self-set hearing?

Although your new question is unrelated to the first question, I would provide the answer if I knew it, but I do not. You should start a new question so someone else can answer it.

Thank you.

Customer: replied 4 years ago.
ok, well relating to first question. if i put an unsecured 2nd lien on schedule F in a ch 7, and it gets discharged, can they still collect or 4 close? or if they don't object and its discharged, is it ALL discharged?

What is the basis for the unsecured second lien?

Customer: replied 4 years ago.
it is a recorded abstract judgement by a debt collector for a medical bill of 9k and it encumbers my homestead exemption. also there is an unperfected lien, but i haven't gotten that far yet. i was listing the judicial lien under 522(f)(1)(A) and 522 (f)(2)(A)(i-iii) is that correct, and I found local rule 9013-1(g)(1), but i do have to set a hearing correct? but I don't know if I have to give 28 or 30 days notice and bk will be discharged next week, but is that ok?

1) Having the underlying debt discharged is not sufficient to prevent a foreclosure. It is also necessary to have a hearing to have the lien avoided.

2) Those 522(f) sections are correct.

3) It is okay if your Bankruptcy is discharged before the hearing, because your case will still be open, and will remain open until after the hearing.

Customer: replied 4 years ago.
does the stay remain even if case is closed and a hearing is coming up? and I was listing a deed of trust that was recorded 30 days before I filed and is from a debt collector and not the foreclosing beneficiary in sch F not sch D, is that ok? or if i list them as a wholly unsecured debt in sch f, does that constitute them as unsecured and they would have to object? would i have to have an avoidance lien 522(h)(1 & 2) for the junior lien? even if it's not my homestead?

The stay remains in effect until the case is closed. Your case will not be closed until after your hearing.

Customer: replied 4 years ago.
ok, thank you, XXXXX XXXXX can file my motions to avoid the liens, a week before the last day to object and give the creditors sufficient notice? do you know if its 28 or 30 days in CA or 14 days notice? and do i have to motion for a mtg to be avoided because it gets in the way of my homestead exemption even though they dont have a recorded lien?

You can find out the notice requirements for your particular Bankruptcy court by calling the court clerk.

Customer: replied 4 years ago.
lastly I was wondering, and do i have to motion for a mtg to be avoided because it gets in the way of my homestead exemption even though they dont have a recorded lien? since they never had a lien (recorded) to begin with or does the fact that I had a mtg with them constitute a lien? or should I just put them on Sch F instead of D?

A mortgage lien does not have to be recorded to be valid. The fact that you have a mortgage means the mortgage company has a mortgage lien on the property. Mortgage liens cannot be avoided - only judicial liens can be avoided.

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