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I am sorry to hear of your predicament. If there is a personal judgment against you, your personal assets can be levied upon. However, the lien of the deficiency judgment does not take precedence over an existing lien on the property in question. For example, your personal home mortgage would take precedence over the lien of the judgment. This is important because the judgment creditor may not be prepared to pursue such an asset knowing that they must pay off the prior liens otherwise they foreclose themselves out of the property.
On your business that is in a LLC name, they judgment creditor has the right to receive the distributions you receive from the business that are profits. Salary you receive is subject to the statutory limitation of 25% of the pay after withholding taxes and social security.
Your IRA are exempt from execution so long as they have any anti alienation provision in them. You should make sure they do. Money in 401k plans and pensions are also exempt from execution.
On the facts you have stated, I would not abandon defense of the case even if you have to do it yourself. You have a good argument that the bank committed fraud through its bank officer and that the debt itself is the product of fraud in which the bank officer conspired. Your goal is to get to tell your story to a jury. The new bank may decide to settle by just taking the property. If you indicate that you will fight, they may be more reasonable.
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The new bank hasn't actually requested a judgement hearing date, but sent docs indicating their intention. Which is why I'm undecided whether to settle or pursue jury trial. They want more than I feel is reasonably theirs, considering what I found had gone on for several years with our loans with this banker. I feel the original bank made more than their share of our money on previously satisfied loans.
Last question, related to the land we hold for timber management, which is under a 2 year contract to clear cut. Should SB&T move forward with pursuing a judgement and win (I'm truly trying to be proactive.We may not get to this point, but I want to understand my rights and be prepared for the outcome), can they pursue taking possession of this land to satisfy the amount of debt they are anticipating.? Or is this land secure until the lumber contract is completed? We've already been paid for 75% of the sale of the timber, so I would think because it's a binding and registered contract, they would be less likely to go for it. Your thoughts.........
If they levied on this land it would be subject to the contract. They would have to put the land up for sale subject to the contract. Alternatively they could collect the remaining amounts due you under the contract. You might consider putting the land in a LLC which would limit their ability to force a sale. This area can get technical and you would need to speak to an attorney to discuss all the issues but it would certainly slow them down on the land.
If this answer is responsive to your question, please accept it. That is how we are compensated. I would also be appreciated if you provided feed back on your view of the answer. Finally, if the answer was especially helpful you can provide a bonus. If I can be of further assistance or you have other questions in the future you can ask for me and reach me at this site.This communication is not intended as legal advice. A local attorney should always be consulted for legal advice. No client/attorney relationship is intended or created by this communication.
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