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Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 31672
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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1. What does it mean when a petition needs to be filed to declare

Resolved Question:

1. What does it mean when a petition needs to be filed to declare an estate in solvent?
2. If a petition is not filed declaring the estate insolvent, and an asset is discovered after a bankruptcy has been discharged, and therefore a lien is attached what happens?
3. Can an attorney avoid the lien in declaration as there is no more assets to be awarded? 4. If all of the lien is not avoided can a person go bankrupt on this same case to release the rest of this debt and lien?
Submitted: 7 years ago.
Category: Bankruptcy Law
Expert:  Roger replied 7 years ago.
Hi - I practice in Tennessee.

1. If there are not enough assets in a person's estate to pay the claims of creditors/bills, a petition to declare the estate insolvent will be filed. In this instance, the court will direct the estate representative to pay all creditors on a pro rata basis based on their secured or unsecured status.

2. If a creditor is not listed in the bankruptcy, that creditor's claim will likely survive the bankruptcy, or the creditor can petition to have the bankruptcy re-opened.

3. If the creditor was not properly noticed, it will be allowed to re-open the bankruptcy.
Customer: replied 7 years ago.
<p>The case has already been reopened. The trustee is working on it along with my bankruptcy attorney, and estate attorney. However, my estate attorney did not file a petition to declare my property as insolvent. </p><p> </p><p>Can he go ahead and file a petition to declare my estate insolvent? I do not have anything else. the creditor was listed in my bankrutpcy, and the the opposing clients attorney they were awarded the judgement substantially alot. </p><p> </p><p>If the clients are awarded the full amount of my assets and my estate is declared insolvent even after the fact, and my attorney files to avoid the lien if all of it is not voided then can I refile bankruptcy after 8 years again?</p><p> </p>
Expert:  Roger replied 7 years ago.
If the creditor was listed in your bankruptcy, it should have been discharged. If it was not discharged for some reason, the attorney should file a petition for insolvency.

If the lien is not discharged or satisfied, you can re-file bankruptcy after 8 years (727(a)(8)) to discharge this debt.

Customer: replied 7 years ago.
<p>I was awarded a discharge; However, the clients were awarded a judgement a substatial amount of 1/2 million $$. So therefore their is a lien of this amount. Called a judicial lien....attached to my property.. </p><p>No one but attorney's and physicians can come up with that amount of money over a life time...:) </p><p> </p><p>Even if my case was discharged, my estate attorney or bankruptcy attorney can they still file for insolvency, and then avoid most of the lien even after the fact of bankrupcy? Then if it is still not enough, are u saying I can go bankrupt after 8 years again> </p>
Expert:  Roger replied 7 years ago.
If the judgement was obtained before you filed bankruptcy, it should have been discharged through the bankruptcy.
Expert:  Roger replied 7 years ago.
Debts occasioned by negligence are dischargeable in bankruptcy. Debts occasioned by intentional torts are not. Assuming the plaintiff's claim against you is for negligence, and not an intentional tort, the judgment should be discharged in the bankruptcy proceeding.

Customer: replied 7 years ago.
<p>Gosh you have alot to learn, I already told you I was awarded a discharge, however their still leaves the lien. The judgement is a considered a lien according to the statutory guidelines of the bankutcy court. The debt is gone, I do not have to pay the 1/2 million $$ but I do still have the lien. That is what I am concerned about. I am trying to get the lien lifted from my property. The 1/2 million $$ attached as a lien since the debt got discharged. </p><p> </p><p>So, with that being said, I am once again, asking you CAN my property be declared insolvent AFTER the fact of bankruptcy, since an asset has been discovered? I understand I can go bankrupt again, but will the lien still follow in lieu of the debt as before? I need to know how I can get this lien off of my property. Any other suggestions. I do not have any more assets now or ever. </p>
Expert:  Roger replied 7 years ago.
<p>I was confused as to where you were in the process. </p><p> </p><p>The survival of a lien after discharge usually applies to an item of property secured by that property. These liens pass unaffected through bankruptcy unless a court order modifies or voids them. </p><p> </p><p>A judgment lien may remain a charge on assets owned before the bankruptcy, but does not attach to assets acquired after the bankruptcy is filed. </p><p> </p><p>If this is your situation, filing a petition for insolvency won't do much good because that would only deter the collection of this debt, but that has already been done through the bankruptcy, and any asset you still have that you had at the time of the bankruptcy would still be available to creditors. </p><p> </p><p>You're just going to have to wait this thing out.</p>
Customer: replied 7 years ago.
There was no negligence or intentional torts on my behalf. There was a car accident that was a no fault on both parties. I
Expert:  Roger replied 7 years ago.
<p>The debt is not collectible against anything other than assets you owned at the time of filing bankruptcy.</p><p> </p><p>If there is an asset you had at the time of bankruptcy, and you still have it, the creditor could seek this asset to be liquidated to pay all or part of the debt. </p>
Customer: replied 7 years ago.
The asset did not come until after bankruptcy because of a death. So Adam, therefore are you saying if the asset was applied toward the debt and some of the lien is still not removed or all paid, can I file bankruptcy and then list my property as insolvent, again after 8 years...Can they the opposing side attach an additional lien? what a mess...I am in!!
Expert:  Roger replied 7 years ago.
<p>If this was an inheritance, it is possible that the asset is not even subject to the bankruptcy. According to bankruptcy law, if a debtor receives an inheritance within 180 days of filing for bankruptcy, that inheritance becomes the property of the bankruptcy estate. In this case a debtor will be required to disclose to the bankruptcy trustee and debtors that they received an inheritance. The bankruptcy law calculates the 180 days from the date of death of the person granting the inheritance.</p><p> </p><p>An inheritance receives different treatment in a Chapter 7 than in a Chapter 13 bankruptcy. In a Chapter 7 bankruptcy, an inheritance within 180 days after your case was filed, will go to the trustee without any exemptions and will be used to repay creditors. In a Chapter 13, (before or after the 180 days) an inheritance will be used to calculate how much you should pay creditors. But in a Chapter 7 bankruptcy, if the inheritance is received after the 180 day time period, the trustee has no claim to it.</p><p> </p><p>If this exception does not apply, your scenario above is correct. If there is no asset pledged for the debt (because it has already been given), the debt would be discharged and there would be no collateral for a lien to attach to.</p>
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