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I went chapter7 in 2003 and was dischared in 2004. Discover

Customer Question
card had put a lean...
I went chapter7 in 2003 and was dischared in 2004. Discover card had put a lean on my home for what i owed them and got a judgment for it . Now 5 years later i find out they never took the lean off of my home and the county still has it out standing when it should have been satified due to the discharge. I am tring to refinance my home and can't because of the lean.How can I get it taken care of and do I have any recorse againist discover.
Submitted: 8 years ago.Category: Bankruptcy Law
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Answered in 10 minutes by:
11/2/2009
Bankruptcy Lawyer: DCrane Law, Attorney replied 8 years ago
DCrane Law
DCrane Law, Attorney
Category: Bankruptcy Law
Satisfied Customers: 25,285
Experience: Experience in this area derives from assisting corporate clients in complex restructurings.
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to be clear, was the debt listed in the bankruptcy?
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Customer reply replied 8 years ago
Yes i had 3 discover accounts that were listed and they were discharged.
Bankruptcy Lawyer: DCrane Law, Attorney replied 8 years ago
To get the lien removed, you will need to file a petition with the bankruptcy court.
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Customer reply replied 8 years ago
How long will it take for them to remove it going that route
Bankruptcy Lawyer: DCrane Law, Attorney replied 8 years ago
It would take approximately 3 months. Also, I might add, per Jay1968, you would have to pay the reopen fee to the BK Court which is $260 along with the motion to reopen, then then file a motion to avoid the lien (11 USC 522(f)), and there is a 20 day objection period. Assuming no objection is filed (creditors pretty much never object), you will get the order removing the lien after the 20 day period runs.
DCrane Law
DCrane Law, Attorney
Category: Bankruptcy Law
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Experience: Experience in this area derives from assisting corporate clients in complex restructurings.
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Customer reply replied 8 years ago
I thought federal law supersedes state and county law when dealing with bankruptcy and liens and why wasn't that taken off when the bankruptcy was discharged? Who do i go to complain that it wasn't done.I feel like i have been done a mis justice here. Now I can't refinace my home and all the work I have done to qualify for my loan is all wasted because of all this.
Bankruptcy Lawyer: JoeLawyer, Attorney replied 8 years ago
JoeLawyer
JoeLawyer, Attorney
Category: Bankruptcy Law
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Experience: Attorney in the practice of Bankruptcy Law since 1996
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Hello doc:

Federal law does supercede state law, but liens still do not go away in bankruptcy unless a special motion is filed during the case (called a Motion to Avoid Judicial Lien) to remove them (see 11 USC 522(f)).

So, either you didn't know about the lien during your Chapter 13 (in which case I assume you would have filed the motion), or the lien attached after the case was over.

The lien should not have attached after the case was filed since this is a violation of 11 U.S.C. 362, but sometimes they do.

So, if Discover did inappropriately attach the lien after your bankruptcy, you can tell them they had better remove it since it was a violation of the Bankruptcy Code.

If they won't remove it, or if it was on there from before your bankruptcy, then you will probably have to reopen your case and file the motion to get rid of it.

Sorry, wish I had better news. But I guess at least the fact that you can get rid of it, even if you have to jump through some hoops to do it, is good news...

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.
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