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Does anyone know how to remove lien on my primary home for

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Does anyone know how to remove lien on my primary home for debt judgment?

William B. Esq. :

Dear Customer, thank you for choosing Just Answer. I would like to assist you today.

William B. Esq. :

If the judgment has been paid in full (or satisfied through settlement or some other form of agreement), there is a California Courts Judicial form that must be completed by the Judgment Creditor called a Satisfaction of Judgment (http://www.courts.ca.gov/documents/ej100.pdf). Once the Judgment Creditor has filed this with the Court the Creditor is required to record a copy of the file stamped satisfaction of judgment with the County Recorder's Office.

William B. Esq. :

(My apologies it is not just a "file stamped copy" it should be a "certified copy" of the satisfaction of judgment that must be recorded).

Customer:

I heard from some attorney while ago that if a lien on a primary home, there is a way to remove it even the judgment not been paid. Is it true?

Customer:

Also I have another question. let's assume that I got an arrest warrant for the fraud charge(debt collection issue), how long will the arrest warrent last? When the debt get canceled after 20years (statute of limitations), the arrest warrant get canceled as well? If so, automatically or I have to request to cancel it?

William B. Esq. :

ear Customer,


 


There is no special mechanism to remove a lien from a primary home. However, if the debt is 20 years old, and the judgment creditor has failed to renew the judgment (judgments in California must be renewed every 10 years), the lien is no longer effective, and you can file a motion with the Court asking that the Court issue an order rendering the judgment void so that it can be recorded with the County Recorder's Office thereby voiding the judgment.


 


Regarding the question for an arrest warrant, you will need to post that question in a separate post for one of our criminal law experts to assist you with.

Customer: I heard that you can renew after 10 years but no more after 20years(statue of limitation). Is that true? Also if they failed to renew, how is the success rate when you file a motion with the Court asking that the Court issue an order rendering the judgment void?
William B. Esq. :

You can continue to renew every 10 years without limitation. The success rate is (should be) 100%. There is no statutory basis to maintain the lien after the judgment is stale. The judgment creditor's failure to renew the judgment is critical to maintaining their ability to collect.

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Customer: replied 4 years ago.

Does lien ever expire? If so, creditor has to renew it to keep the lien on my primary home?

The judgment lien expires in 10 years unless it is renewed by the judgment creditor (CCP 683.170 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=683.110-683.220).
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Customer: replied 4 years ago.


What's going to happen to my home when I pass away and still lien on it? Can I change the ownership to my son some how? Or will my son get the home as inheritance?


 

The lien must be satisfied whenever the property changes hands (either through a sale, refinance, or transfer of interest).

If you were to deed the property at the time you pass away, the property would be part of your estate, and the lien/judgment would have to be satisfied out of the estate in probate.

If your beneficiary wished to retain the property, they could have the option of taking out a mortgage on the property to pay off the judgment lien and getting the property subject to the mortgage.
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Customer: replied 4 years ago.

Thank you for your answers.


 


What about normal debt(non judgment)? Do they ever get canceled or renewable as well by creditors?

Debt that is not secured by a judgment cannot be collected through judicial means after the statute of limitations has passed (in California it is 2 years for oral contract and 4 years for written). Meaning - if you have a credit card debt and fail to pay for 5 years, the credit card company cannot use judicial means to enforce the debt (you still owe the company, but it really can't do anything about it).

If you have a mortgage though, the bank has a real property interest through the mortgage, so that does not go away (the mortgage itself is treated separately from the loan, which again, you still owe). (Mortgages get a little trickier).
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Customer: replied 4 years ago.


I had a mortgage loan and SBA loan from a building that used to own but had to foreclose it. Are these two loans are canceled when it foreclosed?

Only primary residence mortgages are "non-recourse" in California, so if these mortgages were for business properties, or rental properties, the mortgage loan would still be enforceable against you. The lender would have to take action to actually be able to enforce the loan against you in court however (the 4 year statute).

Also - check the loan documents, some mortgages, even for non-primary residences - are non-recourse only because of the way the contract is written.
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Customer: replied 4 years ago.


Take action means filing law suit against me? If so, no banks or SBA filed law suit against me. if they do, I will receive court documents right? Also SBA is a government loan, is it treated the same way as mortgage loan with the 4 year statute still?

Yes, they must file a civil lawsuit against you, and you will receive a service of summons.

You are also correct regarding the SBA loan. It is treated differently than other loans due to the federal nature of the loan. If my memory is correct, SBA has a 6 year statute of limitations. You would still receive a summons and complaint if the feds or the bank that issued the SBA loan intended to pursue collections on it.
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Customer: replied 4 years ago.


I'm sorry but it's little confusing. Earlier you said that "If you have a mortgage though, the bank has a real property interest through the mortgage, so that does not go away"


 


But it sounds like if they don't file a law suite with in the Statute, they can't enforce the debt.


 


When you said "so that does not go away" what does that mean?

When you get a bank loan for real property with a mortgage lien, the lien is recorded on the title. Unlike an unsecured lien, it is already recorded, and secured, they do not need to go through the judicial process to get the loan secured. The secured lien is not removed from the title unless the lien holder (creditor) removes it. ("it does not go away" - my apologies it was probably a poor choice of words).
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Customer: replied 4 years ago.


you mean the lien on the building that I used to own? I had to foreclosed the building. This means the lien is gone with the building. So they can't enforce the debt if they don't file a law suit with in the time of statute right?


 


Can SBA loan put lien on my personal property with out judgment?


Also any other non judgment debt's can't put lien on my home right?

Mortgages are just contracts, so each mortgage can be different.

HOWEVER - most mortgages only attach to a single property, or set of properties. This means that in most situations, if your property was secured by a mortgage lien, and the lender foreclosed on the property 5 years ago, but has not filed a civil lawsuit to collect on the remainder, there is no further recourse that the lender can take on the mortgage. (You may still "owe" the money, but there is nothing they can do to enforce it).
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Customer: replied 4 years ago.

Can creditors only put lien on my home if they got judgment or can they still put lien on my home? Which means they have to file law suit to get judgment and then put lien on my home?

You can only convert an "unsecured lien" (like a credit card or store line of credit) to a "secured lien" (like a mortgage or lien on real property) through a court judgment, or if the debtor agrees to it in writing.

Your unsecured creditors must file (and win) a lawsuit against you in order to be permitted to file a lien against your property.
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Customer: replied 4 years ago.

Is there a way to find out if a judgment debts are renewed after statute?

You have to be served by the Judgment Creditor (the same type of service as you would receive with the initial lawsuit).

If you have any question regarding this (relying on another party to serve you is not always the surest thing), you can go to the Court and request to see the copy of the Court Docket for your Case, and/or you can go to the County Recorder's office and do a title search (paying a title company or escrow company a small fee is usually worth the nominal fee, they have access to the database electronically, and they can do it for you quickly and comprehensively while you would have to search both the property and your personal records at the recorder's office with a margin of error).
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Customer: replied 4 years ago.


Is federal back tax debt considered judgment debt? if not if they don't file law suit against me with in the statute(10years), they can't enforce the debt?

yes that would be in the court docket. however there should not be such a document, even an uncontested petition is still examined by the judge, and the day of judgement being entered is very clear in 10 years is very easy to calculate.
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Customer: replied 4 years ago.


So you are saying the debt is considered judgment debt right? if so, Will they renew the debt after statute?

My apologies, I am going to have to back up. I misread your prior question (I was trying to catch your reply on my handheld).

Federal tax payments are a little different. They are not considered judgment debts (I apologize for my mistake above). There is a 10 year statute of limitations that applies to these claims by the federal government for back taxes that is separate from breach of contract and civil litigation/judgment statutes.

The federal government has 10 years to enforce these tax liabilities, which can include seizure of real property (but in practice this seldom happens absent significant equity in real property to make the seizure worthwhile.

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Customer: replied 4 years ago.


how about after 10years, can they still enforce the debt?


 

Not unless there is an issue of fraud, or if they have decided to invest the time and money into going to court and getting a judgment against property (again this usually only happens when there is substantial assets, but the agency does have discretion)
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Customer: replied 4 years ago.


Is California state back tax debt treated same as Federal back tax debt?

California actually has a further "reach back" period and the statute is 20 years from the time the tax becomes "due and payable". In other respects it is like the federal tax structure.

(Prior to 2006 there was no statute of limitations and the state could collect at any time).
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Customer: replied 4 years ago.
This means, they can't enforce the debt after 20years?
That is correct. (Assuming they do not file an enforcement action before the 20 year deadline, the FTB loses its claim).
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Customer: replied 4 years ago.
What's the possibility they file an enforcement action? Also some Atterney told me before that the CA state back tax debt never get canceled. Not true then right?
I can't guess as to the probability of enforcement, that is really a discretionary call by the agency. If you calculate your debt like a business decision, meaning does it make good business sense to take the time and spend additional money to get a lien that will usually take years to collect.

The attorney was right up until 2006 when the state passed the new statute limiting state action.
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Customer: replied 4 years ago.


Can they put lien on my primary home to collect either Federal or California state back tax debt?

Yes they can. (It actually happens quite often for unpaid property taxes. Unpaid income taxes are less common, but it is possible.
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Customer: replied 4 years ago.

Can a creditor check if there are liens from other creditors on my primary home?

Yes, a title report from an escrow company or title insurance company will show all liens on your property (there will also most likely be a number of easements for power and utility access, but these are not liens on your property, just rights of access).

Again, a creditor cannot place a lien without an express contract where you place your home up as collateral (a "secured loan"), or after going to court and getting a judgment. County Recorders are very diligent about checking these records before they are recorded, but it is possible one may slip through. Just because the document is recorded in error does not mean that the loan will actually be enforced like a secured lien (they have to actually have the right to enforce it).
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Customer: replied 4 years ago.

Does this mean a creditor can find out if there are other liens on my primary home already?

Yes, this is public record.
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Customer: replied 4 years ago.


I met with local bankruptcy attorney in LA CA yesterday to ask about my judgment debt. He said I don't have to worry about paying that debt after 20years. Is that true?


 

Dear Customer,

I want to defer to local counsel (particularly bankruptcy or insolvency counsel) as they can review your specific facts and situation.

As a general matter, judgments can continue to be renewed every 10 years (they must be renewed before 10 years expires, and they can be renewed every 5 years). The Code of Civil Procedure regarding renewal of judgments can be found here: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=683.110-683.220

But again, if you have local counsel that has reviewed your situation specifically, I would defer to their advice and counsel as I am limited to giving you general legal information and cannot give you specific legal counsel or instruction through this website forum.
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Customer: replied 4 years ago.


does ths civil code apply California?

That is the California Code of Civil Procedure (it only applies to California - state cases, not federal).
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Customer: replied 4 years ago.


Do I have to worry about a judgment debt after 25 years?

Yes, so long as the judgment debtor continues to renew the judgment in a timely manner, the judgment can be renewed perpetually.

The judgment must be renewed every 10 years, if the judgment creditor allows the judgment to go 10 years plus 1 day from the entry of judgment, or the date of the last renewal, the judgment is no longer enforceable.
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Customer: replied 4 years ago.
There is a judgment debt lien on my primary home. When i pass away, will my son inherit the home. if so, does he still have to pay the lienholder off?
Customer: replied 4 years ago.
There is a judgment debt lien on my primary home and some atterny told me that If I don't sell the home, and my son inherits it, he doesn't have to pay the lienholder off. Is this true?

That is not true, the lien attaches to the property, not to you.
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Customer: replied 4 years ago.
Would it be possible to inherit the home to my son? Understand the lien will be still there.
This transaction may pass unnoticed, however more likely than not, your property lien would be noted in probate and would have to be settled prior to the transfer.

My answer would be yes, it is possible, but it is unlikely that it would be successful, the the lien would likely be noticed.
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Customer: replied 4 years ago.
I heard a judgment debts's interest rate is 10%. Is this APR rate? Let's say the debt is 100,000. Then the interest is 10,000 a year?
Dear Customer,

My apologies for the delay, I have been experiencing some difficulty with the site.

Interest is added at 10% simple interest. The Contra Costa Court website has a helpful web page with a calculator and examples that may be helpful: http://cc-courthelp.org/index.cfm?fuseaction=Page.ViewPage&pageId=4889
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Customer: replied 4 years ago.


if there is a debt and statute of limitation is 4years for the debt. Does this mean I don't have to worry about that debt anymore after 4years? or can they still collect it by withdrawing from my bank account or....?

The statute of limitations applies to the creditor's ability to file a lawsuit. This means that if you fail to pay on a debt on January 1, 2012, the creditor may file a lawsuit at any time up to January 1, 2016.

The creditor may collect for as long as the judgment is valid (meaning 10 years from the date judgment is entered, plus every 10 years after the judgment is renewed).

Unless you have a secured debt, a creditor may only levy on your bank account, garnish your wages, place a lien on your property, or levy your personal property after they receive a judgment.
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Customer: replied 4 years ago.

What if they don't file a lawsuit and passed 4years. Then I don't have to worry about that debt anymore after 4years? or can they still collect it by levy on my bank account, levy my property and garnish my wages and etc ...?

That is correct. The debt is still valid (you still owe the money), but the creditor can no longer sue you for the money, and can no longer use judicial processes to collect. They cannot levy your bank accounts, they cannot garnish your wages, they cannot collect on your real or personal property.

While the debt may still be good, they cannot take any judicial action to enforce it.
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Customer: replied 4 years ago.
When you file chapter7, I heard that judge can sell my primary home to pay my debts. If it's sold, will I get some money and how much? Also which debts are going to be paid first or will get paid equally? There is one judgment lien on my primary home and will this be paid first when it gets sold or?
That is correct. Your primary residence can be sold as part of the bankruptcy estate. You are entitled to keep a portion of the funds from the sale as a "homestead exemption".

The way this works is that if a home has a lien against it with equity existing that is greater than that lien, the bankruptcy trustee can sell the home, pay the lien off, the costs for the trustee's sale will be deducted, you will receive your homestead exemption, and the remainder will go to pay your unsecured creditors.

The homestead exemption in California varies somewhat depending on your exact situation, and what exemptions you elect to take. Here is a short article describing the California homestead exemptions: http://www.nolo.com/legal-encyclopedia/the-california-homestead-exemption.html
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Customer: replied 4 years ago.

Before, some attorney told me below is the order that pays debt with the money from selling my primary home. it is important for me to know if the lien(judgment debt) get paid first before others because I'm planning to negotiate with the judgment debt creditor who put lien on my primary home. if they think they will get paid first before other creditors, they would not want to negotiate but wait until my home get sold I think. Also there were back tax debt and other judgment debt(no lien on my home) before this lien(judgment debt. Will these get paid before the lien(judgment debt)?


1. auction costs.
2. attorney fees
3. primary debts under bankruptcy
4. any secondary mortgages and liens and encumbrances under the property. this includes the judgment lien that you are describing.

Was this judgment lien for a tax debt? (Taxes get a priority in sales)
Here is the order of priority (California Code of Civil Procedure - you would receive your exemption on # XXXXX):

704.850. (a) The levying officer shall distribute the proceeds of
sale of a homestead in the following order:
(1) To the discharge of all liens and encumbrances, if any, on the
property.
(2) To the judgment debtor in the amount of any applicable
exemption of proceeds pursuant to Section 704.720.
(3) To the levying officer for the reimbursement of the levying
officer's costs for which an advance has not been made.
(4) To the judgment creditor to satisfy the following:
(A) First, costs and interest accruing after issuance of the writ
pursuant to which the sale is conducted.
(B) Second, the amount due on the judgment with costs and
interest, as entered on the writ.
(5) To the judgment debtor in the amount remaining.
(b) Sections 701.820 and 701.830 apply to distribution of proceeds
under this section.
Customer: replied 4 years ago.


judgment lien is not the tax debt but there was a back tax debt prior to this judgment lien. which one will get paid first? the back tax debt is probably a judgment debt as well right?

The tax debt is most likely an "encumberance on the property" (meaning it will be paid in the number 1 position (at the same time as any mortgage lender, and before you receive your homestead exemption).

The judgment lien will be paid after you get your exemption, then the levying officer is paid, then the judgment creditor is paid, and if there is anything left, you will receive the residual.

Keep in mind, this is for a foreclosure sale by the judgment creditor (meaning if you force them to levy on your property in order to get paid), it is not necessarily the same sequence for bankruptcy planning, if you do decide to look at bankruptcy and have sufficient equity in your home to support a homestead exemption, I would advise speaking with a bankruptcy attorney well in advance of filing so that you can create a strategy as to how best to approach this. You can maximize your bankruptcy with good bankruptcy planning.
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Customer: replied 4 years ago.
Even the tax debt is not lien on my property, it will get paid before other judgment lien debts? Also I will get my exemption before the judgment line debt? And this is the way when I let My primary home get forclosed right. For example, I can't make mortgage payments for many months n the bank decided to forclosed it right?
This is very different from a foreclosure. When a bank forecloses on your home, it does so because you have not made payments on its secured interest in your property. When you fail to do so, it simply takes over the property through the foreclosure (it is an encumberance, you do not get a homestead exemption in a foreclosure).

If the tax debt is for property tax on the property, it will be paid before the homestead exemption is paid out. If it is an income tax debt (or a tax debt for another property, or enterprise), it will not be part of the sale (you say there is no judgment). If there is a tax judgment that is unrelated to the property it will come out after the homestead exemption (you get your money first).
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Customer: replied 4 years ago.

Thank you for your answer but it's little confusing. Because you said earlier "The way this works is that if a home has a lien against it with equity existing that is greater than that lien, the bankruptcy trustee can sell the home, pay the lien off, the costs for the trustee's sale will be deducted, you will receive your homestead exemption, and the remainder will go to pay your unsecured creditors." but later you said "The tax debt is most likely an "encumberance on the property" (meaning it will be paid in the number 1 position (at the same time as any mortgage lender, and before you receive your homestead exemption).The judgment lien will be paid after you get your exemption, then the levying officer is paid, then the judgment creditor is paid, and if there is anything left, you will receive the residual."

 

Please tell me which debt gets paid first when I file BK and judge ordered to sell my primary home to pay debts. back tax from IRS for non payment of 941tax, judgment debt lien on my primary home, or homestead exemption?

Your mortgage creditor comes first, plus any recorded encumbrances, then trustee fees, homestead exemptions, then other debts including you tax debts.

Here is a helpful article about the bankruptcy process, it has a good explanation related to primary residences (it is Utah law so insert California exemptions above: http://www.utahbankruptcy.com/chapter_7_brochure.htm).

But be aware your tax debts may not be subject to a discharge so you may emerge from bankruptcy and still owe those debts. (http://www.nolo.com/legal-encyclopedia/bankruptcy-tax-debts-eliminating-29550.html)

I would highly recommend a bankruptcy attorney to help you as the formula can be calculated to maximize your benefit and the variables are not as easy to identify through this type of forum(you really need someone who can look at your assets and debt and help you come up with a plan, particularly when real property is involved).

My apologies for the confusion in my earlier post.
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Customer: replied 4 years ago.

What if my home doesn't get sold at auction by court order while BK, how it's going to be sold?

I'm not quite sure I understand this scenario. If you have real property, and you declare bankruptcy, the property will be sold or transferred (if you are in a liquidation - Ch. 7) or refinanced (Ch 13).

Assuming you file a Chapter 7 you have the following options:
(1) The lender with the mortgage on the home will get the title to the property, you will be evicted, and the bank will be able to sell the property to satisfy the lien (this is most common, and there is no residual).
(2) The trustee will sell the home, the mortgage lender will get paid off, and the debtor will receive part or all of the homestead exemption - the remainder will go to pay unsecured creditors (this is rare, but some debtors have significant equity in their properties and simply use bankruptcy as a way to pay off their debts).
(3) If you are in a unique situation, you can restructure your debt through a planned sale to a specific buyer, with the approval of the trustee and bankruptcy court. (I have done this once - it was a complex matter, all creditors were paid off, the trustee and the trustee's attorney received 100% of their fees).

If you are in a Chapter 13, you will be able to restructure your debt based on your income, and you can make payments over a period of 5 years (a very small number of debtors qualify for a 3 year plan), and you can keep the real property by keeping or "affirming" the mortgage lien after the bankruptcy - meaning that once your bankruptcy is over, you will continue to pay on your mortgage.

Please let me know if this answers your question. All sales of real property in bankruptcy will require the court's approval.
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Customer: replied 4 years ago.

If there is a lot of equity, the judge will order to sell the home at auction first to pay debts I heard. but since there is a lien judgment debt on the home and also the price of the home is so high over $1million, it won't sell easy at auction. So if it doesn't get sold at auction, what's gonna happen to the home. sell on a housing market like any other home?

The home will be sold, it may not be sold at auction, and the trustee has a lot more discretion than the judgment creditor under California lien enforcement statutes (they can conduct a traditional marketing and sale of the property instead of a sheriff's auction. They may also come to an arrangement among the creditors for the distribution of interests in the home (although it will almost always be sold, particularly if the equity is in the $1 million range).
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Customer: replied 4 years ago.

I have a 300,000 judgment lien on my primary home. loan balance is 1.1mill and the current market value is 1.5mill if sold at normal housing market. can you advice what to do to resove the 300,000 judgment lien issue?

While I am not allowed to give specific legal advice through this site, most judgment debtors in this type of situation are able to do two things (1) access sufficient capital to make a lump sum offer that satisfies the judgment creditor for less than the full judgment value - the trade-off is that the creditor does not have to chase down the money; and (2) take out a loan against the property for an interest rate far below that allowed under the legal rate for a judgment - currently 10%.
I hope that is of some assistance, I cannot tell you that it is appropriate for your situation, but it may give you some starting points.
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Customer: replied 4 years ago.


Can you take out a loan agianst the property while there is a judgment lien on it?

Yes you can. Particularly when there is sufficient equity to cover both the judgment and the loan.

However, when you are working the loan specifically to pay off the judgment (a "refinance") it is usually easier. Most debtors make use of smaller banks, credit unions, or individual lenders (I prefer the first 2 if at all possible).
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Customer: replied 4 years ago.

The creditor want to meet me at a court for me to provide things like bank statements, financial statements, lone documents and many more to proceed to collect the debt. My local attorney advise to meet them myself. He said that it's easier not to provide all the thinks that they asking for if I meet them myself. Can you please advise if it's better to meet them myself or with an attorney? Any pros and cons?

I assume this is an "Order of Examination" where you will be required to appear before the Court and swear an oath that you will provide documents and testimony as requested by the creditor.

If you appear with an attorney you can assert any appropriate objections. If you appear without one, you more likely than not will be unaware of whether or not you are permitted to object. (Generally there are not many objections you can make at these hearings, and the creditor really is only interested in your assets and income, and will not be interested in anything else). If there is a dispute over whether or not you should answer something, it can be put before the judge for a decision.

I have taken these examinations where the debtor appeared with an attorney and without an attorney and there was little difference, but that is only general experience and your case may be different and there may be some facts or factors where having legal counsel present would be important (ongoing litigation where attorney client privilege is important would be one good example).

I do not want to question your local counsel without knowing all of the facts, but I would be skeptical of omitting documents demanded by an OEX unless there is a valid legal objection. You are required to bring everything asked for that pertains to the collection of the debt, this includes documents in your possession, and documents in your "possession or control" such as those documents held by your attorney, your accountant, or other such agent.
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Customer: replied 4 years ago.

I was told that since it cost a lot of money to get bank statements, I can let them get the bank statement copies for themselves from my bank. And they have to pay the bank to get them. Other agents, for example, lets say my CPS charges small fee to get copies of something like financial statements or tax filed report. Can I also ask them to get themselves' or?

That is usually acceptable - making the documents available - but you need to notify the opposing party prior to the examination as the purpose of the examination is to question you, including questioning you about the content of the documents. If they choose to get copies of the documents (or pay for them) prior to the exam, they can do so, then include that information in their exam, if they do not, that is their decision.

The risk is that if you do not do so, and only offer them at the time of the exam, the exam can be continued to a future date and you can be asked to come back for a further exam.

(I just would make sure that you do make the documents available, and identifiable, you do not want to be in a position where you have hidden or omitted them).
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Customer: replied 4 years ago.

So you are saying if I don't have in my possession and it cost money to get, I have right not to get it myself but making it available for they to get it right? What if it doesn't cost money, do I still have right not to get it myself but making it available for them to get it?

If you can get your last 6 months of bank statements printed off line (for example) you should bring it with you.

If they are asking for 2 years worth of canceled checks that you will have to go pay money for at the bank (again for example) you can easily call them and tell them if they want them they will need to pay for it.

You can argue those requests for 2 years (for example) are overly broad for the scope of collecting the debt - they are only entitled to those documents calculated to collect the debt - if you get large infusions of cash, or make large payments at irregular periods, 2 years may be reasonable, while for most people, 3-6 months is more reasonable.
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Customer: replied 4 years ago.

Thank you for your answer. Your advises are very helpful.


 


What if they ask to bring some financial statements and some other sensitive ones that can get from my CPA at no cost. Do I have to provide or can I ask them to get them from my CPA and I make the available. Just to try to make it hard for them to get them.


 


 

You are responsible for producing all documents requested. If you make arrangements for documents to be copied in advance that can work as a substitute. Voluminous documents often drive these arrangements.
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Customer: replied 4 years ago.

if a foreclose date got set to sell the home, will lien judgment creditors get notice? If so, how?

A judgment creditor can file a "Request for Notice" with the County Recorder's Office. (http://law.onecle.com/california/civil/2924b.html). The foreclosing lender will then have to send the creditor notice of the intent to foreclose.
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Customer: replied 4 years ago.

Do most judgment creditors file the request of notice?

Not necessarily. Usually creditors do so if they have a recorded lien. (either one with an actual lien (mortgage, equity line of credit, etc.), or simply one that is recorded with the County Recorder's Office). Creditors and Judgment Creditors that fail to record their liens, or those that do not do property searches so they are unaware of what property is owned by the debtor, do not.

Some judgment creditors simply do not because they are not willing to waste time and energy in a foreclosure sale, and would rather just wait for a judgment to be paid on a refinance or traditional sale of real property, which does not require notice of foreclosure. (It really depends on the creditor).
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Customer: replied 4 years ago.

Do you think it's possible to discharge the lien judgment debt(default judgment with fraud charge) which is the $300,000 through bankruptcy

Customer: replied 4 years ago.

Do you think it's possible to discharge the lien judgment debt(default judgment with fraud charge) which is the $300,000 through bankruptcy?

It is possible to discharge some debts for fraud. However, fraud is one of the exceptions to discharge ability in bankruptcy (see BK Code 523: http://www.fraudlaw.org/Definitions%20and%20concepts/Law%20by%20Topic/Bankruptcy/Bankruptcy%20523%20exceptions%20to%20discharge.htm).

If you are looking at getting rid of debt based on fraud, you should consider counsel, the way in which the fraud is "couched" when you file your bankruptcy petition is extraordinarily important.
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Customer: replied 4 years ago.
If the 300,000 judgment debt is not fraud charge but just judgment debt, is it dischargeable through Bancruptcy?
Customer: replied 4 years ago.
If the 300,000 debt is just judgment debt but no fraud, is it dischargeable through BM?
If your judgment debt does not appear on that list (the 523 list that I gave you the link to), it can be discharged in bankruptcy.

This includes judgment debts for tort liability (negligence such as car accidents, professional liability, negligent misrepresentation), breach of contract (credit card debt, warranty liability, etc.).

It does not include most debts for intentional conduct: fraud, battery, assault, slander, intentional infliction of emotional distress.

It does not include debts for family obligations: spousal support, child support, etc.
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Customer: replied 4 years ago.
I heard that If I try to include high amount 300,000 debt, the creditor will most likely open a adversary hearing. Would it be hard to discharge it through adversary hearing?
An adversary proceeding is simply a lawsuit within the bankruptcy proceeding. In this case the creditor could object to whether or not the debt is subject to discharge under the standards identified in Section 523 (and interpreting case law).

The case must be filed within 60 days of the first date set for the meeting of creditors (this means a creditor can lose simply by failing to file the complaint on time).

You can find the governing rule here: http://www.law.cornell.edu/rules/frbp/rule_4007

And a brief description of the types of debt that are deemed non-dischargeable or those claims which are challenged here: http://www.nolo.com/legal-encyclopedia/nondischargeability-complaints-bankruptcy.html

A debt like one we have been discussing, a judgment for claims that may be categorized as fraud is a common in bankruptcy where the bankruptcy court will be asked to make a determination as to whether or not the debt is actually based on fraud and therefore not dischargeable, or if it one that is based on negligence or other dischargeable debt.
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Customer: replied 4 years ago.

I heard that once a judgment is made, it's hard to change the judgment's result. But in this case, the judgment was a default judgment, so it won't affect if I have to prove it wasn't fraud in the adversary proceeding?

The default judgment does not necessarily render the judgment dischargeable. The issue is whether or not the Court made a finding of willful conduct in the default judgment (was there a finding). If there was no finding, the bankruptcy court must start over with the case and make its own determination.

Here is an article (it is a little convoluted, but it has a lot of case law to assist you if you require it) regarding this issue precisely: http://www.plaintiffmagazine.com/May12/Cook_State-court-default-judgments-trump-the-bankruptcy-discharge_Plaintiff-magazine.pdf

However, even the bankruptcy courts have published conflicting law on this subject (you can find a link here): http://www.canb.uscourts.gov/judges/newsome/discharge-and-dischargeability-%E2%80%94-general-principles-%E2%80%94-collateral-estoppel-res-judicat#5

If there are multiple causes of action, including negligence or breach of contract (subject to discharge) and intentional causes of action (fraud etc.) not subject to discharge, and there is no finding of fact as to the intentional conduct, and no award of punitive or exemplary damages, it would be more likely that a bankruptcy court would find that the default was awarded based on the dischargeable causes of action as opposed to the nondischargeable ones.

In either case, the creditor would have to appear and contest the adversary proceeding.
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Customer: replied 4 years ago.

How much equity is needed for a bankruptcy judge to decide if my primary home should be sold or not? How do judges estimate our home value? Do they use the site like Zillow.com or?

The issue with the disposition of real property in bankruptcy is a little more complex:
(1) the mortgage holder, or other secured lenders have a right to petition for repossession
(2) the trustee (not the bankruptcy court) has the right to petition the court for a sale to pay off debts listed in the bankruptcy schedules
(3) unsecured debtors can make a petition for the sale of the home if they believe the home has sufficient value to pay both the secured debts, the homestead exemption, the trustee's fees, and the unsecured debts (as we discussed earlier)
(4) the value of the home is usually contested, both sides usually hire appraisers and contest the value in petitioning the court for the sale (or opposing it)

(5) the court will make a final determination as to the disposition of the property following any one of these petitions
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Customer: replied 4 years ago.

How do I find good bancruptcy atterney in Los Angeles area? I'm having hard time finding a good banckruptcy atterney

Outside of the three primary attorney search engines (California Bar Association (http://members.calbar.ca.gov/fal/MemberSearch/FindLegalHelp#legallink) Use "advanced search" and search by "location" and "Certified Legal Specialty" ; Martindale Hubbble (http://www.martindale.com/Find-Lawyers-and-Law-Firms.aspx) ; and AVVO (http://www.avvo.com/find-a-lawyer)

You can also find bankruptcy attorneys through the American Bankruptcy Institute (http://www.abcworld.org/) (ABI certifies their members, and provides very helpful ongoing legal training and education, I know they have a strong section in LA).
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Customer: replied 4 years ago.

If there is high equity on my home, can lien judgment creditor make decision to sell my home in banckruptcy? Or only the mortgage holder can make that decision?

In bankruptcy, any creditor can make a motion to sell your assets. Once you are in bankruptcy, particularly a Ch. 7 (the "liquidation chapter") it is a matter of shifting your assets to finance your debt.

If you are in a Chapter 13 ("reorganization chapter") there is more flexibility for the debtor to reorganize debt and retain certain assets. The rules and qualifications to get into a 13 are somewhat nuanced (http://www.nolo.com/legal-encyclopedia/chapter-13-bankruptcy-eligibility-29738.html), and you must commit to a payment plan over a period of 5 years (a very select number of debtors can qualify for a 3 year plan).
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Customer: replied 4 years ago.

Do you recomend chaper 13 for the lien judgment debt. I'm trying to keep my home if possible and I heard that trustee can't sell my home in chapter 13. will the judgment debt-300,000 get reduced? if so by how much?

Or do you recomend chapter11?