Kentucky Bankruptcy Law

Counsel with Care

Hidden Debt Collection Mechanism

Despite the fact that notices of judgment liens are sent to the Debtor, such notices are often ignored, misunderstood, or forgotten by the time the Debtor files bankruptcy. So, it is important for the Debtor to go down to the County Clerk and get a copy of ALL active liens against real estate. Since nothing bad immediate happens with a judgment lien against property, people tend to overlook them, so they are a hidden debt collection method that could survive bankruptcy.

In a Chapter 7 or a Chapter 13, one can avoid a judicial lien on property that impairs an exemption pursuant to 11 USC Sect. 522(f).  The most common way this plays out is that a creditor has filed suit, obtained a judgment, and then filed a lien on that judgment against your real property. This lien can sit dormant against your home for fifteen years, but it must be satisfied if the property is ever sold. Or, the creditor may pursue foreclosure but they rarely do that unless they believe there is enough equity in the property.

In order to strip off the judgment lien, your bankruptcy attorney must file a motion within the bankruptcy as a contested matter. In other words, if your attorney does nothing else, then the lien will survive the discharge. Previously, this was done within the plan of a Chapter 13, but the local rules have changed so that it must be done by motion in both Chapter 7 and Chapter 13 bankruptcies.

If your attorney was unaware or the judgment lien or otherwise failed to file that motion to strip the lien, not all is lost. A decision in the Eastern District of Kentucky Bankruptcy CourtIn re Cross, Case No. 93-50547, the Debtors failed to strip the lien off their real property while the bankruptcy remained open. Twenty months after the case closed, the Cross’ reopened the bankruptcy and moved to have the lien stripped. Despite the passage of time and the creditor arguing that the Debtors waived the right to strip the lien based on so much time passing, the court still granted their motion.

October 15, 2014 Posted by | Assets, Bankruptcy, Chapter 7, Discharge, Exemptions, Property (exempt, Security interests | , , , , , , , | 1 Comment

Avoiding a Judicial Lien

In a Chapter 7 or a Chapter 13, one can avoid a judicial lien on property that impairs an exemption pursuant to 11 USC Sect. 522(f).  The most common way this plays out is that a creditor has filed suit, obtained a judgment, and then filed a lien on that judgment against your real property. This lien can sit dormant against your home for fifteen years, but it must be satisfied if the property is ever sold. Or, the creditor may pursue foreclosure but they rarely do that unless they believe there is enough equity in the property.

In order to strip off the judgment lien, your bankruptcy attorney must file a motion within the bankruptcy as a contested matter. In other words, if your attorney does nothing else, then the lien will survive the discharge. Previously, this was done within the plan of a Chapter 13, but the local rules have changed so that it must be done by motion in both Chapter 7 and Chapter 13 bankruptcies.

If your attorney was unaware or the judgment lien or otherwise failed to file that motion to strip the lien, not all is lost. A decision in the Eastern District of Kentucky Bankruptcy Court, In re Cross, Case No. 93-50547, the Debtors failed to strip the lien off their real property while the bankruptcy remained open. Twenty months after the case closed, the Cross’ reopened the bankruptcy and moved to have the lien stripped. Despite the passage of time and the creditor arguing that the Debtors waived the right to strip the lien based on so much time passing, the court still granted their motion.

February 4, 2013 Posted by | Bankruptcy, Chapter 13, Chapter 7, Discharge, Security interests | , , , , , , | Leave a comment

News You Can Use: New local rules for E. D. Ky Bankruptcy Court

A new set of local rules supplementing the Federal Rules of Bankruptcy Procedure  (FRBP) were ordered into being for the Eastern District of Kentucky Bankruptcy Court. These local rules went into effect on 1/1/2013. For the most part, they merely codify current practices or fill in some gaps. I will highlight a few of the more important changes discussed at a recent training sponsored by the Fayette County Bar Association.

  • 1002-2 If a debtor is a corporation, LLC, etcetera, be sure to also file authority to file.
  • 1007-2 Mailing lists: Be sure to find the right address for the Kentucky Department of Revenue and the IRS. These can be found on the right address.
  • 1009-1 A motion for the case for the meeting of creditors to be heard in a different location, you must file that motion with the petition.
  • 2002-1 Notice requirements generally are 14 days unless there is a different, specific rule. Be sure to file a motion to shorten time if you need that to be less than 14 days.
  • 2003-1 Trustees can continue the meeting of creditors without a court’s order. If the trustee does continue the meeting, the counsel for the debtor must send out notice to all creditors. Only file a motion if the trustee will not agree to a continuance and then explain the circumstances.
  • 2004-1 A motion for an examination under 2004 does not need a hearing and the order will be entered by the court after three business days without an objection.
  • 2016-2 The presumptively reasonable fee of $3,500.00 no longer includes the court filing fees.
  • 3002.1-1 When a secured creditor files notice of post-filing fees, the trustee no longer has to object – they simply will not be paid through the plan.
  • 3015-2 A modification to a Chapter 13 plan, must be filed seven (7) days prior to the hearing on confirmation to be considered.
  • 3015-3 Objections to a modified plan must be filed within seven (7) days after the first meeting or creditors or the date of the filing of a modified plan, whichever is later.
  • 3015-4 Adequate protection payments will not accrue or be paid until the creditor files a proof of claim. But, if this happens and a case is dismissed, the trustee will pay those adequate protection payments that have accrued.
  • 4001-1 Motions to lift the automatic stay filed prior to the meeting of creditors, must give the trustee fourteen (14) days after the meeting to object. If the trustee does not object, then the property is deemed abandoned.
  • 4003-2 A motion to avoid a judicial lien that encumbers exempt property must include more specific information to identify the lien: filing date, county filed, book and page number, and the lien (style of underlying case) to be avoided. The property, value of property, amount of other liens on the property also must be in the motions as well as the amount and statutory provision of the claimed exemption. A non-possessory and non-purchase money lien must identify similar information. There is specific language that must be in the order. These motions must now be filed separate from the proposed plan whereas they used to be included in the plan. Unfortunately, if there is a judgment lien filed, but the debtor owns no real property going into the bankruptcy, then one cannot request this 522(f) relief. By law, the judgment and lien become void upon entry of the discharge order.
  • 4004-5 Debtor’s counsel must file a Local Form 4004-5a, within thirty (30) days of the trustee filing their Certification of Plan Completion and Request for Discharge.
  • 7026-1 Provisions of FRCP 26(f) do not apply with adversary proceedings or contested matters.
  • 9013-1 Orders only need to list parties to be served that are NOT served by the ECF system.
  • 9070-1 How exhibits are filed are changed and this is set forth in the Administrative Procedure Manual. Essentially, each exhibit should be a separate attachment rather than lumped together. A clear and concise description of the exhibit should be input into the ECF system.

 

February 1, 2013 Posted by | Automatic Stay, Bankruptcy, Chapter 13, Chapter 7, Discharge, Plan, Plan payments, Planning, Pre-filing planning, Proof of Claim, Security interests | , , , , , , , , , , , , , | Leave a comment