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.

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

Answering a lawsuit on your own

Having a sheriff or constable hand you a summons and complaint (a lawsuit) is an awful feeling. If you have been served with a lawsuit, then you really should consult a lawyer about the particulars of the complaint. This post should not be a substitute for obtaining individualized legal advise. However, I also know that not everyone has access to legal representation. If you are being sued for non-payment of a debt, then you likely have a hard time finding the funds to retain counsel. So, I am offering a few pointers in filing an answer to a complaint in order to protect your interests.

First, though, I want to suggest you reach out to a modest means or pro bono legal clinic if you cannot obtain private counsel. In the Bluegrass area and Eastern Kentucky you can contact: Legal Aid of the Bluegrass, The Fayette County Bar Association, and AppalReD.

Again, this is not a substitute for legal advice:

In Kentucky, a state court lawsuit must be answered within twenty (20) days of being served with the complaint. If the 20th day falls on a weekend or holiday, you have until the next weekday to file your answer, though I always err on the side of filing it a day or two early. If your goal is to delay the lawsuit as long as possible while you pull things together for bankruptcy, then you will wait until the last day of your time before filing your answer (again, I shave a day off just for an abundance of caution). Filing an answer consists of delivering your original, signed answer to the clerk and mailing a copy to each lawyer (or unrepresented party) listed on the complaint you received by first class mail. You do not need to send it certified mail.

The answer consists of three parts. The first part is the “style” of the case. It is all the stuff on the heading of the complaint, except you do not have to list the addresses of the parties – just their names – and you call it an “Answer” rather than “Complaint”. The case number is the most important part because you want the clerk to file your answer in the right case.

The second part is where you either admit or deny the allegations in the complaint. This is where a bit of lawyer speak comes in: if do not know something for certain, but suspect it may be true, you can still deny it by saying “I cannot confirm or deny such and such allegation of the complaint, therefore I deny the same.” You must do this because anything you admit in your answer is not longer a controversy. So, if the lawsuit is filed by the original creditor that you borrowed money from, then you can admit that you owe them a debt, but still deny the exact amount they are claiming is owed. However, if the lawsuit is brought by a collection agency or a party claiming that the debt was assigned to them, you may suspect that to be true, but you really do not know for sure that it was assigned to them correctly. So, you can deny owing that party a debt altogether as well as the amount they claim is owed. You must sign this part of the answer, but do NOT sign for anyone else. If you and your spouse are being sued for the same debt, you each must sign the answer or risk being found to be practicing law without a license.

The third part must also be signed (so you will sign your answer twice). This part simply is a statement saying that you put a copy of your answer into the mail, US Post, first class postage, and then list each party or their lawyer and the address you mailed it to. Again, sign after this statement and make sure you actually do send a copy to that party or lawyer.

Filing the answer can either be hand delivery to the clerk or by mailing your answer in to the clerk. Either way, you also want to submit a cop of your answer along with the original so that the clerk can stamp it and hand the copy back to you. This is your proof of filing the answer just in case the clerks misplace the answer (they do have lots of cases to manage by the way). If you mail your answer in, send a self-addressed, stamped envelope along with the original and copy so the clerk can mail it back to you.

Filing an answer in a lawsuit simply prevents the plaintiff from a quick and easy default judgment against you. It forces them to produce proof to the court. They may do this by way of a Summary Judgment or it may end up being a hearing (especially if it is small claims court). Either way, it typically gains you extra time to either file bankruptcy or prepare a defense.

August 8, 2014 Posted by | Alternate Debt Relief, attorney fees, Bankruptcy, Chapter 13, Chapter 7, Planning, Pre-filing planning | , , , , , , , , , , , | Leave a comment

Foreclosure Defense and Standing

So much has been written about the dilemma of massive numbers of foreclosure actions that I am hesitant to dive into the fray. However, even though many would like us to perceive the economy issues as having resolved, I think the foreclose crisis will continue with us for some time.  Ordinarily, if someone has fallen behind on payments on their residence, a Chapter 13 works because payments on those arrears are stretched over five years with zero interest. Sometimes a Chapter 13 just is not a great idea because the non-exempt assets are so high that the plan payments cannot be met due to the monthly budget limitations of the debtor.

When a Chapter 13 is not the best approach and you really are determined to keep the home, then the drop back and punt position is to fight the foreclosure action. Step one in fighting back is to make sure the party bringing the foreclosure action actually has the right to prosecute it. This “right” is referred to as standing. Under Kentucky Revised Statutes (KRS 355.3-301) only certain parties have the right to enforce the promissory note; the right to pursue a lawsuit.

I need to go on a slight tangent here to make sure we are on the same page. Most people focus on the mortgage (real estate lien) in their defense efforts because often the mortgage does not have the name of the company filing the foreclosure on its face. However, the document most pertinent to the issue of standing is the promissory note (loan agreement). The promissory note is a negotiable instrument which means that it usually can be transferred. However, the way it gets transferred is very important (KRS 355.3-201).

Let’s think about a common, ordinary check. A check is a negotiable instrument. You can transfer a check written to you by indorsing your signature on the back of it. If all you do is sign your name, then whoever has that check in their possession can cash it. If you sign your name followed by “to John Quincy Adams”, then only John Quincy Adams can cash it. The former indorsement is “payable to bearer”, but whether it is a payable to bearer or to John Q., they can only cash the original check; they would go to jail for trying to cash a photocopy of a check.

A promissory note for a home loan is exactly the same as a check: 1) to transfer it then it must be endorsed (some spell this indorsed), and 2) it can only be “cashed” or enforced by the party who has physical possession of the original note (see the caveat below). So, if the party bringing the lawsuit cannot produce a properly indorsed original promissory note, then they cannot show they have standing. Challenging standing is the first crucial defense to a foreclosure. At best, the suit will go away because they discover they actually do not bear (hold) the promissory note. But, at least it will slow down the case while they dig through tons of documents to locate the original promissory note.

CAVEAT: There are some responses to this defense as described in the Uniform Commercial Code, but they are beyond the scope of this particular article and it is the burden of the party pursuing the bankruptcy to assert them.

July 18, 2012 Posted by | Civil Procedure, Pre-filing planning | , , , , , , , , , | 1 Comment