Judgment Liens After Bankruptcy: Are They Threatening Your Real Estate Transaction?

Did you know that a judgment “lien” against real property may survive a bankruptcy discharge? The survival of this lien may impair title to the real property and make it difficult to sell property at a short sale, or even at a non-short sale. A judgment lien is not ordinarily released until the judgment debt has been satisfied. When a money judgment is entered against a person by a court, two things happen: (1) a judgment debt is created, and (2) a judgment lien attaches to any real property the judgment debtor owns in that jurisdiction. A judgment creditor can also record the judgment in other jurisdictions where the debtor owns property, thus creating a lien against that property as well. A judgment lien is not ordinarily released until the judgment debt has been satisfied. When a person files for bankruptcy, all of that person’s, or the debtor’s debts, including any judgment debts must be listed in the bankruptcy petition. If the debtor owns real property, any judgment liens must also be listed. When a discharge is entered, the underlying debt associated with the judgment is wiped out. HOWEVER, the judgment lien that attached to any real property survives unless the debtor takes steps to remove or “avoid” the lien through a motion filed with the bankruptcy court. The debtor may not even realize the lien survived until he or she tries to sell the real property after the discharge has been entered. Sometimes judgment liens are missed or the debtor may not understand that the lien has not been released when the debt is discharged because the necessary steps to avoid the lien in the bankruptcy were not taken. The debtor may not even realize the lien survived until he or she tries to sell the real property after the discharge has been entered. The survival of the lien against the real property creates a cloud on the title that must be removed in most circumstances if the debtor is to sell the property. Release of the lien usually requires the consent of the judgment creditor or the lien holder. Most judgment creditors will not voluntarily release a judgment lien without some payment of the judgment debt, which may not be feasible depending on the creditor’s demands and/or the availability of the debtor’s funds. There may be times when a closing date is approaching, and the judgment creditor’s cooperation is not forthcoming, placing the transaction in jeopardy. What can the debtor/seller do if payment of this debt is not possible? We recently assisted a seller with this very problem. Fortunately, there is a procedure in bankruptcy to remove or avoid the lien so that the sale can proceed. Here are the steps we followed: File a motion with the bankruptcy court to re-open the seller’s bankruptcy for the limited purpose of filing a motion to avoid the judgment lien. Once the case is re-opened, file a motion to avoid the judgment lien. The motion must be supported with copies of the following documents: deed to the real property an appraisal showing the value of the property at the time the original bankruptcy petition was filed an appraisal showing the current market value evidence of the balance of any mortgages when the original bankruptcy petition was filed, and evidence...

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Wow! That Can’t Happen to Me … Can It? Part 2

A number of recent real estate scams underscore the need for diligence on the part of all parties to a real estate transaction, including real estate agents and settlement companies. Part two. This is a three part series on real estate scams and fraud.  Check out Part One if you haven’t already done so. The nephew hired an older woman, also well into her eighties, to impersonate his aunt. Another real estate scam we’ve seen in recent years involves mortgage fraud. Several years ago we were involved in a case where an elderly out-of-state woman owned a piece of residential property located in Northern Virginia that she leased to third party tenants. The owner was well into her late eighties and owned the property free and clear. A nephew of the woman, recognizing the potential for money-making at his aunt’s expense, took out a home equity mortgage on the property in his aunt’s name. The daringness of the young nephew reached new levels. The nephew hired an older woman, also well into her eighties, to impersonate his aunt. In doing so he prepared various fraudulent documents and supplied her with a fake driver’s license. He then accompanied the woman to a bank to apply for a mortgage in the aunt’s name. When the loan was closed, the imposter forged the aunt’s name on the loan documents, and the nephew pocketed the proceeds and promptly vanished. The property owner did not learn of the mortgage until the loan fell into arrears and a notice of foreclosure was served on her tenants. The real owner only received notice of the pending foreclosure and the perpetrated fraud within a few days before the scheduled foreclosure, at which time she retained our firm to address and correct the situation.   The property owner incurred significant legal fees to stop the foreclosure and to work with the bank to establish that the loan had been obtained fraudulently. Because her identity was stolen, the property owner must now constantly monitor her credit. The bank now has claims against the title company that closed the loan and against its lender’s title insurance policy. Part Three of our three part series on real estate scams and fraud will offers more example and lessons learned. Chung & Press, P.C. handles a diverse array of legal matters, including residential and commercial real estate transactions and closings, corporate and business transactions, bankruptcy, litigation, and intellectual property. Our experienced attorneys and staff provide  streamlined, cost efficient legal representation with a high-level of personal attention to all of our clients, from individuals, to entrepreneurs and small businesses, to large companies. We serve clients in Virginia, Maryland, and Washington, D.C., as well as handle matters throughout the United States and abroad. Please do not hesitate to contact us at (703) 734-3800 to discuss your legal...

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Wow! That Can’t Happen to Me … Can It?

A number of recent real estate scams underscore the need for diligence on the part of all parties to a real estate transaction, including real estate agents and settlement companies. The sale was ultimately voided by the circuit court as a forged deed cannot pass title, even to a bona fide purchaser for value. One such scam involved the sale of property in Virginia Beach, Virginia, and was reported in the June 9, 2014, issue of the Virginia Lawyers Weekly. A thief set up an elaborate ruse to impersonate the property owner for the purpose of contracting to sell the property. The imposter contacted the local clerk’s office to change the ownership address of record to a post office box in Florida. The imposter then contacted a realty company in Virginia Beach to list the property for sale. Once a contract was signed (or forged in the case of the named seller), the seller’s settlement documents, including the deed, were sent to Florida for the “seller’s” signature. The imposter set up a fake social security number and obtained a forged notary seal to acknowledge the deed. When the deed was recorded, the sales proceeds were wired to an account in Florida. The imposter and the sales proceeds have since disappeared. The real owner of the property only learned of the sale when he contacted the same realty company to sell the property himself. To regain ownership the real owner was forced to file a legal action in the Virginia Beach Circuit Court. The sale was ultimately voided by the circuit court as a forged deed cannot pass title, even to a bona fide purchaser for value. The owner incurred thousands of dollars in legal fees, and the realty company and the title company that conducted the closing are facing claims from the purchasers and their lender for the loss of the property and the funds transferred to the imposter. Check out Part Two and Part Three of our three part series on real estate scams and fraud for more examples and lessons learned. Chung & Press, P.C. handles a diverse array of legal matters, including residential and commercial real estate transactions and closings, corporate and business transactions, bankruptcy, litigation, and intellectual property. Our experienced attorneys and staff provide  streamlined, cost efficient legal representation with a high-level of personal attention to all of our clients, from individuals, to entrepreneurs and small businesses, to large companies. We serve clients in Virginia, Maryland, and Washington, D.C., as well as handle matters throughout the United States and abroad. Please do not hesitate to contact us at (703) 734-3800 to discuss your legal needs....

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