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Can an In rem lien be converted to an in personam lien by a judgment issued by a court?

San Juan Capistrano, CA |

A law firm that represents HOAs filed an in rem lien against me several years ago. I recently had a Chapter 7 BK and my in personam debt was wiped out. Even so, the law firm immediately tried to foreclose on me on the day after my Chapter 7 BK was discharged. In CA, BKs do not wipe out in rem liens. This law firm had previously obtained a judgment against me, in state court, for the same lien. This judgment was invalided by the US Bankruptcy Court. Included in the judgment is a statement that I am “personally liable for payment of the sums secured by the [in rem] lien, and plaintiff shall recover from said defendant any deficiency between the sale price and the said amount due plaintiff, together with expenses of sale.” Did this judgment convert the in rem claim to an in personam one?

Attorney Answers 1


You are asking the wrong question. It appears the HOA actually did foreclose by way of judicial foreclosure so that they could obtain a deficiency judgment against you, personally. If you filed a Chapter 7 after the foreclosure and the BK court “invalidated” the judgment it would appear you have no personal liability under it. However, if the HOA is attempting to collect I would definitely consult a BK attorney. Good luck.

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Thank you for your response. However, I believe that my question may be correct (at least I'm trying to gain a better understanding of what happened). Unfortunately, AVVO limits the amount of space that can be used for questions so I may not have been clear. During the BK, my attorney (who is extremely good), filed a special motion (Order to avoid lien) to with the BK court to have the judgement issued by the state court declared null and void. The BK court granted the motion and ordered the "[state court] judicial liens are hereby declared void and unenforceable." I understand that my personal liability vanished at that point. However, as the judgement against me in state court ruled that I am “personally liable for payment of the sums secured by the [original in rem] lien," does that mean that the state judgement changed the original lien from an in rem claim to a claim against me? I hope that makes since. At the moment, I'm currently filing a complaint against the HOA law firm as they have been engaged in many severe unethical and illegal practices - one of their on lawyers just sued them for doing so. Many of the illegal and unethical things that that their lawyer said her former employer to people, were also done to me. Thanks.

Michael Raymond Daymude

Michael Raymond Daymude


These questions you need to ask your extremely good bankruptcy lawyer. In rem and in personam jurisdiction are not mutually exclusive as you believe. Both can exist at the same time. Your personal liability pursuant to the judgment was wiped out with your Chapter 7 discharge unless the judgment was excepted. If the lien was avoided during your bankruptcy, it no longer exists against the property provided your bankruptcy attorney has filed a certified copy of the bankruptcy court order with the county recorder’s office.



Thanks for the response. During the BK, the judgement was voided but not the lien, although the lien was part of the judgement. A certified copy of the BK court order was filed with the county recorder's office, a couple of weeks before the BK was discharged. What I'm trying to find out is if the wording in the judgement changed the liability from an in rem claim to an in personam one. If so, then when the BK court voided the judgement, did it also void out the original lien. Under many circumstances, probably not. In this case, due to the language in the judgment (which I listed in my question), I'm wondering if the BK order also voided the original lien. I understand that both can exist at the same time. My lawyer is currently out-of-town. I've had to retain him again for this matter but he only deals with matters in Federal Court. As the lien and subsequent judgement occurred in state court, he doesn't do that. However, he may be reopening my case in BK court due to the severe and ongoing harassment I've had post-discharge - the HOA has literally refused to speak or communicate with me and also refuses to send me monthly statements, despite the fact that the BK was discharged months ago. Again, thanks for your assistance.

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