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GEORGIA Real Estate Attorneys - does a Judgment lien have to be paid ?

Athens, GA |

If I have a FiFa (judgment lien) against a person, and they refinance their mortgage, is the lender (or the Title Co.) required to pay the lien before closing the loan ? If they've closed the loan, and I notify them later that the lien exists (they missed it), can I force them to pay the lien ?

How to do I force payment of the judgment lien (FiFa) ?

Attorney Answers 3

Posted

In a perfect world, the attorney handling the closing of the refinance loan would make sure that your FiFa (as well as any other lien of record in that county) was satisfied (i.e., paid).

If for some reason, the FiFa was not paid at the time of the refinance, in theory you would have the highest priority lien on the property and you could seek to foreclose (or levy and execute on the property). However, this is complicated by the fact that Georgia recognizes the doctrines of equitable subordination and equitable subrogation which sometimes excuses the failure to clear liens.

Skaar & Feagle, LLP maintains offices in Marietta (770 427 5600) and Decatur (404 373 1970), Georgia. The information ("the answer") provided above is for general information and educational purposes only. The answer should not be taken as legal advice for any individual case or situation. Posting the question and reviewing the answer does not constitute an attorney-client relationship. My firm will ask you to sign a written contract prior to the commencement of representation in any attorney-client relationship. Please contact 770 427 5600 or 404 373 1970, if you wish to discuss your situation further. Skaar & Feagle, LLP accepts select consumer rights cases. These cases include, but are not limited to, cases of abusive and unlawful collection activity, debt defense, credit reporting of false or obsolete (old) information, high interest lenders (title pawns, payday loans), debt management plans, and fraud or unfair practices in the sale and financing of automobiles.

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2 comments

Asker

Posted

If I'm not mistaken (and I rarely am) subordination applies in a Bankruptcy filing and subordination applies in a tort action. A judgment creditor lien is "first in time, first in line" to a junior (secondary purchase-money lien).

Asker

Posted

Sorry, I meant "subrogation" applies in a tort action, not a judgment creditor situation.

Posted

I agree with Ms. Skaar; however, you don't know exactly what lien position you're in until you take some action. If you would like to discuss this, call me at 404 668 3790.

If you find this answer helpful, please mark it here on AVVO as helpful. In answering you, I am attempting to communicate general legal information and am not representing you (and am not your lawyer). Do feel free to call me at 404-668-3790 if you wish to discuss actual representation (the phone call also does not retain counsel; that requires an office visit and appropriate paperwork). In that a forum such as this provides me with limited details and doesn't allow me to review details and documents, it is possible that answers here, while meant to be helpful, may in some cases not be complete or accurate, and I highly recommend that you retain legal counsel rather than rely on the answers here. (You can also email my office at don@HawbakerLaw.) An email also does not retain my office, but can help you get an appointment set if you prefer not to call). I am happy to discuss possible representation with you. Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. I am also required to advise you, if your question concerns bankruptcy, that the U.S. Congress has designated my Law Office as a debt relief agency that can help people file bankruptcy.

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Asker

Posted

Actually, I do know what lien position we're in. Our judgment and FiFa was filed prior to the refinance. As it turns out, the lender has now contacted us and has offered to pay off the lien. I do appreciate everyone's input.

Posted

There can be a lot of complications to your situation but one thing is clear: If you have a valid judgment and the lien has not been satisfied, you still have a lien. A judgment lien is not just against the real property, it is against all of the debtor's assets. I agree that you need to have counsel assess whether you are likely to have an equitable subordination situation. But if the refi lender cannot get priority over you, you would have a lot of leverage.

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