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How do I file a motion to dismiss a judgement lien in my primary property? What form do I need to submit?

Sunnyvale, CA |

The judgement lien came first before I filed my bancruptcy chapter 7 petition. My petition is still under process. The creditor is included in my petition.

Thanks

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Attorney answers 3

Posted

You cannot. Unless you are in a Chapter 13 bankruptcy, the judgment lien remains following your bankruptcy discharge.

The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.

Posted

Generally, stripping off a judgment lien against real property is not permitted in a Chapter 7 proceeding. However, in a Chapter 13 proceeding you may be able to strip/remove the judgment lien from the property, but that depends upon the fair market value of the property and the debt.

The question is what do you intend to do with the property in Chapter 7? Surrender the property (in which case the judgment lien would not matter) or reaffirm the secured debts and keep it or is their suffient equity beyond the homestead exemption for the Chapter 7 trustee to consider selling it.

Posted

You can file a motion in a Chapter 7 to AVOID a judgment lien, but that is different than dismissing the lien. The basis for this type of motion would be that the lien impairs your homestead exemption.

This kind of motion is very tricky to handle, as timing, noticing and evidentiary requirements are crucial. I have seen inexperienced lawyers spend over a year going back and forth into court struggling to correctly resolve this issue. What a nightmare this must have been for both the attorney & the client.

This is not something you want to try on your own unless you have lots of time to waste & patience. Hire an experienced attorney to represent you on this.

Hope this perspective helps!

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