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When do you file a motion to avoid lien if you have a ch 7 and a judgment was entered prior to ch 7

Fort Washington, MD |
Filed under: Lien

not sure whether to file a Motion to Avoid Lien, Motion to Vacate Judgment, and an Order to Show Cause stipulating a chaper 7 has commenced. help

You should contact the court, get their fax number, and send over a copy of your bankruptcy filing. This will notify them that an automatic stay should be in place. The important thing is that you list the judgment on your schedules submitted to the bankruptcy court. Motion to avoid lien is typically to avoid liens that have no equity attached to them, such as a second mortgage. Motion to vacate judgment is used to vacate a judgment for deficiencies such as lack of jurisdiction or improper service of process. Don't think that is necessary here.

Attorney Answers 2

Posted

A Federal Court cannot overrule a state court under the Rooker Feldman doctrine (according to the Supreme Court cases) so it would seem that filing a motion to vacate a judgment in the bankruptcy court is rather fruitless. Further, filing the motion to vacate the judgment is fruitless in state court also now that you have filed bankruptcy. Filing the motion to avoid lien will remove a judicial lien off any of your property if it is exempt so that is what I would do based upon the limited details you have given. It doesn't do anything with the judgment which will still appear on your credit report, but it will remove a judicial lien from any property claimed as exempt in the bankruptcy if the creditor has one.

The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Illinois. Responses are answers to general legal questions and the receiver of such question should consult a local attorney for specific answers to questions.

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Posted

You need to send a "suggestion of bankruptcy" to the state court. If the judgment is in Baltimore City District Court or any County Circuit Court you will need to file a motion to avoid lien. You should speak to an attorney about this because the motion is complicated. The motion is usually filed at the outset of the case. Good luck.

Alon Nager
Russack Associates, LLC
100 Severn Ave., Ste. 101, Annapolis, MD 21403
410-575-3917
alon@russacklaw.com

Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.

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