Lien filed after BK filed?

[Pedal Power]

I'm recovering from a bit of bad fortune a few years ago. In trying to refinance a second mortgage, a lien has shown up against my house.

I filed in October, but the lien wasn't filed until November. Can they DO that?! I understand that bankruptcy doesn't make the lien go away, but I thought I understood that filing the bankruptcy prevented liens in the first place. (Meeting of creditors was in December - discharge the following February.)

My attorney has retired, and his phone is disconnected. Other attorneys in town aren't returning my calls. I hope someone here can shed some light.

[HHM]

What creditor placed the lien.

[Pedal Power]

Unifund. A web search indicates they're bottom-feeders who purchase old debt and slap liens on anything they can.

[HHM]

Ok, but what was the underlying debt.

[Pedal Power]

Capital One credit card.

[HHM]

Interesting, if they were able to place a lien, then that means you must have been sued somewhere along the road.

All the BK court can do is sanction Unifund for violation of the automatic stay, but that won't remove the lien.

Thus, you may have to go to county court and file a complaint against unifund to remove the lien.

[woeisme]

Was the debt discharged in the BK? If so, then you should be able to do something about getting the lein lifted, not sure what steps are involved, sorry!

But if the debt was not discharged, you could fight to have the lein removed on the arguement that the automatic stay was in place at the time (would have been a lot simpler if you'd done that when notified of the court date as opposed to after the fact, but that ship has sailed...) That being said, if you still owe this debt, then they could get a new lein now that BK is discharged, so not sure fighting to have it removed due to violation of the automatic stay is worth the time/costs involved unless you can get the refinance real quick between having the lein removed and when they'd file to get a new(legal) lein put in place.

Good luck!

[Pedal Power]

Yes, there is apparently some process you can go through to get liens lifted when appropriate.

I was originally served in August, which prompted me to go ahead and file bankruptcy in October in order to protect my home. (Ironic, huh?) I don't recall receiving any court papers after filing, except bankruptcy papers.

The debt was indeed discharged, but in reviewing my paperwork, I see that while Capital One - the original creditor - is listed, Unifund is not.

[sharksfan]

As long as the OC was listed, you should be in the clear. Did you notify Unifund of your bankruptcy and discharge?

[JRScott]

Your lawyer retired? Before your case was finished .

I think you have to take the discharge paper down to the clerk of court and show it to get liens removed not sure though.

Perhaps drop by a lawyer's office rather than just calling and seeing if you might could get a few minutes to talk to someone explain your lawyer has retired and you've had this come up.

[keepmine]

I'd start by sending Unifund a letter CRRR giving the date you filed the bk {include the filing number and the creditor matrix showing Cap1 was listed} and ask them to vacate the judgment and release the lein since, the lein was placed post bk filing, they violated the automatic stay so forth and so on. Let them know a copy of the letter is being sent to the FTC and your state attorney general.
That'll start the paper trail if you have to escalate the matter.

[biotechsolution]

They must have gotten a judgement against you first before they filed the lien. Was the judgement issued after you filed for Bk?

If it was filed all you need to do is write a short letter to the court clerk. Stating that any judgement or liens that were issued after you filed you BK case are a 'violation of the sec. 362(a)automatic stay and therefore void by a matter of law'.

You wanted to get fancy you could print it up in the format of a motion and then send it to the court clerk.

Either way they will treat it like a motion and send it to the judge.

If you received a judgement it should also be on the court website and you should be able to see the process of your motion online. Just like PACER.

It should only take you a couple days to get it vacated.

[Pedal Power]

The devil is in the details. I went to the county clerk's office to look at the actual paperwork. The lien was filed just days before my bankruptcy filing, not afterward as I had thought.

I'm screwed. But I'm sure glad I discovered this now rather than years down the road, since the interest on the judgement accumulates at 28.74%.

Thanks for all your help, guys.

[JRScott]

The devil is in the details. I went to the county clerk's office to look at the actual paperwork. The lien was filed just days before my bankruptcy filing, not afterward as I had thought.

I'm screwed. But I'm sure glad I discovered this now rather than years down the road, since the interest on the judgement accumulates at 28.74%.

Thanks for all your help, guys.

Dang , I hope someone here knows a trick that can help ya.

I'm not up on liens so not sure what to do, you might approach another lawyer in your area and ask.

[HHM]

There is no "trick".

But here is what I would do first.

I would write a letter to Unifund (a demand letter), basically stating that you filed BK, included this debt (the original debtor), attach a copy of the creditor matrix and discharge order. Then request that they remove the lien within 10 days or face legal action. etc etc. (send the letter CRR)

Concurrently with sending that letter...you would file a motion to vacate the "judgment". (which is something you need to do after a BK discharge when a judgment is involved). Thus, since the lien is based on the judgment, having the order vacating the judgment might be enough for you to take to the county recorders office and have the lien removed.

The reason for doing the letter is time. You said you were trying to get a refi, so if unifund complies with the letter (and they might), that will probably occur quicker than you can get the order to vacate.