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Which is tougher on debtors exemptions CH 7 trustee or judgement settlement process?

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    #16
    In Florida, HOA and COAs have a statutory lien for your assessments as of January 1st of the year in which they are assessed. It is only against the condo unit itself (and any fixtures). While your homestead exemption protects you from certain creditors, it does not protect you from a "consensual" lien creditor. A consensual creditor is one in which you enter by virtue of a contract. When you sign your mortgage loan paperwork, you agree to have the creditor issue a "lien" known as a Deed of Mortgage (in Florida), which gives the creditor a lien against the property in order to pay the Mortgage Note, should you not pay. That's a consensual lien.

    The other consensual lien is that when you purchased your property, there was a rider which summarized that you agreed to be bound by the terms and conditions of the CC&Rs (Covenants, Conditions and Restrictions) of your condo or planned unit development. The COA also enjoys a statutory lien which may not be consensual but it is statutory (coming from the operating of law).

    You can't claim the homestead exemption against a consensual creditor (or a statutory lien creditor).

    Now that we defined how the liens work in Florida, we can talk about a judgement creditor. A judgement creditor (that doesn't have a statutory or consensual lien) cannot attach that lien to a homestead property in Florida. This is what protects your homestead from ordinary creditors who may sue you and obtain a judgement. They can't execute that judgement against your homestead due to the unlimited homestead exemption. (Clarification: you may need to be a resident of Florida at least 2 years before the unlimited homestead exemption is applicable.)

    That type of judgement creditor will not come to your home to appraise your car. If, and only if, they decided to execute on their judgement, your vehicle would be protected to $1,000 of equity. You also have protections for furnishings and other items under Florida Statute (222.25). If you do have a judgement then the questionnaire will have you list all your property anyhow. The judgement creditor will generally go by that statement.

    Right now, I would not worry about these little things. I am not sure I have ever "personally" read about a creditor (other than a vehicle creditor) coming after someones car in Florida. What they like to do is levy bank accounts and do garnishments (easy money). Coming after your car is problematic if it has a loan. The car would likely not yield enough to cover the loan and the creditor would end up paying the car's lender! Just not worth the hassle and issues with auctions of vehicles.
    Last edited by justbroke; 02-04-2019, 10:28 AM.
    Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
    Status: (Auto) Discharged and Closed! 5/10
    Visit My BKForum Blog: justbroke's Blog


    I am not an attorney. Any advice provided is not legal advice.

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      #17
      Thanks that clarifies the condo. Just one ,promise last question about my car and a creditor judgement. There is no loan and worth more than $1000, maybe $3000 at most. So does that make it worth taking if I owe creditor $10,000 or more? No money to take, so that might be the better than nothing to them?

      I it an I ssue for me because it is in good working condition and I could not afford to replace it at this point. No reliable public transit around here...

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        #18
        I may not have the best answer to this as I have no personal experience.

        Many judgement creditors don't want to deal with liquidating assets. Even if a judgement creditor somehow obtained a writ and the Sheriff sold it at auction, that creditor may not get enough. It's too much to speculate, but I would say that the car may be a non-issue because it may not be worth pursuing. What's worth pursuing for a judgement creditor is garnishment and the levy of bank accounts. The former and latter are already cash (liquid) and much easier to deal with than Sheriff's auctions. That doesn't mean that a creditor would not try to pursue a vehicle, it is just more likely that they'd pursue garnishment.

        If you're collection proof, then they can't garnish. I think this is likely a non-issue for you in the grand scheme of things, but it is what it is.
        Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
        Status: (Auto) Discharged and Closed! 5/10
        Visit My BKForum Blog: justbroke's Blog


        I am not an attorney. Any advice provided is not legal advice.

        Comment


          #19
          Thanks again, we shall see...

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