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Mar 2013

Can they put a lien on a house I bought after the bankruptcy?

Posted by / in Virginia Bankruptcy / 9 comments

Did you put off filing bankruptcy until after somebody got a judgment against you?

Pre-bankruptcy judgments are liens on property you own before the bankruptcy.  (Sometimes they can be removed;  sometimes they can’t.)   But they cannot put a lien on a house you buy after the bankruptcy.

At least, not legally.

The purpose of bankruptcy is a new start in life and a clear field for the future.   Many people bounce back from bankruptcy and become home owners in a few years.  Later when they go to sell that new home, those pre-bankruptcy judgments sometimes rise from the grave.

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Your pre-bankruptcy judgments are not a lien on your after bankruptcy house. Not legally.

Not legally.  But they do.  Like zombies.

Michael Wells, an experienced bankruptcy lawyer in Midlothian, VA, gave this recent example.

Client comes to me with a problem: he is trying to complete a sale on his house, but is being told that he must “take care of” three civil judgments that were discharged in a 2007 Chapter 7. He did not own the real estate pre-bankruptcy; it was purchased several years later. The real estate attorney for the seller contacted the lawyers for the judgment creditors and has been sent fax letters with demands for payment from the proceeds of the sale. The paralegal handling the sale claims “judgments last for 20 years” and does not believe client when he explains that these are discharged debts and never attached to the real estate.

There are two problems here.  Dumb and dumber.

The title people handling this transaction are dumb.  The paralegal who says “judgments last twenty years” should know “but they don’t attach to new property after bankruptcy.”  That’s the basic thing that everybody who has anything to do with real estate should know about bankruptcy

If you are in Virginia  and you have that problem, there’s a smarter title company you can use.  The lawyer for Old Virginia Title, in Fairfax VA, is Richard Bolger, who has experience in both real estate law and bankruptcy law.  He knows that pre-bankruptcy judgments don’t attach to after-bankruptcy real estate.  In our example, Old Virginia Title would do the title work approving the sale without paying those judgments.

If the title people are dumb, the collection lawyers for the judgments dumber.

First those collection lawyers should also know that the judgment liens don’t attach to after bankruptcy real estate.

Second, they should know that in asking for payment they are violating the bankruptcy discharge injunction.

Annandale bankruptcy lawyer Richard Hall recently got Judge Mayer to slam collection lawyers who did that exact thing.  In fact, I think Judge Mayer gets mad enough that he will slam everybody in sight.  In this example, he’d slam the dumb title people, too.

(Bankruptcy Judge Robert Mayer says that the judgment creditor is required right after the bankruptcy to show the discharge  in the county land records.  So even dumb title people aren’t confused.  The lawyers in our example have two bankruptcy violations.  Number One:  They should have already updated the land records to show the judgments were discharged.  Number Two: They should NOT try to collect on discharged debts.)

Finally, the collection lawyers who demand payment on a discharged debt are also violating the Fair Debt Collection Practices Act.  They are making a false representation of the legal status of a debt.   There’s thousand dollar statutory penalty under the FDCPA.  That’s on top of penalties by the bankruptcy judge.

So, if you go to sell your after-bankruptcy house, and you’re told you have to pay your pre-bankruptcy judgments, don’t be fooled by dumb title people and dumber collection lawyers.  Talk to your bankruptcy lawyer right away.

 

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Robert Weed has helped fifteen thousand people file bankruptcy in Northern Virginia. Robert Weed is a frequent panelist and speaker at the meetings of the National Association of Consumer Bankruptcy Attorneys. He is one of Northern Virginia’s most experienced personal bankruptcy lawyers. As an expert on changing consumer bankruptcy laws, Robert Weed has been interviewed on local and national TV and quoted in newspapers across the country.

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9 comments
  • Avatar

    Robert Weed

    April 1, 2014, pm30 7:38 PM
    01

    Just had another client who had this problem. The title agent was saying there was a lien on the house she bought eight years after the judgment and seven years after the bankruptcy. It took a while but I was able to get the title agent to talk to her lawyer. Who agreed I was right..

    Good morning,
    I have had my underwriting counsel review and you are correct. Thank you for looking into this. I will let Ms. Davis know as well.
    Thank you,
    Marie

  • Avatar

    Paula

    August 28, 2014, am31 1:42 AM
    02

    My loan application can’t make it through the final stages of review because an underwriter is demanding that a pre-bankruptcy judgement–that was discharged fully in bankruptcy–must be declared paid/satisfied/released before I may purchase the house. The position of the underwriter is that the judgment leaves me (and my future property) liable.
    The exact wording from the underwriter: Including a judgment in a bankruptcy doesn’t satisfy or eliminate the borrower from liability even after the bankruptcy has been discharged. The bankruptcy attorney needs to file a release / discharge of the judgment through the local courthouse where it was filed. Having a credit supplement stating included in bankruptcy doesn’t satisfy the condition for proof that it has released nor will providing copies of the bankruptcy paperwork with the creditors holding unsecured liens. We need an actual release of judgment in order to clear this condition.

    • Avatar

      Robert Weed

      August 28, 2014, am31 10:32 AM
      03

      Paula:

      Two things.

      First, one judge here in Alexandria VA says that the CREDITOR has an obligation under Virginia law to show a discharge on the judgment. You can see what your lawyer there thinks.

      Second: Including a judgment in a bankruptcy DOES satisfy or eliminate the borrower from liability even after the bankruptcy has been discharged. Maybe you need to talk to a smarter lender.

  • Avatar

    Bob

    June 4, 2018, am30 11:24 AM
    04

    This is happening to me right now. My bankruptcy was finalized in 2010, my mother added me to her deed in 2012. Now she went for a home equity and they stated we have 2 judgement liens against the house. I talked to the bankruptcy lawyer and he said they can last for 20 years just like your example. He stated there may be a NY law that may be able to fight it but there is no guarantee. He said he would look into it and contact us back. I don’t feel it’s right that these judgements were never mentioned to me because she would not have put my name on the house if it was…

    • Avatar

      Robert Weed

      June 4, 2018, am30 11:58 AM
      05

      Bob:

      I’d be surprised if state law, in New York or anywhere else, has anything to do with it. This is just bankruptcy law. The pre-bankruptcy judgment can’t attach to post bankruptcy property. Protecting what you get or make or do AFTER you file the bankrttpcy is the WHOLE POINT of filing bankruptcy.

      Your lawyer needs to stop and think about how bankruptcy law works.

      • Avatar

        Bob

        June 7, 2018, pm30 6:48 PM
        06

        Hello,

        First off, Let me thank you for the time you’ve taken in reading and responding to this. I think you are a great person and appreciate your experienced insight into this. I just got a letter from him stating that it was looked into further and in order to file 2 judgement disputes for me and go to the proceedings for about 1500… Is this something I should be able to file by writing a letter possibly to the companies and asking for the lien releases in order to avoid the fees or would it be advisable to pay him and let him take care of it? He said, generally the courts will dismiss the liens when filed, but can’t guarantee it. I asked why this wasn’t taken care of within the original bankruptcy and he stated that because I didn’t own real estate at that time, they couldn’t file papers for a motion to get those judgements dropped. It just feels odd that I would have to repay for representation for something that should have been settled within the bankruptcy. My final question was why wasn’t I ever notified of these judgements, shouldn’t someone have told me and it was stated that no, the courts have no obligation to let me know which sounds pretty odd. It wasn’t on my credit reports or anything. I’m just wondering if its worth paying the 1500 to get this resolved or do I have an alternative. Again, I greatly appreciate your time and knowledge with your feedback. I understand that you are a busy person and I want you to understand that for someone like me its nice knowing that there still people like you out there in this world helping others.

        • Avatar

          Robert Weed

          June 10, 2018, am30 10:41 AM
          07

          Bob:

          I continue to think the real estate closing firm should KNOW those judgment are NOT a lien on your house.

          I certainly agree that there was nothing that needed to be done when your BK was filed because you didn’t own the property then. I do not know how to proceed now because somebody is just being stupid but I don’t know how to fix that.

  • Avatar

    Bob

    April 11, 2019, pm30 4:55 PM
    08

    In 2012 we filed a chapter 13. In 2017 it was discharged. In September of 2018 we purchased a house. Today we are refinancing a house and fine out one of the creditors has put a lien on our house even thou we do not owe anything. How is that possible? we contacted our BK lawyer and he said that it is not legal to do so and that he could wright a letter But it will cost us around $150 to do so.

    • Avatar

      Robert Weed

      April 11, 2019, pm30 5:07 PM
      09

      Bob:

      Well I agree it’s not legal. I promise my customers there’s no charge for fighting things that come up in the first five years. Now I charge a little more than many lawyers so, so it’s not unfair to ask for $150.00 to clear up this problem.

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