Bankruptcy expert Leon Bayer answers real-life questions.
My mother filed bankruptcy a few years ago. After that, she transferred a house to me because she couldn’t afford the payments and I was willing to take it over. The property had no equity and was upside down. Since then, the home has increased in value and I could sell it for a profit. However, I just found out that there are five judgment liens against my mother that had attached to the property. Those liens add up to more than $50,000. My real estate agent says I will have to pay off those liens if I sell the property. I didn’t know about the liens when she transferred title to me.
I’ve heard that I can file for bankruptcy to clear the liens. But this seems pretty extreme. I made all of the delinquent house payments and have paid the mortgage and the taxes for several years. But with those liens on the property I can’t sell the place and get my money out.
What do you think?
The law allows an individual in bankruptcy to remove judicial liens from property to the extent that each lien impairs an exemption the person is entitled to have in that property. Your mother may have been able to avoid the judgment liens in her bankruptcy case. What a shame that she didn’t do that. But if she couldn’t afford the house, she probably didn’t want to spend the time and money getting rid of the liens. You might be able to remove them if you file for bankruptcy. But the better news is this: Your mother can reopen her bankruptcy and remove the liens at this later date.
Why Didn’t Your Mother Avoid the Liens in Her Bankruptcy?
Often people in bankruptcy have the option of exercising legal rights like lien avoidance, but they don’t bother to. Especially when it looks like they can’t afford to keep the asset anyway. In order to avoid the liens your mother and her attorney would have had to file a motion and attend one or more court hearings. She would have had to pay attorney’s fees and maybe pay for a professional real estate appraisal. There was no point in doing all that if your mother believed she was going to lose the property anyway.
You Might Be Able to Get Rid of the Liens in Your Own Bankruptcy
You may be able to avoid those liens if you file bankruptcy. You acquired title subject to her judicial liens, but courts have ruled that a transferee like yourself can avoid a lien if you meet the same requirements that your mother would have had to meet in her bankruptcy. That’s fine – but only if you need to file for bankruptcy anyway.
Your Mother Can Reopen Her Bankruptcy Case
It sounds like you don’t need, or want, to file for bankruptcy. So here’s another solution:
Your mother can reopen her bankruptcy case. A debtor is allowed to reopen a closed bankruptcy case in order to seek relief that she could have sought during her case. She’ll have to file two motions: a motion to reopen the case, and then after the case is open, another motion seeking the lien avoidance. She may also need to amend her claims for exemptions, if she has not already claimed the correct exemption to accomplish lien avoidance.
Leon Bayer is a Los Angeles bankruptcy attorney. He is a partner at Bayer, Wishman & Leotta, a California law firm specializing in bankruptcy. The opinions and advice in this blog post are from Mr. Bayer alone, and should not be attributed to Nolo. By answering a question on this blog, Mr. Bayer does not become your lawyer.