Judicial Lien Laws
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What Is a Judicial Lien?
A judicial lien is a type of lien that is placed on a debtor’s property. It allows a creditor to obtain title to the debtor’s property in the event that the debtor has failed to make payments on a loan such as a mortgage. Judicial liens are usually obtained in connection with the final judgment issued in a lawsuit between the debtor and creditor.
Once the judicial lien is certified by the court, the debtor is required to forfeit their property. It will usually be subjected to a judicial sale, with the proceedings going towards the debt owed to the creditor.
Can Judicial Liens Be Avoided?
In some cases, judicial liens can be avoided through additional steps taken by the debtor. This process is often known as “Judicial Lien Avoidance”, and relieves the debtor of the lien obligations imposed upon their property. The lien avoidance process can be complicated because it often overlaps with other issues such as homestead exemptions
In most jurisdictions, judicial lien avoidance is only extended in connection with bankruptcy proceedings (Chapter 7 or 13). The debtor has the burden of proof of filing a “Motion to avoid judicial lien”, sometimes called a motion to avoid a judgment lien. If they fail to file the motion when filing for bankruptcy, the lien is said to “survive” the bankruptcy hearing and will still attach to the property after the proceedings are completed.
Again, filing a motion to avoid judicial lien involves many different steps and eligibility requirements- it may be necessary to contact a lawyer for help with this stage of debt avoidance. If the debtor is successful, the court will grant an “Order Avoiding Judicial Lien”, which will remove the lien, either completely or partially.
How Can Creditors Respond to a Motion to Avoid Judicial Lien?
It is usually possible for the creditor to file an objection to a motion to avoid judicial liens. There are also filing deadlines associated with such objections; if the creditor doesn’t respond in the proper time frame, they may lose their right to object to the motion.
The most common ground for disputing a motion to avoid judicial lien has to do with the valuation of the real estate. For example, if there is some dispute over the property’s true value, it may affect the debtor’s ability to avoid the judicial lien. Again, this can involve complex determinations that require the assistance of one or more professionals.
Do I Need a Lawyer for Assistance with Judicial Liens?
If you have any issues or concerns with judicial liens, it may be necessary for you to contact a lawyer for assistance. An experienced attorney in your area will be able to inform you of how the laws work in your area, especially those covering judicial liens. Your attorney can assist you in filing motions, preparing documents, and defending your property interests.
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Last Modified: 11-18-2014 03:12 PM PST
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