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Avoiding & Stripping Liens
By Richard D. West, Esq.
With Carl R. Gustafson, Esq.
340 pages / 337 Cases cited
Sample motions & briefs
Includes section on using Chapter 13 to deal with foreclosure
25 pages added and
15 new cases cited
Expanded discussion of key issues
Updated and enlarged "Avoiding and Stripping Liens in Consumer Bankruptcy Cases," a guide for consumer bankruptcy attorneys on debtors', trustees' and creditors' respective rights to strip, avoid and otherwise deal with liens in bankruptcy.
RICHARD E. WEST is admitted to the United States Supreme Court, U.S. Tax Court, Court of Appeals for the Federal Circuit, United States Court of Federal Claims, Court of Appeals for the Sixth Circuit, United States District Court for the Southern District of Ohio, and the Ohio Supreme Court.
He is a member of the American Bankruptcy Law Forum, the National Association of Consumer Bankruptcy Attorneys, Ohio State Bar Association, and the Dayton Bar Association.
Richard is a frequent lecturer on bankruptcy topics and has delivered lectures for all three of the major seminar companies, as well as for the Ohio State Bar Association.
He graduated from Franklin High School and served in the United States Navy. After military service, he was employed by NCR as a computer engineer. He completed his undergraduate degree at St. Joseph's University in Philadelphia, and he earned his law degree from Temple University in 1986.
ABOUT THE CONSULTING EDITOR
CARL R. GUSTAFSON graduated with honors from the University of California, Berkeley School of Law in 2007. In 2005, he was a legal intern for Global Justice in Rio de Janeiro, Brazil where he drafted sections of human rights situation reports and submitted them to the United Nations and other international bodies.
Additionally, he researched issues of international jurisdiction and enforcement of international treaties.
Gustafson opened the Lincoln Law California offices in Pleasant Hill, California and focuses his practice exclusi vely on bankruptcy law in the East Bay.
The firm now has offices located in Utah as well as California. Mr. Gustafson is a member of the National Association of Consumer Bankruptcy Attorneys, the American Consumer Bankruptcy College, the King Bankruptcy Academy, and the Alameda Count Bar Association Bankruptcy Section.
1. Lien Avoiding Powers of Debtor
a. Explanation of Code Section §522i. Expanded Powers of §522 under BACPA
2. Debtor Exemptions Rights. Full or partial Interest in property
3. Equity or no equity in the property
4. When is the debtors claim of an exemption right to property finalized?
a. Case law holdings barring a debtor to objection to an exemption right unless the creditor objected within 30 days of the creditors meeting. Bankruptcy Rule 4003
b. In contrast case law holdings that in a §522(f) action creditor is not barred from raising exemption or valuation issue after 30 deadline has run under Rule 4003.
c. Debtor Right to Lien Avoidance under §522(f)
i. ACTIONS TO AVOID LIEN DONE BY MOTION as prescribed by Bankruptcy Rule 4003(d).
ii. Avoidance of a Judicial Lien §522(f)(1)(A)
1. Extent and Definition of a Judicial Lien defined
a. Discussion of the effect of liens granted in a divorce proceeding
2. Effect on Creditor and Creditors rights after a Lien is avoided
3. Limitations on power to avoid Judicial Lien
a. What is outcome when there is a portion of the property that is non-exempt?
b. What came first the debtor's interest in the property or the lien and what happens under each scenario?
c. §522(f)(1)(A) limitation on ability to avoid liens that are in the nature of alimony, maintenance, or support.
iii. Debtor Right to Avoid Non-purchase Money Security Interests under §522(f)(1)(B)
1. Explanation of the difference between a PMSI and non-PMSI: With a PMSI, the debtor buys the collateral with the funds from the secured creditor. With a non-PMSI, the debtor already owns the collateral.
2. Definition of what is and is not household goods
3. Limitation imposed by §522(f)(3)
4. Discussion of case law issues related to Tools of the Trade under §522(f)(1)(B)(ii)
c. Debtor Right to Avoid Transfers and Claim property as exempt under §522(g)
i. Voluntary versus non-voluntary transfers
ii. Discussion of §522(g)(2)
d. Debtor's Right to Step into the Shoes of the Trustee and avoid liens that the trustee has the authority to avoid but elects not to as prescribed under §522(h)
i. Voluntary versus non-voluntary transfers
ii. Application of powers under §522(h) and limitations
iv. Debtor's ability to avoid mechanics liens and repairmen's liens under §544(a)
v. Debtor's ability to set aside preference under §547 for:
1. Tax refund garnishments by state and governmental agencies
2. Payments made to collection agencies
vi. Debtor's ability to avoid post petition transfers under §549
II. Trustee's Lien Avoidance Powers
a. The Strong Arm Clause §544i. Explanation of the 3 types of transfers that are voidable by the trustee under §544(a)
ii. Perfected versus non-perfected security interest as defined under the UCC and ability of the Trustee to avoid a lien.
iii. §544(b) and Fraudulent Conveyances under State Law
b. Statutory Lien Avoidance under §545
i. Definition and explanation of code section
ii. Effect with various tax liens
c. Trustee's ability to avoid liens as a preferences under §547
i. Definition and examples of when the avoidance power may be used
ii. Limitation of avoidance powers as outlined in §547(c)
d. Trustee's ability to avoid fraudulent transfers under §548
i. Definition and conditions of trustee power under this code section
e. Trustee's power to avoid post-petition transfers under §549
i. Examples of post petition transfers that can be avoided
ii. Limitation on avoidance including
1. Lack of notice to creditor of bankruptcy filing
2. Transfer made by a debtor involved in an involuntary bankruptcy filing
f. Trustee's power to avoid Liens securing fines, penalties and forfeitures under §724(a)
i. Application only to Chapter 7 cases not Chapter 13 cases
ii. Definition of when the power becomes effective
iii. Application with respect to tax liens
III. Lien Stripping of Second Mortgage in Chapter 13
a. Legal Basis for Lien Stripping under the Federal Bankruptcy Codei. Relevant Bankruptcy Code Sections1. §506(a)
ii. Determining First and Second Lien Priority and Eligibility for Lien Stripping
iii. Distinction based on whether it is the debtor's principal residence or not
iv. Proper way to determine value of the proper and whether there is any equity in the property and how much is too much
b. Pre-Filing Consideration
i. Client Counseling1. Chapter 13 Eligibility
2. Feasibility Considerations
ii. Due Diligence Research
1. Property Valuation Considerations
iii. Debt Limits
1. Ethics and Application of Chapter 20 approach
iv. Schedule Preparation in Chapter 13
1. Do's and Don'ts for how to schedule creditor in chapter 13 plan
2. Suggested Disclaimer and implications/consequences for omission
c. Drafting the Complaint
i. Motion versus Adversary1. Pros and Cons discussed
2. Procedural Difference
ii. Identifying the Parties to Serve / Sue
1. What parties need to be joined as parties to Adversary or Motion and what parties must be served
2. How to research and list all parties
a. Application of FRCP 19 regarding joinder
b. Application of Bankruptcy Rule 7109
3. Service of Process
a. Applicable Bankruptcy Rulesi. Bankruptcy Rule 7004(h)
ii. Bankruptcy Rule 7004(b)(3)
b. Best Practice Tips
i. To Name officer or not to Name Officer
ii. Serve P.O. Box Yes or No?
iii. Is service to attorney who filed notice of appearance on behalf of creditor sufficient?
iv. Tips to include in Certificate of Service to limit liability
iii. Introducing Evidence
1. What does it take to make your case?
3. Common Objection by Creditors and Practice Tips for preventing reversal of a successful decision on appeal
iv. Motion for Summary Judgment
1. How do you make the case?
1. Practice Tips
vi. Final Judgment / Resolution
IV. Appendix (Sample Documents)
a. Debtor's Rights to Avoid Liens (Sample Documents)i. Motion to Avoid Judicial Lien
1. Order on Motion to Avoid Judicial Lien
ii. Motion to Avoid Non-Purchase Money Security Interest
1. Order on Motion to Avoid Non- Purchase Money Security Interest
b. Trustee's Lien Avoidance Powers
i. Sample Pleadings filed by debtor under §522(h) stepping into the shoes of the trustee (I need to do some further research but I will come up with a few sample pleadings under this heading
c. Lien Stripping of Second Mortgage in Chapter 13
i. Complaint to Determine the Nature, Extent and Validity of Lien and to Disallow Secured Claim
1. Sample Order
ii. Motion For Valuation of Debtor's Residence and Avoidance of Junior Trust Deed Thereon
1. Sample Order
iii. Retainer Letter Agreement with Client regarding Potential Striping of Second Mortgage Lient
iv. Sample Resolution Letter to Client