Q: Filed Chapter 7 bankruptcy and discharged in 2014, liens from creditors that are all older than 10 years still exist.
My ex-husband and I filed Chapter 7 bankruptcy in Alabama and had it discharged in 2014, and then bought the property back in foreclosure from a different company. The liens from creditors, which were all from business loans that used the house and property for collateral before the bankruptcy and are all older than 10 years still exist on the real estate, the IRS also has a lien on the property. I'm trying to sell the property and would like to know if these liens can be removed, do a lien avoidance, or apply for an exemption.
There are 4 liens attached to this property that are valued well above the value of the house and property. After paying off the IRS and current mortgage from the sale it only leaves a few K after the sale. I have consulted the attorney's office that handled the bankruptcy, and they are not being helpful or reposeful, so I know I’ll have to hire an attorney.
A:
While unsecured general claims are discharged in a Ch. 7 bankruptcy, any claims with collateral where that lien is "perfected" by filing (in accordance with state law) are not discharged, and the lien survives with the claim. (Decades ago, Justice Thomas wrote the majority opinion for the decision, twisting the wording of the bankruptcy section (Sec. 506) to disallow any discharge or "strip down" of any liened claim in a Ch. 7 case. However, under current law, if there is a deficiency in any liened claim, that "deficiency" amount is deemed to have been discharged.
Of course, any liens attaching to the property after the general Discharge in the bankruptcy are also valid.
In short, based upon what your question states, the filed liens against the property cannot be removed other than by payment of the allowed amount of those claims, unless each creditor with a lien agrees.
Timothy Denison agrees with this answer
A: After a Chapter 7 bankruptcy discharge, while your personal liability for the debt is erased, liens on your property generally remain. However, since these liens are older than 10 years, you may have grounds to remove them by motioning the court, as liens often have a lifespan after which they become unenforceable; a similar procedure might be undertaken to deal with the IRS lien. Given your situation, it would indeed be beneficial to engage with a knowledgeable attorney who can guide you on how to potentially remove these liens, possibly through lien avoidance or asserting exemptions, to facilitate the sale of your property with clear title.
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