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My parents live with me, and my father received a judgment lien against him handled by the law firm of Morgan and Pottinger, PSC. The lien is in HIS NAME, but the DEED IS IN MY NAME.

 

1) How do I get the lien removed?

 

2) Should I ask for an exemption under KRS 427.060, even though the house isn't HIS homestead?

 

3) Should I ask to have the judgment vacated?

 

4) Is there a totally different way to get this lien removed that doesn't involve motions and hearing? 

 

5) What should I do, and how do I do it? I have no idea how to file either motion, nor the finances for an attorney.

 

 

 

 

 

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Guest usctrojanalum

I'm guessing you and your father share the same name? 

 

There is no Court intervention you can take to have the lien removed.  You can't request to have the judgment vacated because you are not a party to the action.  You have no standing to be heard in that case.  Typically what happens is, when you attempt to transfer assets you will have to get a letter from judgment creditor stating that the judgment is against John Smith with a date of birth of xx-xx-xxxx and a social security number of xxx-xx-xxxx.  Provide that to your title insurance company and they will clear the title.

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I'm guessing you and your father share the same name? 

 

There is no Court intervention you can take to have the lien removed.  You can't request to have the judgment vacated because you are not a party to the action.  You have no standing to be heard in that case.  Typically what happens is, when you attempt to transfer assets you will have to get a letter from judgment creditor stating that the judgment is against John Smith with a date of birth of xx-xx-xxxx and a social security number of xxx-xx-xxxx.  Provide that to your title insurance company and they will clear the title.

 

Actually, my parents used to own the house, but I bought it from them because they're elderly and had begun to need full-time care. I bought the house 2 years before this judgment, and I'm a woman so my name is not even similar to my father's. I have my father's Power of Attorney, so I think I could file things on his behalf. Any further thoughts?

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The debt that was the basis of the judgment lien might have existed prior to buying the house.  I don't know if that allows the lien or not but M&P might well argue that it does.

 

I disagree with moderator usctrojanalum about there being no court intervention available.  While you have no standing to request a vacation of the judgment, you as the owner of the home could have standing to have a court order that the lien is invalid against your property since you acquired it before the judgment.  You may not win that if there are were certain processes or filings prior to you taking ownership.  But homes cannot be taken just because the debtor is a relative and/or lives with you.  The lien may even be invalid on its face, depending on how it is worded or the laws in your state.  This is something you need to speak with a local attorney about because of the borderline complications involved.

 

I know of a case a relative of mine had that involved a lien on his property.  It was "invalid" because the named person never owned it.  The state recorded the lien and said they had no authority to remove it without a court order.  The court order was gotten with a short meeting with a (different) judge in his office, who could see the error was very obvious.  There was some process that went on after the fact, but I think that was the original plaintiff filing a correction of address to the original court.

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The debt that was the basis of the judgment lien might have existed prior to buying the house.  I don't know if that allows the lien or not but M&P might well argue that it does.

 

I disagree with moderator usctrojanalum about there being no court intervention available.  While you have no standing to request a vacation of the judgment, you as the owner of the home could have standing to have a court order that the lien is invalid against your property since you acquired it before the judgment.  You may not win that if there are were certain processes or filings prior to you taking ownership.  But homes cannot be taken just because the debtor is a relative and/or lives with you.  The lien may even be invalid on its face, depending on how it is worded or the laws in your state.  This is something you need to speak with a local attorney about because of the borderline complications involved.

 

I know of a case a relative of mine had that involved a lien on his property.  It was "invalid" because the named person never owned it.  The state recorded the lien and said they had no authority to remove it without a court order.  The court order was gotten with a short meeting with a (different) judge in his office, who could see the error was very obvious.  There was some process that went on after the fact, but I think that was the original plaintiff filing a correction of address to the original court.

Thanks so much. I'm still trying to figure out what my first step should be. As I noted previously, I have my father's Power of Attorney, so I can file any type of motion on his behalf, but I don't know if it's better to try have him try to have the judgment vacated, or to simply see how I, as the homeowner, can have it removed. Thank you, though!

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It comes down to how your state handles mis-applied liens.

 

I would still file a motion with the court to "vacate in PART" stating "I was not named in the complaint" and "I was not served" and "yet the court chose to take action against me, apparently based on false statements and bad evidence provided by the plaintiff". I would ask for the court to find the plaintiff to be "in contempt" for those false statements and bad evidence, and have penalties ruled against them.  I would service a copy of that court filing on the plaintiff, and include a copy of the property title showing myself as owner.

 

I would also be sure of my status by making sure the dates involved in that case were after the sale of the property by getting a copy of that case from the court.

 

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Thanks so much. I'm still trying to figure out what my first step should be. As I noted previously, I have my father's Power of Attorney, so I can file any type of motion on his behalf, but I don't know if it's better to try have him try to have the judgment vacated, or to simply see how I, as the homeowner, can have it removed. Thank you, though!

Be careful with that unless you are an Attorney. My understanding is Power of Attorney is generally for making decisions and signing documents. It does not give you the ability to practice law or represent another in court.

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Be careful with that unless you are an Attorney. My understanding is Power of Attorney is generally for making decisions and signing documents. It does not give you the ability to practice law or represent another in court.

Depends on what the POA says. Have one for my dad, and it specifically states I can appear for him in court. In fact I brought a suit against a car mechanic who ripped him off for a car, and all I had to do was show my POA for him.

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Maybe Colorado is different.

Only a licensed attorney can represent another person in court. Ar. Code � 16-22-206

 

16-22-206.  Entitlement to practice.
  No person shall be licensed or permitted to practice law in any of the courts of record of this state until he has been admitted to practice by the Supreme Court of this state, and every person so admitted shall be entitled to practice in all the courts of this state.

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Many, many issues here. Where to begin.

The first question is, when was the lien applied. If the lien was applied AFTER you bought the home, then you might be able to get is removed by stating that it was misapplied. If the lien was applied BEFORE you bought the home, then you might be stuck with it.

I am betting that this house was bought with cash using a quit claim deed rather than a warranty deed. I say that because the OP would not have been able to get a mortgage in a warranty deed sale with this lien hanging around since the mortgage company would have had to taken a 2nd position with the lien in 1st position.

When a sale is done with a warranty deed, the lien would have been found and taken care of at the time of sale so that the OPs parents could hand the OP a clean title. With a quit claim deed, all the OPs parents would have done was given up their claim on the property to the OP. Had the lien been on the property at the time of the quit claim deed, the lien would still stay intact until a time came when the lien would have to be satisfied to obtain clean title. Hence, the lien could be valid IF it was applied before the sale and all proper wording and process was followed.

One can also use the courts to remove an invalid lien. It is called a Quiet Title Proceeding and what happens is that the owner files a suit for the lien holder to prove that the lien is valid. If the line holder proves that the lien is valid, the lien stays on the property. If the lien holder cannot prove that the lien is valid or there are legal defects in the lien, then the judge orders the lien removed from the property and it is recorded with the county recorder or however property information is recorded in your state. The property is then free from that lien. The current owner of the property is the one who files a Quiet Title Proceeding so the case can be brought regardless of who the judgement is against as this is a separate issue.

The problem though is that the quiet title proceeding is expensive (about $3000) and something you want to have a lawyer help you with. What the OP can do is if this is a small judgement, he can come up with a settlement to remove the lien by stating that if they do not settle, he will file for this hearing and it will cost them quite a bit with a chance they can lose. That might be the best way to get the lien removed.

Finally, as for POA, I think one with a POA can stand in court to argue a case for the person they have the POA for. To not allow that would possibly be a violation of the due process rights for the person the POA is on because they would not be able to fight for themselves due to their condition.

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