hot in az

Judgment lien not removed after an appeal reversal.

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Hi , I have a similar situation to Who Cares. I did own a house when the judgement was entered. But I appealed and the judgement was reversed.  They never removed the judgment and it was included in my BK.   I showed the title company the paperwork on the appeal , but they insist my atty or Midland removed the lien.  Have not heard from the atty except to say on the docket the judgement was included. How should I proceed to get Midland to remove it. Will showing them the appeal reversal be enough???

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15 hours ago, hot in az said:

. . . I did own a house when the judgement was entered. But. . . the judgement was reversed.  (The judgment creditor) never removed the judgment and it was included in my BK.   I showed the title company the paperwork on the appeal , but they insist my atty or Midland removed the lien. . .  How should I proceed. . .?

Not enough info.  Please answer the following:

1.  When you say the judgment was reversed what do you mean?  Did the AZ Court of Appeals completely throw the case out or remand it back to the Superior Court for further determination? 

2.  If the judgment was completely thrown out why do you think your bk discharge has any bearing?

3.  What are you attempting to do, buy a home or sell the one you live in?

4.  Is the property you are trying to buy or sell in Arizona?

5.  If selling, is the property your only residence?

6. If buying, will this property be your only residence?

7. If you are selling or buying in Arizona, what title company are you using?

Des.

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HI, Sorry who cares. Misread your post.   

Hi Des, Thanks for your response. 1. It was reversed and remanded. Back to civil court, where the trial was much later and I lost, but they never filed a new judgement because of the new appeal.  Forward to the next year and I lost the appeal and immediately filed BK.

2. Don't really know       3.Refi my existing residence from an ARM to a fixed rate    4. Primary residence in AZ   5. Not selling

6.NA  7. National Title    Thanks, Pam

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The title company.  The lender is my bank. My current mortgage company cannot  refinanced as they no longer do business in AZ. The title company took all of my paperwork and told the bank that the underwriter saw this lien by Midland. The original judgement that was entered in 2013. I sent them the appeal reversal showing it reversed, as Midland never entered a judgement in 2015.  

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Wait, this is a lien? If so, you file a motion in the original case to release the lien. Midland probably won't respond so you'll win by default. Then you take a certified copy of the court order to the county recorder and they will release the lien. 

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10 hours ago, hot in az said:

The title company.  The original judgement that was entered in 2013. Midland never entered a judgement in 2015.  

Since the problem is the title company and not the lender, have the lender move the escrow to First American Title.  Assuming you have less than $150k in equity the judgment lien DOES NOT attach to your residence.  It is unlikely that FAT will hold up the closing due to the recording of the lien if your equity is within the Arizona homestead exemption.  Do you have more than $150k in equity?

Next. . . Was the judgment entered/recorded before or after August, 2013?  If it was entered/recorded before August, 2013 and was not timely renewed it died after 5 years,  If it was recorded after August, 2013 (not sure of the exact date so figure August 1st) then it is a lien for 10 years.  Again, the legal department at FAT will figure this out.

As to the suggestion of reopening your bankruptcy case to avoid the lien (pursuant to ll U.S.C. 522(f)), such is not really necessary in Arizona.  See In re Rand, 400 B.R. 749 (Bankr. D. Ariz. 2008) for a very good analysis:

https://www.courtlistener.com/opinion/1812349/in-re-rand/

Good luck and keep us posted.

Des.

 

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1 hour ago, despritfreya said:

As to the suggestion of reopening your bankruptcy case to avoid the lien

Where was this suggested? 

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Hi Des, I have just  less than 150  in equity.  The judgement was signed Oct 2013 and recorded Dec 12, 2013.  The banker told me that the title company said it was a lien attached to the property and had to be removed. Thats all I  know. The appraisal has been done and paid for and the loan rate locked in 2 weeks ago, so this is the final hold-up.  Pam

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I havent heard from him yet. I e-mailed on Friday offering to pay him to try and get the judgment removed. I'm kind of stuck until I hear from an atty on what to do. Just when you think you are done with Midland Right???

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No questions are dumb. And no I haven't. Just google their number and give them the case number.  And then say what" Why don't you just remove this judgment?

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Pretty much. Contrary to all of the hysteria about them being "evil," I suspect they have an entire department dedicated to cleaning up stuff like this.

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OK, Called Midland.  Transferred 3 times. They finally were trying to transfer me to the BK dept,  On hold 20 minutes he came back to say they were busy , could I call back tomorrow.   Classic Midland

 

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Pam,

I applaud you for taking the initiative in contacting Midland directly and hopefully you will reach someone with half a brain and get the matter resolved.  Barring that happening, the next step might be to have your bk attny contact Midland’s attny.  

Who was the attny for Midland back in 2013?  That attorney may not represent Midland now.

Midland, in one of my current cases, used the following attorney for its State Court judgment:

JOHNSON MARK. LLC
1601 N. 7th Street, Suite 250
Phoenix, AZ 85006
Rhett Flaming-Buschman (SBN 031501)
Jonathan D. Anderson (SBN 032058)
arizona@jmlaw.pro
866-356-3838

I do not know if this firm can help but I can tell you that Mr. Anderson responded to my concerns quickly and professionally.

If all else fails and/or you are unable to "buy" the lien release (which may be cheaper than going back to court), and since you are close to the cap for the exemption, reopening your bk to avoid the lien may be in the cards.  How long has it been since you got your Discharge?

Des.

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Bursey and Associates were the atty firm.  Not sure if they are still there. Were in Tucson, Az

The BK discharge is 4 months shy of 4 years. I know because if I wait until Sept to refinance my rate would be 1/2 point lower as their conformity loan is 4 years after BK. I got a direct number to Midlands BK specialist and left a message to call me. I will try again 2 morrow. Have not heard from my former atty .  Will try one more time there as well.  Pam

 

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Des . I believe ironically that the atty for then Jerrold Kapman  who I won my case against in superior court was R. Flaming-Buschman. I think it was one of his first trials . I think I had more court time than he did. Kinda felt sorry for him.  Glad he kept with it. So are you talking about a Pay to delete?  I thought that had to be under a specific amt.

I wish I could see what the title company sees as a property lien.  I cannot see Midland in 2013 with so many cases ever attaching that to property. Also in BK they never came after assets awarded them.  Thanks for you help!! Pam

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1 hour ago, hot in az said:

I wish I could see what the title company sees as a property lien.

You can, if it actually exists.  I agree with you that it would be incredibly rare for Midland to put a lien on someone's house over a credit card debt, so I don't believe the title guy is seeing a "lien".  A lien has to be recorded with the county recorder to have any real effect.  If you searched the county records and didn't see anything with "LIEN" in the 'document code' column, as opposed to "CV JUDG" or "JUDGMENT", there is no lien against you.  Also, the lien would be recorded separately from the judgment, so on a judgment lien, you would see the judgment as one document, and the lien as another.  I think the title guy is seeing the JC judgment on the recorder website and either mistakenly calling it a lien, or is just covering his backside by telling you it's a lien assuming you won't know the difference.

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Thank you  That makes a lot of sense. Not how to proceed with the bank though.  Des said to have them move escrow to the title co, however they told her they already sent this to legal and it would not pass.

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Pam,

1.  It is not rare for Midland (a junk debt buyer) to place a lien against someone’s real property and 2) the word “lien” is not determinative as to what is or is not recorded.

Under Arizona law. . .

A.  Any creditor who obtains a judgment in any amount has the right to record that judgment with the County Recorder.  Midland routinely records its judgments (been there-done that).  

B. A recorded judgment IS a lien against all real property with the exception of the homestead residence unless the homestead residence has more than $150k in equity after consideration of all consensual liens.

I think you indicated you are in Tucson.  Unlike Maricopa County, a public records search off of the Internet in your County  is limited.  Either get a copy of the recorded judgment from the title company or physically go to the County Recorder’s office for a copy.

Regardless, based upon your later posts it does not appear to be a title company issue.   The title report showed the lien.  The lender ran it past it's own legal department or simply decided that the transaction was not worth it unless the lien was removed.  My guess is the lender is telling you that the problem is with the title company in order to pass the buck.    In reality, the lender does not want to risk being junior to the recorded judgment.

Most title companies, when faced with the threat of lost business, will follow the law and close over a judgment lien as it relates to the homestead - but not if one of the parties to the transaction (the lender in your case) says “no”.   I would argue that if the lender (who chose the title company) is not willing to move the escrow, the reason is because 1) it has a contract with the title company and 2) is the one that said “no” once it found out about the judgment lien.  Since the lender controls the transaction, you are going to have to either find another lender (but may have the same problem) or get the judgment lien released or subordinated.

Just my opinion having dealt with this issue on many occasions.

Des.

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Thanks Des,  In your opinion is it wasted time to keep trying to reach Midland.  And how do I get this judgment released??  And my lender did say this was the title companies issue, not theirs.  I am in Phx,  Bursey who was Midlands atty is in Tucson. Also in the the loan contract it says the lender,(my credit union) will not service the loan. So if they are made aware of the homestead exemption maybe that will help?  Pam

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Hi again,  Just heard back from Mr. Skiba.

He says "If you have less than 150k in equity any lien they allege would have no value.  The title company would be required to pay off the first mortgage, the second (if any) , give you up to 150,000 for your homestead and then the balance would go to them.

However due to a recent court of appeals decision, I do not believe there is even a lien on the home, even if they recorded it."

The decision is: Pac.W.Bank v. Castleton, No. 1 CA-CV 17-0667 (ARIZ.Ct.App. Dec 27. 2018)"

I forwarded this to my lender with  any inquiry as to if the title company had sent a copy of the recorded judgment?  So I will update when I hear from her. Pam

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The problem you have is you cannot force the title or lender to do business with you. If they have a hard line policy of "no judgments", you're going to have to see if you can find another title co. and/or lender, or go to court to get the judgment cleared. 

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