Consumer Bankruptcy Journal Spring 2016 | Page 23

TWISTS AND TURNS had objected.  The order overruling the motion to reopen the case stated the judge had weighed all pertinent factors, including creditors’ reliance upon the discharge and the debtors’ failure to avoid the judicial liens, and found these factors outweighed the benefit the debtors would receive if the case were reopened. What if your client owns no real property? In order to take advantage of the provisions of 11 U.S.C. § 522(f), you must establish that a judicial lien impairs a debtor’s exemption. If your debtor owns no real estate which they can exempt, any judicial lien is not impairing an exemption and § 522(f) The Bankruptcy Appellate won’t apply. Unless judicial liens can Panel (BAP) for the Sixth Circuit be avoided by some other method, the reversed on the basis that delay alone debtor’s fresh start will be impaired. did not constitute prejudice, that 11 This is because while the discharge U.S.C. § 350(b) had no time limitation, provided by 11 U.S.C. § 524(a)(1) and that prejudice to creditors could will render a judgment underlying not be presumed solely due to delay.  the judicial lien void, and creditors Although the decision is unpublished, should release liens based on voided it contains a concise, yet thorough, judgments, they often don’t, so you recitation of some of the underlying need to be proactive. factors and legal principles to be Some courts hold that the considered when a motion to reopen is filed. Foremost, the BAP recognized provisions of 11 U.S.C. § 506 may be that avoiding judicial liens is a valid used to avoid judicial liens in situations “cause” to reopen a case since it offers where no exemption is impaired. A potential relief to debtors.3 However, it creditor has a secured claim only to also recognized that laches is a valid the extent of the estate’s interest in basis for denying a motion to reopen. any property of the debtor. 11 U.S.C. Of course, the doctrine of laches § 506(a). When a debtor has no requires not only unreasonable delay, impaired exemption, you may ask a but prejudice to the other party from the court to classify any claim of a judicial delay.4 Because the bankruptcy court lien holder as an unsecured claim presumed prejudice to the Yonishes’ since the lien will not have attached to creditors from the delay, without any any property. Pursuant to 11 U.S.C. proof that creditors relied on the failure § 506(d), a lien securing a claim which to avoid their liens or changed their is not an allowed secured claim is void. position as a result, its ruling was an Thus, once a claim secured by a judicial abuse of discretion, and the BAP lien is deemed an unsecured claim, and reversed and remanded for further once the debtor obtains a discharge of the underlying debts, the judgment proceedings. liens should be released. One method 3 See id. at *3 (citing In re for accomplishing this is to move to Oglesby, 519 B.R. 699 (Bankr. compel the release of such liens upon N.D. Ohio 2014)). entry of the discharge in a case. See 4 See id. (citing EEOC v. In re Blakely, Case No. 13-50069, Watkins Motor Lines, Inc., 463 F.3d 2013 Bankr. LEXIS 5474, at *3 (Bankr. 436 (6th Cir. 2006)). National Association of Consumer Bankruptcy Attorneys Spring 2016 E.D. Ky. March 27, 2013); see also In re Mayer, 541 B.R. 812 (Bankr. E.D. La. 2015) (applying § 506(d) to avoid wholly unsecured judicial lien against rental property where no exemption claimed, and noting Dewsnup5does not apply to nonconsensual liens). As a practice pointer, consider listing the specific liens being avoided in the order compelling their release, and include a provision which permits your client to record the order and a copy of his discharge in the event the creditors fail to release voluntarily. CONCLUSION Despite our best efforts to glean the full extent of the claims against our debtor clients, sometimes judicial liens are overlooked or unknown. If you need to reopen a closed case to avoid such liens, work to convince your judge that avoiding liens is a valid reason to do so, and that the passage of time by itself, without prejudice to creditors, should not bar such efforts. If you have debtors where 11 U.S.C. § 522(f) doesn’t apply because no exemption is impaired, consider using 11 U.S.C. §§ 506(a) and (d) to obtain an order avoiding judicial liens upon entry of a discharge in the case. \Firm Seminar Outlines\Avoiding Judgment Liens - NACBA article DAL 20160309.docx 5 Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 902 (1992). CONSUMER BANKRUPTCY JOURNAL 23