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<p>My analysis is slightly different than and/or expands on Dwight's
first paragraph.</p>
<p><br>
</p>
<p>6.13.090 was enacted after a Supreme Court decision held that a
judgment lien would not attach to homestead property until after
an appraisal procedure was done in the court proceeding. That
obviously would be rather cumbersome, so the recording procedure
was enacted as a substitute. I don't remember the name of that
case, but it is probably a year or two prior to the enactment of
6.13.090, whenever that was (I'm guessing pre-1984). <br>
</p>
<p><br>
</p>
<p>That said, I don't think the bankruptcy filing claiming homestead
is conclusive. I agree that if it did not attach pre-petition
that nothing could be done after the filing to get it to attach
without violating the stay and/or discharge order. But that
assumes the property was homestead property the entire period
after entry of the judgment. But that might not be the case. For
example assume these facts: The judgment was entered, two years
later the judgment debtor started renting the property out for
five years, then lived in it again for two years, then filed
bankruptcy claiming homestead. I would argue the judgment
attached during the five year rental period. You would then need
to determine if the debtor could have avoided the judgment during
the bankruptcy under 522(f) to know whether it's worth pursuing,
because unless something has changed with the Bankruptcy Act they
could still reopen the case and avoid the lien.</p>
<p><br>
</p>
<p>As to Dwight's second paragraph I I'm not sure either side could
do a motion in the bankruptcy court since it's really asking for
declaratory relief. That might require an adversary proceeding
rather than a motion, and unlike a 522(f) motion I'm not sure you
could reopen the case for such an adversary proceeding. This
might be an area where the state courts would have concurrent
jurisdiction to determine whether or not the lien attached
pre-petition. If the state court has that jurisdiction and
decides it did attach pre-petition, then the bankruptcy court
could still determine whether it could be avoided under 522(f). I
think the bankruptcy court may have exclusive jurisdiction on that
issue.<br>
</p>
<p><br>
</p>
<p>Disclaimer: I'm old, forgetful (or at least so says my wife) and
I have not practiced bankruptcy for approximately 15 years now,
none of which was under the current Bankruptcy Act. Oddly I think
my recollection for the material in the first paragraph is better
than for the second, even though the latter is over 35 years old.
I would advise looking to a current bankruptcy practitioner to get
their analysis of how to proceed if the property was in fact not
homestead property for a period of time between entry of the
judgment and the filing of bankruptcy.<br>
</p>
<pre class="moz-signature" cols="72">Kary L. Krismer
206 723-2148</pre>
<div class="moz-cite-prefix">On 9/29/2020 2:30 PM, Dwight Bickel
wrote:<br>
</div>
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My understanding about the relevant law is that the lien did
not attach to the real property prior to the filing of the
bankruptcy, because the property was homestead. I presume
homestead was formally stated in the bankruptcy petition,
without contest that is now established. See <i>Lien v.
Hoffman</i> , 49 Wash. 2d 642 (Div II 1957). I don't
remember that issue discussed in a subsequent case. It
pre-dates RCW 6.13.090 related to creating a lien upon excess
value in homestead property, which was not done in your case.</div>
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<div style="font-family: Calibri, Helvetica, sans-serif;
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After the Discharge, the creditor is prevented from further
enforcing the debt, so the creditor is barred from recording
that judgment or other execution procedures. I don't think 11
USC 522 (f) is needed because there is no lien upon the real
property, but if you have difficulty convincing a title
company to remove that judgment as an exception to allow a
mortgage or a sale, it might be possible to seek that Order
confirming there is no lien that would interfere with the
homestead exemption. I have not seen a motion for that Order
in these circumstances. </div>
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<br>
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<div id="Signature">
<div>
<div style="font-family:Calibri,Helvetica,sans-serif;
font-size:12pt; color:rgb(0,0,0)">
</div>
<span>Dwight A. Bickel<br>
</span>
<div>Washington Title Professional<br>
</div>
<div><a class="moz-txt-link-abbreviated" href="mailto:dwightbickel@hotmail.com">dwightbickel@hotmail.com</a><br>
</div>
<div><a class="moz-txt-link-abbreviated" href="http://www.linkedin.com/in/dwightbickel">www.linkedin.com/in/dwightbickel</a><br>
</div>
<div><a class="moz-txt-link-freetext" href="http:/www.titleadvisor.com">http:/www.titleadvisor.com</a><br>
</div>
<span>206-484-1976</span>
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