Is Your Propery Encumbered By A Lien?
If you are getting ready to sell your home, the sale could be held up if you have any type of lien on the property. This lien will have to be satisfied prior to you being able to sign over the deed. The question is whether it is a property lien or a judgment lien. The answer may lie in how the lien came into existence. Here is some information that will help you figure out the differences between the two.
When you purchased your home, financed a vehicle, or made some other type of large purchase that you were not able to pay for in full, you probably incurred a property lien. This means that the company that is extending you credit reserves the right of ownership of the property in the case that you default on your payments. If this were to happen, they would then come and take the property back.
For example: The financial institution that has financed your vehicle is listed as a lienholder on the title. You must first satisfy the terms and conditions they have imposed, which is usually to pay off the balance of your loan, for them to release their lien or allow you to sell or dispose of the vehicle. They are technically co-owners of your vehicle until it is paid in full. If you do not make your car payment, the lienholder has the right to repossess the vehicle.
The lienholder is required to record the property lien with the state. Very rarely will you find a property lien that you are not aware of, as you have probably given the lienholder permission to file one in exchange for financing the possession.
If you do not pay for property that is unsecured, or not anchored with a property lien, the creditor must find ways to collect on that debt. In addition to repossessions or foreclosures, they may also try wage garnishments or other forms of collection. If they are unable to collect the debt through these means, there is a possibility that they may place a judgment lien against real property such as your home.
To do so, they must first obtain a judgment against you for the amount they say you owe. You must be given notice of this hearing, as you will have the ability to show that you do not owe the debt, or reasons that you should not have to pay it. If the court rules in favor of your creditor, they will issue a lien against your property that your creditor must then file or record in the county where you live.
Once a lien is placed, it must be removed or satisfied before you can sell, trade, or refinance the property. There are several ways that you can do this.
- Pay what is owed – Once the lien is paid in full, your lienholder will issue a notarized Release of Lien form that you will then take to the clerk of court.
- Negotiate a settlement – Depending on how much you owe and how long you have owed it, your creditor may be willing to release your judgment lien for less than the full amount you owe. This will vary from creditor to creditor.
- Ask the court to release the lien – If you can show that the lien was placed by fraud or by bad faith, the court may be willing to release the lien without you having to pay it.
- Avoid the lien – Certain liens can be disposed of through the filing of bankruptcy. This may only apply to certain liens and may only be up to certain amounts. These vary case by case.
These are not the only ways you can release the lien on your property. A residential real estate attorney from a law firm like Hornthal Riley Ellis & Maland LLP may be able to advise you and help you find other ways. If you have a property that is encumbered by a lien, contact an attorney in your local area. They will be glad to review your case and help you resolve your issues.