The other day I blogged about Judgment Liens and how they come into being. In Bankruptcy, a Florida resident debtor can Motion the Bankruptcy Court for an Order removing a Judicial lien from their homestead residence. It is a relatively simple procedure if done correctly. The reason that this procedure must be filed is to avoid problems later when a debtor wants to refinance or sell their homes.
It is important to note at the beginning that in order to avoid the judgment lien, the lien must have attached to homestead property. In Florida, we cannot remove a judicial lien from non-homestead property. The filing of a bankruptcy petition and schedules alone is not enough to remove a lien on a homestead because liens survive bankruptcy, debts are discharged. This is a very complicated but important concept. So, how does a person remove the lien. In Florida, there are two ways: First, a debtor can file a motion seeking bankruptcy court intervention and an order from the bankruptcy court lifting the lien.
Second, Florida Statute 222.01 sets forth a procedure to do the same thing by affidavit. The debtor can prepare the affidavit and take the steps set forth in the statute. Basically, the debtor must notify the lien creditor of his intent to sell or refinance the home. The creditor has 45 days pursuant to the statute to contest the debtor’s homestead status.
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