QUESTION

My lawyer failed to include judgment liens in my chapter 7 case in California. They are more than the 100k equity. Now I can't refinance or sell. Sue?

Asked on Jan 05th, 2018 on Bankruptcy - California
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My lawyer failed to include judgment liens on my home in my chapter 7 case in California. They are more than the 100k equity. Now I can't refinance or sell and it is affecting my credit . I have restarted my business since the bankruptcy 2 1/2 years ago and doing well and concerned that they may come after my business. Can I sue her for negligence? if so, What type of lawyer should I approach in this matter?
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Bankruptcy Attorney serving Burbank, CA
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When you say your lawyer "failed to include" judgment liens, I'm not sure what you mean.  If you mean they were not listed on your bankruptcy papers, that is not your lawyer's fault, unless you provided the lien information to them and they did not put them on the final papers that were filed.  Although even in that instance, you presumably reviewed the final papers before they were filed with the court, so I doubt you would have a good cause of action against them for malpractice if you signed the documents without the liens/debt being listed. If instead what you mean is that the liens were listed but your lawyer did not seek to have them avoided (i.e. removed) by filing the appropriate motion with the court, that is a separate issue altogether and whether it is negligence will depend on what your written agreement with the attorney provided.   In the Central District of California attorneys are required to list exactly what their representation includes and excludes, and in most cases something like a lien avoidance motion would not be included in the basic filing fees.  Your retainer agreement with the attorney would determine whether he/she was responsible for filing any motions to avoid liens. All that having been said, if your liens were avoidable on the date you filed your bankruptcy case, you can still seek to reopen your bankruptcy case to have them avoided now.  But it is a mathematical requirement, so the numbers must show you can do it.  You would need an appriasal of your property as of the date your case was filed, the amount owed all mortgages and other liens against the property, and the amount exempted on Schedule "C".  With that information an experienced bankruptcy attorney can determine if the lien(s) are avoidable. I suggest scheduling a consult with an experienced bankruptcy attorney in the district where your case was filed.
Answered on Jan 08th, 2018 at 3:15 PM

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