Removing Pre-Bankruptcy Judgment Liens
A successful bankruptcy case generally results in the entry of a discharge order by a Bankruptcy Court eliminating a debtor's liability on many debts. This includes a discharge of debts held by creditors who obtained court judgments, such as from the Superior Court of New Jersey. It is common, however, that these creditors’ judgments still appear as liens against debtors' real property in New Jersey long after their bankruptcy case has concluded. This is because Bankruptcy Court discharge orders do not, without further action, remove judgment liens from debtors' real property.
By way of background, it is a well-settled principle of law that liens may survive a bankruptcy discharge. A bankruptcy discharge serves merely to discharge a debtor's obligation to pay the debt which the judgment or other lien secures; it does not affect the lien itself. This is because the bankruptcy proceeding, in and or itself, does not affect the nature and quality of the title to the debtor’s real estate. So if certain liens or encumbrances are secured by a debtor's property at the time they file a bankruptcy petition, and no affirmative action is taken to remove those liens or encumbrances during the course of the bankruptcy proceeding, the liens and encumbrances will still exist at the time the case is concluded. In short, property is not "washed" of liens simply by passing through bankruptcy.
So while a bankruptcy discharge prevents a creditor from attempting to collect its debt against a debtor directly, a creditor's docketed judgment lien remains secured against a debtor’s New Jersey real estate. This is because, in New Jersey, once a creditor obtains a judgment, it may docket its judgment on the index maintained by the Clerk of the Superior Court of New Jersey in Trenton, New Jersey. At that point, that judgment becomes a statewide lien on any real estate owned by the debtor in New Jersey. A New Jersey docketed judgment remains in the judgment index for 20 years, and can be renewed by a creditor’s timely application.
A procedure exists in bankruptcy court to remove a judgment lien against a debtor’s real estate pursuant to 11 U.S.C. 522(f). However, because New Jersey has a statute that provides for discharging or cancelling a judgment following a one (1) year period after a bankruptcy discharge is entered, in many instances it is advisable for debtors to wait a year and apply to discharge the judgment in the original New Jersey Superior Court judgment case. This can be a relatively straight-forward and inexpensive means of clearing the judgment from the index and from title to the debtor's New Jersey real property.
The applicable statute, N.J.S.A. 2A:16-49.1, Application; hearing; order; cancellation and discharge; effect on lien; notice of application; set-off, states as follows:
At any time after 1 year has elapsed, since a bankrupt was discharged from his debts, pursuant to the acts of Congress relating to bankruptcy, he may apply, upon proof of his discharge, to the court in which a judgment was rendered against him, or to the court of which it has become a judgment by docketing it, or filing a transcript thereof, for an order directing the judgment to be canceled and discharged of record. If it appears upon the hearing that he has been discharged from the payment of that judgment or the debt upon which such judgment was recovered, an order shall be made directing said judgment to be canceled and discharged of record; and thereupon the clerk of said court shall cancel and discharge the same by entering on the record or in the margin of the record of judgment, that the same is canceled and discharged by order of the court, giving the date of entry of the order of discharge. Where the judgment was a lien on real property owned by the bankrupt prior to the time he was adjudged a bankrupt, and not subject to be discharged or released under the provisions of the Bankruptcy Act, the lien thereof upon said real estate shall not be affected by said order and may be enforced, but in all other respects the judgment shall be of no force or validity, nor shall the same be a lien on real property acquired by him subsequent to his discharge in bankruptcy. Notice of the application, accompanied with copies of the papers upon which it is made, must be served upon the judgment creditor, or his attorney of record in said judgment, in the manner prescribed in R.R. 4:5-1, et cetera, of The Revision of The Rules Governing the Courts of the State of New Jersey (1953);1 provided, however, nothing herein contained shall prevent said judgment notwithstanding such discharge of record from being used as a set-off in any action in which it otherwise could be used.
Accordingly, in order for an application under N.J.S.A. 2A:16-49.1 to be successful, the following conditions must generally be met:
1) one (1) year has elapsed since the discharge of the bankrupt; and
2) the debt or lien was scheduled in the bankruptcy petition; and
3) the debt is dischargeable.
Since 1993, Middlebrooks Shapiro, P.C.'s New Jersey bankruptcy lawyers have been assisting debtors in the removal of judgment liens from real estate that were previously discharged in bankruptcy.
If you have a pre-bankruptcy judgment lien that prevents you from refinancing or selling your real estate, or otherwise clouding your title to your real property, contact our Firm today for a free consultation.