Legal Question in Banking Law in California

I have a second mortgage on my home that was charged off in chapter 7 GK in 2012.

How do I remove the lien on the house?


Asked on 4/13/14, 7:48 am

1 Answer from Attorneys

You don't unless the lien was ordered stripped in the bankruptcy, in which case you record a certified copy of the order stripping the lien. A twist of California deed of trust law (what you are calling a mortgage, in CA, is actually a deed of trust - similar but different in some key ways) is that the lien survives even when the debt becomes void or unenforceable, unless the lien is separately voided. Also, a charge off is a tax process that is really between the IRS and the lender. The lender can only do that when their chances of collecting are commercially unlikely to result in payment, but again, that does not mean the debt goes away. It just means that if the lender somehow later gets paid in whole or part, it becomes income that is taxed, rather than repayment of principal, which is not. That's why bottom feeder collection agencies buy thousands of charged off debts and try to collect them. Because they only pay sometimes less than a penny for a dollar's worth of bad debt, the few they manage to collect on are enough to make the process profitable, even after paying taxes on the profit from the difference between what they paid for the debt and what they collected. Turning back to your lien, if you think you have some legal basis for stripping the lien, you should talk to a lawyer in person. Otherwise, it probably will have to be paid once you sell the house.

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Answered on 4/13/14, 8:53 am


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