Posts Tagged liens
I sold some property that had a lien on it. I can’t afford to pay the lienholder. What is the punishment for this?
Posted by David Leon in Contract law, Criminal Defense, Real Estate Law on 07/05/2010
If you sell secured property (property with a lien on it) and you fail to pay the secured party from the proceeds, you may be charged with Hindering a Secured Creditor, a criminal offense. The potential punishment for this is governed by Tex. Penal Code Sec. 32.33(e):
(1) a Class C misdemeanor if the proceeds obtained from the sale or other disposition are money or goods having a value of less than $20;
(2) a Class B misdemeanor if the proceeds obtained from the sale or other disposition are money or goods having a value of $20 or more but less than $500;
(3) a Class A misdemeanor if the proceeds obtained from the sale or other disposition are money or goods having a value of $500 or more but less than $1,500;
(4) a state jail felony if the proceeds obtained from the sale or other disposition are money or goods having a value of $1,500 or more but less than $20,000;
(5) a felony of the third degree if the proceeds obtained from the sale or other disposition are money or goods having a value of $20,000 or more but less than $100,000;
(6) a felony of the second degree if the proceeds obtained from the sale or other disposition are money or goods having a value of $100,000 or more but less than $200,000; or
(7) a felony of the first degree if the proceeds obtained from the sale or other disposition are money or goods having a value of $200,000 or more.
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I just sold a property that had a lien on it. The lienholder demanded the money from the sale. How long do I have to pay the lienholder?
Posted by David Leon in Business law, Contract law, Real Estate Law on 07/05/2010
As an ideal matter, a lienholder should be paid at closing. Texas penal code sec. 32.33(e) provides: a person is presumed to have intended to appropriate proceeds if the person does not deliver the proceeds to the secured party or account to the secured party for the proceeds before the 11th day after the day that the secured party makes a lawful demand for the proceeds or account.
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There is a lien on my property. I just sold it for cash, but I can’t afford to pay the loan. Now the lienholder is trying to repossess. What can they do to me?
Posted by David Leon in Contract law, Criminal Defense, Real Estate Law on 07/05/2010
A person who is a debtor under a security agreement, and who does not have a right to sell or dispose of the secured property or is required to account to the secured party for the proceeds of a permitted sale or disposition, commits an offense if the person sells or otherwise disposes of the secured property, or does not account to the secured party for the proceeds of a sale or other disposition as required, with intent to appropriate the proceeds or value of the secured property. Tex. Penal Code. 32.33(e)
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What are the penalties for hindering a secured creditor?
Posted by David Leon in Consumer & Credit, Criminal Defense, Real Estate Law on 07/05/2010
You need to look at Sec. 32.33 (d) of the Texas Penal Code for the penalties associated with Hindering a Secured Creditor:
(1) Class C misdemeanor if the value of the property destroyed, removed, concealed, encumbered, or otherwise harmed or reduced in value is less than $20;
(2) Class B misdemeanor if the value of the property destroyed, removed, concealed, encumbered, or otherwise harmed or reduced in value is $20 or more but less than $500;
(3) Class A misdemeanor if the value of the property destroyed, removed, concealed, encumbered, or otherwise harmed or reduced in value is $500 or more but less than $1,500;
(4) state jail felony if the value of the property destroyed, removed, concealed, encumbered, or otherwise harmed or reduced in value is $1,500 or more but less than $20,000;
(5) felony of the third degree if the value of the property destroyed, removed, concealed, encumbered, or otherwise harmed or reduced in value is $20,000 or more but less than $100,000;
(6) felony of the second degree if the value of the property destroyed, removed, concealed, encumbered, or otherwise harmed or reduced in value is $100,000 or more but less than $200,000; or
(7) felony of the first degree if the value of the property destroyed, removed, concealed, encumbered, or otherwise harmed or reduced in value is $200,000 or more.
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What is a wrap around mortgage?
Posted by David Leon in Real Estate Law on 25/12/2009
A typical wrap around mortgage is when a borrower sells a house to buyer, and the buyer is responsible for paying the first mortgage. In many cases, the seller takes the payments from the buyer and pays the first mortgage directly.
For example, Joe has a mortgage on his house with First National Bank for $10,000, payable in $100 monthly payments. Joe then sells his house to Jessica for $12,000, for $120 monthly payments. Jessica puts no money down. Jessica is making payments to Joe for $120 per month. Joe, in turn, pays the $100 per month to First National Bank, and keeps the extra $20 per month.
Most of these scenarios violate the “due on sale” provisions contained in most Texas residential mortgages.
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I have a child support lien. Is the exempt personal property protected from attachment?
Posted by David Leon in Family Law, Litigation and judgments on 28/06/2009
The Chapter 42 exempt personal property protections do not apply to child support liens, per Sec. 42.005.
CHILD SUPPORT LIENS. Sections 42.001, 42.002, and 42.0021 of this code do not apply to a child support lien established under Subchapter G, Chapter 157, Family Code.
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I have a judgment against me. Can I use non-exempt property to pay off debts secured by exempt property?
Posted by David Leon in Litigation and judgments, Real Estate Law on 28/06/2009
Section 42.004 of the Texas Property Code attempts to prevent this practice (which is also commonly referred to as a fraudulent transfer to avoid creditors.) The statute provides:
If a person uses the property not exempt under this chapter to acquire, obtain an interest in, make improvement to, or pay an indebtedness on personal property which would be exempt under this chapter with the intent to defraud, delay, or hinder an interested person from obtaining that to which the interested person is or may be entitled, the property, interest, or improvement acquired is not exempt from seizure for the satisfaction of liabilities. If the property, interest, or improvement is acquired by discharging an encumbrance held by a third person, a person defrauded, delayed, or hindered is subrogated to the rights of the third person.
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What is a “liz pendens”?
Posted by David Leon in Litigation and judgments, Real Estate Law on 06/03/2009
A liz pendens is a filing which informs the public of a dispute regarding a parcel of real property. For example, if someone is claiming an ownership interest in land, but is afraid that the person in possession of the land will sell the land prior to a suit being filed, then the person can file a liz pendens, informing a would be purchaser that the property is in dispute. There are heavy penalties if someone wrongfully files a liz pendens.
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I have a judgment lien. Does that attach to a homestead?
Posted by David Leon in Real Estate Law on 15/02/2009
Most judgment liens in Texas are not applicable to homestead property, per Sec. 41.001 of the Texas Property Code. There are exceptions to this rule under subsection (b) for items such as purchase money liens, taxes, mechanics and materialman’s liens, homeowner’s association liens, etc.
If you have a lien against the person and s/he sells the homestead, the proceeds from such sale are not subject to seizure for up to six months, per subsection (c) of the statute.
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I had two liens on my house (first and second). The first lienholder foreclosed. Can the second lienholder do anything?
Posted by David Leon in Real Estate Law on 15/01/2009
This is a common question. The answer is that a second lien holder’s security interest in your home is lost if the first lien holder forecloses. However, the debt is not wiped out, the obligation to pay still survives. If the second lien was a non-recourse note, then the second lien holder may not go after the borrower. (In Texas, home equity loans are non-recourse, so the lender may only look to the property for relief.)
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