Copyright (c) 2014 Mark Shapiro
Particularly with states having community property laws, property ownership may be complicated. I'm not a lawyer, I am a judgment broker. This article is just my opinion, and not legal advice, based on my experiences in California. If you ever want a strategy to use or legal advice, you should contact an attorney.
If your debtor won a judgment of their own; you may decide to have the sheriff garnish that judgment through a clerk at the court, rather than serving anything on your judgment debtor; to find out if someone files some third-party claim. It is only at this point when you'll fully know the basis claimed, and any legal authority for that third-party's separate real property interest(s).
When it comes to the debtor's property ownership, with your lien; the new owner cannot claim a homestead exemption or any other exemptions. When you start your foreclosure, the new owner(s) will figure out what they need to do. HERE HERE What the debtor did to "remove their name off title" is a recordation not in the title chain, so your lien remains on record. There is no way that anyone attempting to buy a property could fail to have constructive notice of the recordation of your abstract of judgment, which created a judgment creditor lien against the interests of the debtor, whether they give the property to someone else, burns the deed, or records another deed not having their own name.
A husband cannot just remove a name on the title, to remove a co-owner just by requesting a title company remove a wife from title, without the wife first signing a quitclaim or grant deed. Quit claim deeds must be notarized, to prevent the often attempted and highly coveted forgery of a debtor spouse's signature to get such a result. If the wife is named as a defendant on the lawsuit, without having some order from a judge; no title company would be willing to perform this kind of unlawful action.
A husband may not remove his wife from the title without getting her consent in writing; if the title was vested in both their names at the time of property purchase. If he vested title in her by his deliberate action (for example) signing a grant deed in the past; he can't later prevail in a quiet title action against her, when it was his action which vested her rights.
The new husband has no rights to remove his debtor wife from title just because he desires to do so, and which means your lien also stays. If he wants to refinance, he needs to live with the unintended consequence of placing his new spouse (the judgment debtor) on the title in the first place. His spouse has a viable interest in the real property and cannot be removed with a quiet title action.
Creditors sometimes wait to finalize their fraudulent transfer claim against the transferee (by way of entry of the judgment). The question is, what you get by waiting? You can always sue the other spouse, (although they may not be on the title). If you get a new judgment against one spouse for fraudulent transfer; you might be able to arrange for the sheriff garnish bank accounts in both their names.
Even if this isn't possible, a creditor can subpoena the lender to see where the proceeds of the loan was deposited; and then levy on it, as long as it's in the husband's name. By extension, the judgment creditor can also levy on the account in the wife's name because the proceeds are not going to be a separate and sole property in a community property state; because they both encumbered a community debt to get the money. When the husband is transferring his property to his wife; it is unlikely they can both make the case that, in addition to the transfer, the wife is able to then claim the funds from the loan as being her separate and sole real property.
You can't get to see the debtor's lender's documents just yet; if the loan was to both spouses and you only have your judgment against only one of them. One could attempt this, but your fraudulent transfer judgment may finalize before the court court grant you access to the information.
When you jump the gun, you will give the judgment debtors advance notice that you are looking for their funds, and the debtors may transfer their funds out of the state. If you just stay still, and just wait for your judgment on the wife; then you can subpoena their lender because the loan is against the property of which she was the fraudulent transferee, to see where the money went, and then levy on whatever bank account the money is in; regardless of how it is held.
Even with the the proper notices to consumer, they cannot keep you from seeing their information. You may not need to levy on the debtor(s) house to auction it off. Levying a property is a dicey and somewhat risky proposition these days. Who will be paying 90 percent of the fair market value for any real property?
When the creditor is sure that their judgment debtor got a loan, they can do a judgment debtor examination with document requests on the debtor husband and also the wife if she is holding more than two hundred and fifty belonging to her spouse. Then, ask the spouse where the funds from the loan were distributed. Ask for account numbers, etc. Then, get a restraining order that keeps them from transferring the funds out of their accounts.
Article Source: http://www.abcarticledirectory.com
Mark Shapiro - Judgment Broker - www.JudgmentBuy.com - where Judgments go and are quickly Collected!
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