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Duane Mehlhaf v. Caitlin Collier (In re Tamara E. Hofer)

Bankr. No.: 
96-40095
Adv. No.: 
97-4045
Chapter: 
7
Date of Decision: 
January 14, 1998
Issue: 
(1) Whether Debtor could have ex-husband's lien on her homestead sale proceeds removed under ยง 522(f)? (2) Whether Debtor's ex-husband's divorce related lien had priority over two mortgages that Debtor gave her lawyer on her homestead?
Ruling: 
(1) Debtor could not remove her ex-husband's lien on her homestead sale proceeds because Debtor did not have sole title to the property before his lien attached. See Farrey v. Sanderfoot, 111 S.Ct. 1825 (1991). (2) Debtor's ex-husband's lien had priority. It was created at the same time the Debtor acquired her interest in the property. aebtor had no power to mortgage the homestead property until title was vested in her. That occurred simultaneously with her ex-husband's lien. Debtor's attorney also had actual notice of the ex-husband's lien and could not rely on the clerk of court's failure to timely docket the ex-husband's judgment lien in the judgment book to claim her mortgages had priority.
Full Bankruptcy Court Decision: