Liens: What's the Big Deal About Them?
Lien, in its simplest definition, is the term used to denote any
charge or duty imposed against an item or property as security
for payment of a debt or some other obligation.
There are certain liens that can complicate your asset
protection planning. This is one of the ways that creditors can
have a take on your assets. In order to know how a certain lien
can affect your asset or property, it is crucial that you have a
thorough understanding of the different types of liens available
out there.
Liens can either be consensual, statutory or judicial liens.
Consensual liens are those types of liens that are substantiated
by a contract between the creditor and the debtor. These are the
liens in which you voluntarily consent to whenever you take out
a loan or any other advance of credit that you require.
A homebuyer will agree to a bank taking a security interest in a
home before a mortgage can be obtained. A consensual lien is
also created when a cart buyer opts for car financing available
at the car dealer. The car purchased secures the car buyer's
obligation to pay for the property.
Failing to do so may mean that the purchased property will be
taken away from him. Examples of consensual liens are mortgages,
car loans, and security interests in banks.
Statutory liens meanwhile are those that are ideally occurring
in lieu of established statutes or as stated by common law.
Non-consensual liens give the creditor the right to repayment
security of a debt by imposing a lien on a property or an item
once there is a determined relationship between the debtor and
the creditor.
Sometimes, creditors make use statutory liens to get at your
assets to satisfy a debt by the operation of state or federal
laws. Examples of this type of lien include tax liens and
mechanic's liens.
A tax lien is placed upon properties by local, state or federal
government as stated in established statutes as security for
delinquent taxes, including property and estate taxes.
A mechanic's lien will arise when a party fails to pay a
contractor or mechanic for services rendered or work performed
on a certain property or car. This usually occurs when a
contractor installs a furnace on a home or a mechanic does some
repairs on a car.
Failure of payment for the services rendered will give the
contractor or the mechanic a security interest on the property.
If the owner decides to sell the property, the contractor or
mechanic will have a share on the proceeds of the sale to pay
for the debt incurred.
Of the three type of liens, those imposed by a judicial ruling
is the most dangerous for the asset or property owner but is
also one in which an informed owner may be able to eliminate.
This type of lien is created when a judicial court grants a
creditor an interest on the debtor's property after a judicial
ruling. This lien can arise in several circumstances.
An example would be if a negligent driver injures someone in an
accident, it will follow that the injured party would likely sue
the driver for damages.
In some instances that the driver's insurance would not cover
for the damages, a judicial lien may be placed upon the
negligent driver's property as a claim for payment to the
injured person. The judgment on the lawsuit filed will provide
for the basis of the lien.
If the debt is not paid, the injured party or the judgment
creditor can seek the enforcement of the judgment. This can be
done by garnishing wages, seizing a bank account or placing a
lien on the negligent driver's property.
This lien is the first step in the process that will
consummately end in the sale of the property in order to pay for
the damages.
A judicial lien cannot be imposed on a ruling or judgment based
upon a pre-existing ruling as in the case of a judgment on a
mortgage foreclosure. This understanding will greatly help the
property owner in exempting his property from possible
acquisition by the creditor.