Mark, I had secretly hoped you’d weigh in.  Thanks for the input.

Jason Laughlin
AT#0004514
Laughlin Law Firm, PLC
(West Towers)
1200 Valley West Drive
Suite 506
West Des Moines, Iowa 50266
(O) (515) 608-4797
(F) (515) 608-4795
Jason@LaughlinLawFirm.com
www.LaughlinLawFirm.com 
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On May 18, 2016, at 3:03 PM, realestate@iabar.org wrote:

I sometimes simplify too much.
But, here goes.
Wife never gave up possession or homestead, or title.
Judgment against H only, not W.
Her homestead rights prevented a judgment against only H from ever attaching as a judgment lien, against any portion of the property. 
Since there was no lien which ever attached, there is nothing to “remove”.  The property has never been burdened with a judgment lien.  And thus no lien needs to be removed.  

Do a Baratta Affidavit, which establishes that there is no lien for H’s judgment. 
She has title.
She has clear title.  (subject to the existing mortgage)
And any new lender would have clear road to senior lien position, in making a loan to her to refinance the existing mortgage.

Mark Hanson
Baratta was my case.

       Mark V. Hanson – Attorney 


2420 128th Street, Urbandale, Iowa 50323

t: 515.868.0450   m: 515.537.9128  f: 515.276.6569

         HansonLawPC.com





From: Jason Laughlin <realestate@iabar.org>
Reply-To: "realestate@iabar.org" <realestate@iabar.org>
Date: Wednesday, May 18, 2016 at 2:19 PM
To: "realestate@iabar.org" <realestate@iabar.org>
Subject: [ISBA RealEstate] Another Judgment Lien Attachment Inquiry

Facts as follows:
1. H&W vesting in title to property in 1999 as joint tenants.
2. August 2006 - Decree of Dissolution of Marriage - provides in part, “the parties marital home shall be sold.  The parties shall cooperate with the listing and sale of the home.  The Petitioner (wife) shall be awarded sole possession of the home while the house is being sold.”  No further provisions address quieting title in either of the parties (other than the “possession” language), or address filing of a QCD or COT.
3. Husband and wife continue to co-habitate in marital residence for 2 years after decree.  Home is not sold.
4. Husband leaves residence in late 2008.
5. 2009 forward:  several judgments attributed to husband appear (some substantial).
6. 2015:  Ex-husband deeds his interest to ex-wife via QCD.
7. Present day:  Ex-wife attempting to refinance with little luck owing to judgments.

Law:

1. I.C.A. Section 598.21 provides in pertinent part:
General principles. Upon every judgment of annulment, dissolution, or separate maintenance, the court shall divide the property of the parties and transfer the title of the property accordingly, including ordering the parties to execute a quitclaim deed or ordering a change of title for tax purposes and delivery of the deed or change of title to the county recorder of the county in which each parcel of real estate is located.

2.The homestead of every person is exempt from judicial sale where there is no special declaration of statute to the contrary. Persons who reside together as a single household unit are entitled to claim in the aggregate only one homestead to be exempt from judicial sale. A single person may claim only one homestead to be exempt from judicial sale. For purposes of this section, “household unit” means all persons of whatever ages, whether or not related, who habitually reside together in the same household as a group.

Iowa Code Ann. § 561.16 (West)

3.1. Judgments in the appellate or district courts of this state, or in the circuit or district court of the United States within the state, are liens upon the real estate owned by the defendant at the time of such rendition, and also upon all the defendant may subsequently acquire, for the period of ten years from the date of the judgment.
2. a. Judgment liens described in subsection 1 do not attach to real estate of the defendant, occupied as a homestead pursuant to chapter 561, except as provided in section 561.21 or if the real estate claimed as a homestead exceeds the limitations prescribed in sections 561.1 through 561.3.


Iowa Code Ann. § 624.23 (West)

4.1. The homestead must embrace the house used as a home by the owner, and, if the owner has two or more houses thus used, the owner may select which the owner will retain. It may contain one or more contiguous lots or tracts of land, with the building and other appurtenances thereon, habitually and in good faith used as part of the same homestead.
2. As used in this chapter, “owner” includes but is not limited to the person, or the surviving spouse of the person, occupying the homestead as a beneficiary of a trust that includes the property in the trust estate.


Iowa Code Ann. § 561.1 (West)

5.In several prior cases we have noted that judgment liens generally cannot attach to property used and occupied as a homestead. SeeCox v. Waudby, 433 N.W.2d 716, 718 (Iowa 1988); Brown, 343 N.W.2d at 449–50; Lamb, 14 Iowa at 570. Based on these cases it is clear that the homestead exemption does not only prevent execution against homestead property, as Sandra argues, but the attachment of judgment liens to homestead property. There are exceptions to the general rule of exemption, as delineated in section 561.21, and one of the exceptions applies to Frank. However, the prior existing debt exception found in section 561.21(1) does not apply to Rose's interest in the homestead property. She is not a judgment debtor for the outstanding child support. Thus, we are left to determine whether Frank's liability for the child support debt renders the entire property subject to attachment and, ultimately, execution.

Baratta v. Polk Cty. Health Servs., 588 N.W.2d 107, 112 (Iowa 1999)

6.We find our holding in Merchants Mutual Bonding Co. v. Underberg, 291 N.W.2d 19 (Iowa 1980), helpful in resolving the issue before us. In that case we noted that “[t]here can be no splitting of homestead rights.” Merchants Mutual, 291 N.W.2d at 21. We concluded that “[a] creditor who seeks to satisfy his debt out of a homestead must be certain he has a right against the whole property, not just part of it.” Id.; see also Decorah State Bank v. Zidlicky, 426 N.W.2d 388, 391 (Iowa 1988) (“If the interests of one [spouse] are not subject to execution, neither are the interests of the other.” ).

Baratta v. Polk Cty. Health Servs., 588 N.W.2d 107, 112 (Iowa 1999)

7.Judgment liens described in subsection 1 do not remain a lien upon real estate of the defendant, platted as a homestead pursuant to section 561.4, unless execution is levied within thirty days of the time the defendant or the defendant's agent has served written demand on the owner of the judgment. The demand shall state that the lien and all benefits derived from the lien as to the real estate platted as a homestead shall be forfeited unless the owner of the judgment levies execution against that real estate within thirty days from the date of service of the demand.
Iowa Code § 624.23(2) (1995).

Conclusion (inquiry):
(Among a multitude of other potential arguments)  After leaving the property in 2008, the ex-husband would no longer be able to claim the property as homestead (he had another primary homestead residence).  However, he did maintain an ownership interest in the marital property (although there is likely a debate as to whether the decree extinguished the joint tenancy in favor of TIC).  It further does not appear that the decree divested the ex-husband of his interest in the property at the time of its issuance.  Presumably, the creditor could then rely upon attachment of the judgment to his non-homestead interest.  However, it also appears that the judgment would not attach to the “whole” homestead property as the judgment was not garnered against the ex-wife.  Case law seems to indicate that either one of the parties, so long as the homestead definition is met, may use 624.23 as a shield to prevent attachment and levy.  It stands to reason that the ex-wife would be able to divest the lien through platting of the property as her homestead and serving a 30-day notice under 624.23.

I haven’t applied 624.23 under these circumstances before, and thought I might inquire as to what the “body” thought of utilizing this mechanism for one homestead participant where the other owner clearly doesn’t share the distinction.  Would maintenance of a quiet title action be more appropriate?  Limited funds are at issue. here.  Thanks in advance for your thoughts.

Jason Laughlin
AT#0004514
Laughlin Law Firm, PLC
(West Towers)
1200 Valley West Drive
Suite 506
West Des Moines, Iowa 50266
(O) (515) 608-4797
(F) (515) 608-4795

CONFIDENTIALITY NOTICE:  The information contained in this email message is attorney privileged and confidential information intended for the use of the individual or entity named above.  If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited.  If you have received this communication in error, please notify us by telephone, and return the original to us at the above address via U.S. Postal Service and delete this message along with any attachments from your computer.
 
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