Baratta was fought over the claim that because the 30 day notice to levy of 624.23 was not served, the judgment still attached as a lien.
The Supreme Court ruled
a. the law is clear that a judgment does not attach to homestead unless the judgment is for a debt that is an exception to this rule.
If the homestead is protected, then the judgment does not attach as a lien in the first place
If so, then there is no requirement to serve a 30 day notice to levy under 624.23, to remove something that did not exist in the first place.
b. A judgment against Husband for child support is against only husband, not against Wife #2.
The child support judgment was a pre-existing debt and not entitled to homestead protection as to the Husband. But Wife #2’s homestead was not subject to the judgment.
c. You cannot split husband and wife’s homestead rights.
d. Wife #2’s homestead rights protected the whole homestead from Wife #1’s judgment for child support
What is not always so clear is getting the record (abstract) to show the facts of homestead protection conforms to law, in a manner which the title examining attorney will accept.
The Baratta Affidavit well crafted may provide such record. But, you need to visit with the examining attorney to make sure you are crafting sufficient record acceptable to him/her.
If you have the luxury of time, serving the 30 day notice to levy, provides record that you don’t care if the judgment attached or did not attach as a lien, because you served the 30 day notice, and no levy was executed – thus whether or
not the judgment attached, it is not a lien on the real estate.
Mark Hanson
From: <realestate-owner@iabar.org> on behalf of Real Estate List Serve <realestate@iabar.org>
Reply-To: Real Estate List Serve <realestate@iabar.org>
Date: Wednesday, May 30, 2018 at 11:14 AM
To: Real Estate List Serve <realestate@iabar.org>
Subject: [ISBA RealEstate] Title Standard 6.7 Question
Hello,
Abstract shows 2 judgments against a homeowner within the past 10 years. Procedures of IA Code 624.23 were used to remove the apparent judgment lien of 1st judgment. The 624.23 notice
was not served on the 2nd judgment holder. 2nd judgment holder is a national debt collection agency.
Under T.S. 6.7, would you require the notice to be sent out to the 2nd judgment holder as well?
Or, since a showing of homestead has already been made, would you request that the homeowner verify by affidavit that the 2nd judgment was also of the type that does not attach to
homestead, and therefore the 2nd judgment never attached?
Thank you for your thoughts.
Very truly yours,
Jeremy J. Gray
Newman Thompson & Gray, P.C.
36131 Highway 69
P.O. Box 408
Forest City, IA 50436
Phone: (641) 585-5043
Fax: (641) 585-4444
Email: jeremy_newmanlaw@wctatel.net
Please note our new address on the North edge of Forest City.