If you are selling your home and there is a judgement lien, does this have to be paid first?
Not in Texas according to Attorney T. Alan Ceshker.
Recently, we had a client who was refinancing his house and an old judgment popped up. The lender said he had to pay it; he came to us hoping we could delete it. We remembered the Texas law on this and reached out to Alan for help.
Ceshker is a practicing attorney with a title office that routinely runs into these situations. He has been successful in getting the lien partially released from the homestead in every instance – several hundred times in the last 20 years.
According to Ceshker:
A judgment recorded in the real property records is a lien on all real property of the defendant. But the Texas Constitution and the Texas Property Code specifically excludes this lien from attaching to a person’s homestead.
Despite this clear statement of law, a title office will still require a partial release of lien (i.e. releasing the homestead property to be sold or refinanced).
If the judgment creditor will not release the lien for the specific homestead property, there is existing caselaw that will allow damages to be recovered if the judgment creditor does not release the lien (Tarrant Bank vs. Miller 813 SW 2d 666 (Tex. App. – Eastland 1992, writ denied).
A conventional title office (non-attorney owned) will not be able to act on behalf of the judgment debtor to get this removed.
You can reach Ceshker via his website, The Law Offices of T. Alan Ceshker, PC, or by calling 512-961-7848.