Asked in Credit and Debit CardsLiensCivil Cases
Can credit card companies file liens on your home or sue for the delinquent amount plus fees and penalties even though a card is an unsecured debt?
February 19, 2018 9:51PM
Yes. The creditor can sue in court and if successful can obtain a judgment lien that can be recorded in the land records. The property cannot be sold or refinanced until the lien is paid.
March 13, 2017 1:10PM
Yes. Most credit cards and other revolving accounts are unsecured. A consumer can be sued within the statute of limitations (as established by state law) and in accordance with the card holder agreement. If a judgment is granted, the creditor may place a lien against any real property, garnish wages and take any other action allowed by law.
Any consumer faced with such a threat/possibility needs to research their state's laws. Find out what the statute of limitations is in their state and whether or not their debt can be acted upon in the manner you have described.
Many Credit Card companies, sell account to third parties. Those are the people that initiate any legal action. Sometimes it is an agency that works with a law firm, sometimes it is group of collection attorneys. Every state has a set of exemptions (property exempt from creditors action) they can be used in bankruptcy or lawsuits. You can find out what those exemptions are and how they apply in your situation by doing a simple web search ("Name of State" bankruptcy exemptions)
Liens against an estate:
First, states limit the recourse (how much a creditor can collect) a creditor has to the value of the Decedent's estate. This means that creditor's cannot make the decedent's heirs and beneficiaries liable for the Decedent's debt. (Although debt collectors frequently misstate or avoid disclosing this information, hoping that a decedent's spouse or relative will pay the bill.)
Second, depending on your state, a surviving spouse may be liable for the decedent's debt beyond the value of the estate, in others state laws limit the surviving spouse's liability.
Third, depending on your state, some property, for example joint tenancy property, may pass free of creditor's claims (except for secured claims.)
Fourth, most states have a system to apportion the decedent's debts between various creditors, and apply priority- who gets paid first.
Fifth, most states, whether an estate is administered in probate or by a trust, have a "creditor's claim" procedure. This controls how a creditor may seek to enforce the debt against a decedent's estate, and reduces the statute of limitations.
Sixth, In California, for most unsecured non-government (think MediCal, Federal and State taxes) creditors, there is a universal one year statute of limitations for claims against a decedent which runs from the decedent's death. If a creditor does not file suit in this time (or file a creditor's claim against the decedent's estate or trust) they are barred from recovering the death.
Finally, proper application of state law to cut off a decedent's creditors normally requires the assistance of an attorney and filing of the appropriate pleadings in probate court.