[CLBS] Non-Dischargeable Claim

[Robin Long]

Listmates:

I have  debtor in his second chapter 13, the first one was dismissed. In 1986 a creditor got a judgment on a promissory note. The note had a provision that if debtor filed bk the debt was non-dischargeable. In a 1987 chapter 7, there was an adversary wherein the judge ruled it was non-dischargeable. In the subsequent chapter 13 the confirmation order also states it is non-dischargeable. In that case creditor filed a general unsecured claim.

Now, creditors attorney is asserting that the claim is secured to debtors non-exempt personal/business property. My thought is that under I.C. 10-1110 a recorded judgment creates a lien on real property (debtor has none). However, as to personal property there is no security interest. The judgment creditor can execute on the assets with a writ, but no security interest without a UCC filing. Therefore, in the bk context the creditor has a general unsecured claim.

The second question I have is under 10-1111 a creditor can renew a judgment 5 years after the original judgment. Can the creditor renew every five years, indefinitely? The case law primarily deals with foreign judgments, and in the cases I have read, the judgments weren't past the 10 year period. I haven't found any cases directly on point.

Any help would be appreciated.

Robin Long
Attorney
Foley Freeman PLLC
953 S. Industry Way
Meridian, ID 83642
P.O. Box 10
(208) 888-9111
(208) 888-5130