LIENS THAT SURVIVE BANKRUPTCY and clients, and/or (iv) a failure of debtors to disclose (and their lawyers to identify) liens against real estate. The purpose of this article is to highlight the long-term, sometimes devastating, impact of lien survival on individual debtors — and to urge bankruptcy lawyers who represent individuals to consider if there are ways to improve their clients’ understanding and expectations. The idea that liens exist independently from the underlying debts (and can sur-vive the debts) is very a diffi cult concept for even the most sophisticated clients to grasp. Individual debtors facing bankruptcy are probably not going to study or understand complex disclaimers and warnings, no matter how well-crafted. Thus, I think it is fair to say that, in an ideal world , best practice would be to both (i) present clients with detailed written disclaimers and (ii) have specifi c and direct conversations with clients about the potential future impacts of lien survival. The former would protect the lawyer; the latter would help clients achieve understanding (and manage expectations). Even in situations where lien stripping or avoidance is not an option, better knowledge and understanding could help clients plan better and may prevent them from entering into sales contracts that they cannot perform because of the extent of liens against the property. The issue of whether bankruptcy lawyers must or should run title searches is tricky. Debtors may not be able to accurately disclose liens, especially given the fi nancial stress driv-ing them to fi le. In an ideal world , obtaining current lien searches on all owned real estate would be best practice; many debtors, howev-er, may not be willing or able to pay for those searches. One possibility could be to try to reduce the cost of lien searches as much as possible. Some bankruptcy lawyers report that they send clients to the record room to search for judgments themselves. Other (more reliable?) options may be to order a “current owner search” (about $150 in the Richmond area), or a mere “judgment lien search” (about $75). High-volume bankruptcy offi ces may be able to negotiate discounts, perhaps by contracting directly with an independent title examiner certifi ed by the Virginia Land Title www.vsb.org Association. Search orders should specify and limit what copies are to be pulled (e.g., the source deed and any deeds of trust, for accurate scheduling, and docketed judgment liens). Several practitioners identifi ed what may be the most vexing problem concerning lien survival. If a judgment lien is known, the lawyer has a duty to analyze lien stripping or avoidance options. If any options are viable, the lawyer then has a duty to bring a motion or adversary proceeding seeking a remedy. The real cost to the debtor in the latter case is not the $150 title search but a substantial increase in legal fees because of the time and process involved in what in essence is an additional proceeding within the bankruptcy proceeding. In preparation for writing this article, I spoke with bankruptcy practitioners about lien survival to account for their perspectives. One reported that his offi ce requires that clients complete detailed paperwork that, among other things, discloses known liens. If the client discloses judgment liens, the offi ce pulls records or has the client pull records. However, the offi ce does not routinely order title searches. The offi ce also provides clients a very detailed information packet disclosing that liens survive bankruptcy and offering, for a fee, to order title searches. 5 Several other bankruptcy practitioners confi rm that the foregoing practice is typical. The idea that liens exist independently from the under-lying debts (and can survive the debts) is very a diffi cult concept for even the most sophisticated clients to grasp. The easiest path for bankruptcy lawyers, it seems, may be to disclose but not really explain; and look for liens, but not look too diligently. This path may be prudent from a business standpoint, but it sometimes exacts a very heavy price from clients. I hope this article highlights a frequent, yet not often thought about problem and Liens continued on page 28 REAL PROPERTY | Vol. 68 | October 2019 | VIRGINIA LAWYER 23