Vacating a Judgment?

[defeatCA]

Does anybody know what I have to do to vacate a judgment that was discharged through CH7 BK?

I went to the court and filed a "Motion to vacate judgment" and send a copy of that filing to the other parties involved.

Is there anything else I need to do? I was discharged in January and somebody just told me I would have to request a hearing with the Judge and wait an entire year after my discharge before I could actually get the judgment vacated. HELP!

[usctrojanalum]

My mom tried to do this after she was discharged in chp7 and the Court denied her motion to vacate as moot because the debt had been discharged.

[momof5]

http://www.law.cornell.edu/uscode/ht...4----000-.html

(a) A discharge in a case under this title—
(1) voids any judgment at any time obtained, to the extent that such judgment is a determination of the personal liability of the debtor with respect to any debt discharged under section 727, 944, 1141, 1228, or 1328 of this title, whether or not discharge of such debt is waived

http://dictionary.reference.com/browse/voids

"to depart from; vacate"

I cited this in my filing. Judge vacated the judgment. The original lawyer had actually called me and told me that he spoke to the Trustee and that I couldn't do this. He was WRONG!

[workingpoor]

Originally Posted by momof5

The original lawyer had actually called me and told me that he spoke to the Trustee and that I couldn't do this. He was WRONG!

You mean he lied...

[defeatCA]

Originally Posted by momof5

http://www.law.cornell.edu/uscode/ht...4----000-.html

(a) A discharge in a case under this title—
(1) voids any judgment at any time obtained, to the extent that such judgment is a determination of the personal liability of the debtor with respect to any debt discharged under section 727, 944, 1141, 1228, or 1328 of this title, whether or not discharge of such debt is waived

http://dictionary.reference.com/browse/voids

"to depart from; vacate"

I cited this in my filing. Judge vacated the judgment. The original lawyer had actually called me and told me that he spoke to the Trustee and that I couldn't do this. He was WRONG!

Cool, thanks for the info!

I see you're from Florida as well, momof5.
Did you have to wait an entire year after your discharge before your judgment was vacated? I'm asking because somebody else on a different forum mentioned that there is such a law..

BTW, here is my motion. I hope the court won't reject it because I mentioned a different law:

IN THE CIRCUIT COURT
IN AND FOR XXX COUNTY, STATE OF FLORIDA




XXX.,

Plaintiff,

Case No.: XXXXX
vs.


(me),

Defendant(s).

____________________________________/


DEFENDANT’S MOTION TO VACATE JUDGMENT


Comes now the defendant, (me), hereby files his motion to vacate final judgment, pursuant to Rules 1.540(b) Fla. R. Civ. P., states:

Florida Rule of Civil Procedure 1.540(b) provides in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or a
party’s legal representative from a final judgment, decree, order, or proceeding
for the following reason:… (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application.

The defendant, (my name), filed for Chapter 7 Bankruptcy on the 24th day of September, 2010, Case No.: XXX, and received his Final Decree of discharge from the United States Bankruptcy Court, XXX, on the 6th day of January, 2011. The judgment was included in the defendant’s Bankruptcy Petition and was discharged.


WHEREFORE, Defendant requests this court grant Defendant’s motion for
vacating judgment.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was served via
regular U.S. Mail to: XXX on this 11th day of February, 2011.


I guess if the court rejects it, I'll try again on legal basis you just posted.

[defeatCA]

Oh, momof5, one additional question:

Did you file your motion with the court where your judgment was originally obtained against you? I'm asking because I did and you used BK-law in your motion....

[defeatCA]

UPDATE:

There is a hearing for my motion in 8 days. In idea what documents I should bring?

So far I have the:

- Motion I filed
- Notice of hearing I received from the other party
- A copy of the legal paragraphs (524 and the Florida Rule) I'm basing my motion on
- A copy of my BK-petition
- Notice of discharge I received by mail.

Did I miss anything?

[momof5]

No, I don't think you missed anything.

In answer to your earlier questions, I did file it in the court where the judgment was obtained. I did not have to wait a year. There was no hearing because I was currently living in another state and did it all by mail.

Unfortunately, this was MANY years ago and the computer where the actual motion I filed was saved is now long dead and gone.

Good luck. Stay calm. Stay factual. You'll be fine.

[defeatCA]

Originally Posted by momof5

No, I don't think you missed anything.

In answer to your earlier questions, I did file it in the court where the judgment was obtained. I did not have to wait a year. There was no hearing because I was currently living in another state and did it all by mail.

Unfortunately, this was MANY years ago and the computer where the actual motion I filed was saved is now long dead and gone.

Good luck. Stay calm. Stay factual. You'll be fine.

Thanks, Mom..(;

I'll try my best. I was thinking about another thing: Since the Plaintiff's attorney will be present over the phone as well, I was wondering if they could object to my motion in the first place. An objection could be considered a violation of the permanent BK injunction, right?

[momof5]

I don't really have much advice on that. They are there by phone. They say they object. "With all do respect, your honor, on what grounds?" They will have to answer why a voided judgment that is discharged should remain. What would it gain them?

If the judge says that it is discharged already and that it's existence is "moot", I would simply respond that neither the CRAs like EQ, EX, TU nor Fair Issac agree. If, as the law says, that the BK VOIDS the Judgment then it can no longer exist, correct?

It is all wrapped in the language (that is what lawyers are all about).

I would also be careful to gauge the Judge. The last thing you want is to p*ss him/her off.

[defeatCA]

Originally Posted by momof5

I don't really have much advice on that. They are there by phone. They say they object. "With all do respect, your honor, on what grounds?" They will have to answer why a voided judgment that is discharged should remain. What would it gain them?

If the judge says that it is discharged already and that it's existence is "moot", I would simply respond that neither the CRAs like EQ, EX, TU nor Fair Issac agree. If, as the law says, that the BK VOIDS the Judgment then it can no longer exist, correct?

It is all wrapped in the language (that is what lawyers are all about).

I would also be careful to gauge the Judge. The last thing you want is to p*ss him/her off.

Thanks for the advice!

[usctrojanalum]

Originally Posted by momof5

They will have to answer why a voided judgment that is discharged should remain. What would it gain them?

The first thing I would think of is that judgment liens are not discharged after a BK, unless a motion is made and granted to avoid them. The debtor would have to own property to make this a relevant argument.

[defeatCA]

Originally Posted by usctrojanalum

The first thing I would think of is that judgment liens are not discharged after a BK, unless a motion is made and granted to avoid them. The debtor would have to own property to make this a relevant argument.

Fortunately, there was never any judgment lien connected to this judgment. I owned a house in the past but that already went through foreclosure BEFORE the judgment was entered against me. The car I'm owning right now is 11 years old and has a value of about $1,000 - and I still owe $1,200 on it. In addition, in Florida, liens can't be placed on cars that have a value of $1,000 or less. My CH7 was a no asset case as well. So I guess I got my back covered.

But you are right: If judgment liens exist, it's a bit more complicated to have them vacated.

[defeatCA]

Well, just returned from my hearing. Unfortunately, it was ruled that

"55.145 Discharge of judgments in bankruptcy.

At any time after 1 year has elapsed since a bankrupt or debtor was discharged from his or her debts, pursuant to the act of congress relating to bankruptcy, the bankrupt or debtor, his or her receiver or trustee, or any interested party may petition the court in which the judgment was rendered against such bankrupt or debtor for an order to cancel and discharge such judgment. The petition shall be accompanied by a certified copy of the discharge of said bankrupt or by a certified copy of the order of confirmation of the arrangement filed by said debtor. The petition, accompanied by copies of the papers upon which it is made, shall be served upon the judgment creditor in the manner prescribed for service of process in a civil action. If it appears upon the hearing that the bankrupt or debtor has been discharged from the payment of that judgment or of the debt upon which it was recovered, the court shall enter an order canceling and discharging said judgment. The order of cancellation and discharge shall have the same effect as a satisfaction of judgment, and a certified copy thereof may be recorded in the same manner as a satisfaction of judgment. This section shall apply only to liens under judgments or obligations duly scheduled in the bankruptcy proceedings."

applies. So I have to wait for another 10 months to have the judgment vacated. seems it doesn't make a difference if there is a lien or not.

Hower, it was denied WITHOUT prejudice and the friendly judge told me I should simply come back in January. She even provided me with a copy of the legal language (55.145) which was very nice.

After all, getting it off my credit-report in 10 months is still better than 12/2014 - the date it is supposed to age off.

[fajim2004]

I will be filing a Chapter 7 within a month in Wisconson. In particular I am interested in getting a number of judgments vacated. A few folks on this board have been successful removing judgments by filing a motion to vacate.

Having qusetioned BK attorney about this he claimed that he could do for $200.00 per
judgment. Seems a steep price for something that I could probably do myself. Any ideas ? Or should I just shop around for a different attorney ?

Also, if a judgment is vacated will it disapper from the public records site ? Also is it possible to have other small claims entrys that were dismissed but still on public record to be removed ?

Thank You