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default judgement after bk filing?


rella5
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DH had vehicle repairs done in spring of 2004. We made pmnts on the acct. until the walls caved in and we filed CH13 in Aug 2004. We included the balance of $2,300 in the bk because they were demanding full pmnt and not willing to accept any more pmnts. According to bk papers they did not file a claim.

Fast fwd to June 2007. Things improved a lot and we decided to voluntarily dismiss the bk (long story, reason not relevant in this thread). So, today I pull DH's credit report and there is a judgement, filed by the repair co., in a city 100 miles away from us where their home office is . We had repairs done here.

The thing is, the bk was filed Aug 6 2004, the warrant in debt was filed in Sept 22 04 and the default judgement was granted 10/12/04 in a court 100 miles away and I swear if we had been served I would have turned it over to our atty.

-do you think they violated by getting that judgement after bk filing?

-should we let sleeping dogs lie and let them make the next move?

-My ultimate goal would be to get the judgement vacated and work out a settlement; does the dismissal just make their judgement valid?

thanks in advance for opinions.

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You have no settlement to work out. They were in violation of the automatic stay the second they handed the complaint in to the clerk of the court.

Since you are out of BK now, not only will the judgment have to be vacated (your attorney should handle) but you are entitled to damages. The judgment is, by now or soon will be, on your credit reports as a post bk judgment (VERY bad) and will have to be cleaned up...and public records are notoriously difficult to get fixed witht he CRAs. This will cost you time and money to fix, so they certainly shouldn't be allowed to get a pass on their foolishness.

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My bk atty is out of the country on vacation, his assoc. gave me a brief answer:

"you can get the jdg. vacated, you have to reopen the case. depending on what your strategy is for the debt. with having the jdgmnt they are just quicker out of the gate to levy etc. If you can settle it make it a priority and take care of it. If they don't play ball then you could reopen the case"

the bk was dismissed voluntarily in June 2007 but they still violated the stay in 2004.Of course I want the judgement off . they never filed a claim with the trustee so if we had gone thru the whole plan they would have gotten nothing. So... should I contact them and inform them that they violated and try to work out some kind of deal? Will the threat of reopening and vacating be enough to make them deal with me ? I appreciate any advice on this.

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oh, and BTW Methuss, the jdgmnt is already on the credit report, thats how I found it. Unfortunately I did not check the CRs during the bk so I did not find it until now. I can't imagine how they can prove service either since any kind of communication like that I would have delivered to my atty.

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File a motion to vacate the judgment. As Methuss said, their lawsuit was an illegal action at the time because they violated the automatic stay and that is the reason you use when you move to vacate that judgment.

I wouldn't settle with these people, I'd get rid of their judgment. Even though you dismissed voluntarily, the judgment was invalid from day 1 !

I expect that the SOL on this debt has expired too so if they tried suing again, you could deflect it using the SOL.

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does what the atty said sound correct? that we will have to reopen the case to file the MTV? If so how messy is that?... not that I am scared off by that, mind you, I'd like to go after them (they did a crappy repair job anyway) and BTW they also filed an Interrogatory a month AFTER they got the default judgement! The court case website shows the result of that as "other", and I certainly never rec'd any notice of that. And I suppose you all will advise me to have the atty do this, he's out of the country for 3 more weeks.

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