Vacating Judgment after BK

[IBroke]

So folks,

I just wanted to let you know that I just returned from my local courthouse where I filed a "Defendant's Motion To Vacate Judgment."

I thought I might start a thread about this issue because I can imagine that several members might want to do the same in order to "rebuild" their credit. It's often recommended to vacate judgments after your BK-discharge BUT to my surprise, the information found online about how you actually DO it is - well - everything but specific. That's why I opened this thread.

I didn't want to spend several hundred $$ and have an attorney do the job and I'm glad I did it on my own. I was able to find some kind of sample form about a foreclosure but I was able to modify it. In Florida, there is NO standard form to file such a motion so I had to create it on my own. After I did so, I made some phone-calls and went to the court. A few questions later, I arrived at the correct counter where a lady was so kind to record my motion. To my surprise, it was absolutely FREE!

I was told that was due to its status. Otherwise, it would have cost $50.

Unfortunately, I forgot to ask what's next. I assume it will be forwarded to a judge and I'll be notified once a decision has been made. I'll keep you updated.

BTW, if anybody needs help writing such a Motion for Florida, let me know. As soon as I get news that it was accepted, I'll provide you with a sample that is "modified" for vacating judgements after BK-discharge. Right now, I'm still testing..

[rpraver]

You didn't "record" it, you filed it with the Court.

The Court will not act on it on its own and "accept" it or not. You will have to contact the judge's office and schedule time for a hearing. You will also have to serve a copy of the Motion and a Notice of Hearing on the Plaintiff to give them an opportunity to be heard. You will also have to file a certified copy of your Bankruptcy discharge in the Court file.

I have filed these motions many times. Most judges are not familiar with the procedure and it will be up to you to educate them. Read the applicable statute carefully and follow it step by step. Also remember, your discharge has to be entered at least 12 months before you can get the judgment vacated, or satisfied of record.

Good luck.

[IBroke]

You didn't "record" it, you filed it with the Court.

The Court will not act on it on its own and "accept" it or not. You will have to contact the judge's office and schedule time for a hearing. You will also have to serve a copy of the Motion and a Notice of Hearing on the Plaintiff to give them an opportunity to be heard. You will also have to file a certified copy of your Bankruptcy discharge in the Court file.

I have filed these motions many times. Most judges are not familiar with the procedure and it will be up to you to educate them. Read the applicable statute carefully and follow it step by step. Also remember, your discharge has to be entered at least 12 months before you can get the judgment vacated, or satisfied of record.

Good luck.

So I have to wait an entire year after my discharge to have the judgment vacated? That's interesting - I included this clause in my motion and it doesn't mention this timeframe:

"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."

And yes, I mailed out a copy to the opposing party and the opposing attorney.

[AngelinaCatHub]

Hey Ibroke and rpraver, you both need to read this and PM this person to aid him also. http://www.bkforum.com/showthread.ph...ease-judgement!

'Hub

[MSbklawyer]

You may be successful if the opposing attorney doesn't respond. But bankruptcy -- even a discharge in bankruptcy -- is not grounds for vacating a judgment.

What you are attempting to do, I think, is avoid the lien of judgment. This is done by filing a motion with the bankruptcy court, not the court where the judgment was obtained. It is provided for by the bankruptcy code at § 522(f).

Vacating a judgment and avoiding a lien of judgment are two entirely different, unrelated concepts. Being bankrupt doesn't entitle you to vacate the judgment.

You may get lucky and the opposing attorney not respond, and if so, the judge may grant your motion.

[df04527]

Gosh now I'm confused. I thought I understood that a judgement, included in a BK, could be "vacated" (that was the term that was used) by filing in the BK court where the BK occurred.

I'm not sure what it takes to get the judgement removed from a credit report but i believe something signed by a judge would do it whether it's a vacate or an avoid.... just some paper to trigger it removed from the credit report.

Any clarification is appreciated.

[Freddy03]

Oh I'm confused too...

I thought I could just file a motion to vacate the judgement and that would be the end of it.

I'm in FL also so I will be looking out for your outcome thread.

[PHXDWTN]

I am in the same situation though I am in Arizona. I found the paperwork that needs to be filed online...Arizona (Maricopa County) has official paperwork that needs to be filed. It's just one piece of paper that asks for Name of Filing Party, Case No., Plaintiff, Defendant and "I would like the court to:"

What I wrote is...

I would like the court to:
Vacate the judgment due to the fact that the underlying debt that created the judgment was discharged under Chapter 7 bankruptcy on 01/08/10
Case No. 2:09-bk-21xxx-xxx.

One area of confusion is the Plaintiff and Defendant. In the original judgment, I was the Defendant...so do I enter that on this form, or since I am the one filing I am now the Plaintiff?

BTW, an attorney wanted $1500 to file this paper for me.

[MSbklawyer]

The confusion comes from people using the terms "vacate" and "avoid" interchangeably. They mean different things. It also comes from people using "judgment" and "lien" interchangeably. They also mean different things. I'll try to write an outline explaining it, but it'll take a while.

[PHXDWTN]

MSkblawyer: My situation is that I am trying to do a short sale on my house and the title company informed me that there is a judgment in the amount of $10,500 on my name that has to be cleared before I can sell the house.

I did a search on the County Recorder's website and it shows as "JUDGMENT" whereas I've seen it say "LIEN" under other people's names.

The judgment itself does not say anything about a lien or about the property. I called the creditor's attorney that originally got the judgment and they said that the judgment debt was eliminated in the BK discharge but in order for them to file the paperwork to release the judgment with the County Recorder, they would need a $10,500 "processing fee".

So it doesn't sound like they have a lien on the actual property but a judgement whose balance is actually $0 but they are not willing to file the paperwork to show that.

Can you please advise? Thank you.

[AngelinaCatHub]

The confusion comes from people using the terms "vacate" and "avoid" interchangeably. They mean different things. It also comes from people using "judgment" and "lien" interchangeably. They also mean different things. I'll try to write an outline explaining it, but it'll take a while.

Thanks MSBk You are OK in my book. Confused too, 'Hub.

[IBroke]

One area of confusion is the Plaintiff and Defendant. In the original judgment, I was the Defendant...so do I enter that on this form, or since I am the one filing I am now the Plaintiff?

BTW, an attorney wanted $1500 to file this paper for me.

You are still the Defendant.

[IBroke]

So in legal terms, what is a "discharged judgment" as described in the legal paragraph I mentioned before? Since it obviously isn't a judgment discharged through BK, what is it then?

And the term "vacate" a judgment after BK is even used by the "super-experienced" users - so I'm really confused.

[IBroke]

You may get lucky and the opposing attorney not respond, and if so, the judge may grant your motion.

That's what I'm hoping for.

So, do I have to request a hearing as well? I thought that the question if a hearing for a specific motion is necessary or not is made by the court/judge and not by me? If I'm wrong, what is the purpose of a motion?

[IBroke]

What you are attempting to do, I think, is avoid the lien of judgment.

Actually, this is NOT what I'm attempting. The judgment was never attached to any property or real estate - and the party that obtained the judgment against me never attempted to do so. So what lien should I avoid?

I'm simply trying to get the judgment off my credit-report - I'm not trying to defend my property against any lien.

Look at the last sentence of the legal phrase I posted:

"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."

Now, does a BK-discharged judgment still have "prospective application"?