Vacating Judgments in FL?

[Freddy03]

I've read the post about judgments in FL but I'm seriously confused.

Has any successfully vacated or removed a judgment (after BK) in FL?

My attorney said it couldn't be done but I think he just isn't familiar with the process.

Any advice?

Thanks!

[IBroke]

Judgments IIB in Florida can be vacated. Here's the correct thread to this topic:

http://www.bkforum.com/showthread.ph...ating+judgment

[Freddy03]

Thanks

Did you get yours removed?

[justbroke]

The problem is that no one really reads the entire statute. Everyone, including attorneys, assume you can't vacate a judgment, but the law they refer to is for "judgment liens".

F.S. 55.145 Discharge of judgments in bankruptcy... This section shall apply only to liens under judgments or obligations duly scheduled in the bankruptcy proceedings.

[IBroke]

Thanks

Did you get yours removed?

Not yet. I'm not seeking any credit at the moment and since the process under 55.145 is quite a hassle (time & money), I'll do it later this year. It certainly isn't on top of my list right now.

[IBroke]

The problem is that no one really reads the entire statute. Everyone, including attorneys, assume you can't vacate a judgment, but the law they refer to is for "judgment liens".

That's what I claimed when I was at court last year - without success.

I asked a lawyer online what the bold part actually means in plain English and what he said makes sense. "Translated", "This section shall apply only to liens under judgments or obligations duly scheduled in the bankruptcy proceedings" means that 55.145 only applies to secured debt (judgments with a lien) and unsecured debt (judgments without a lien) that was part of and discharged in your BK.

[Freddy03]

Not yet. I'm not seeking any credit at the moment and since the process under 55.145 is quite a hassle (time & money), I'll do it later this year. It certainly isn't on top of my list right now.

It's expensive? Does it remove it from public record?

[IBroke]

It's expensive? Does it remove it from public record?

Well, not really "expensive" but you need to pay for the copies of the discharge you have to obtain from the BK-court. I have to go there (Downtown Tampa) which is a one hour drive. Then you have to file the motion. Then you have to go to court. Another one hour drive for me. The judgment is officially cancelled once the motion is granted. Then, you can have a copy of the cancellation recorded - but that's optional. Afterthat, you send a copy of that ruling to the bureaus and demand deletion because the judgment is cancelled (which is the same as "vacated").

[justbroke]

That's what I claimed when I was at court last year - without success.

I asked a lawyer online what the bold part actually means in plain English and what he said makes sense. "Translated", "This section shall apply only to liens under judgments or obligations duly scheduled in the bankruptcy proceedings" means that 55.145 only applies to secured debt (judgments with a lien) and unsecured debt (judgments without a lien) that was part of and discharged in your BK.

Then what other types of judgments are there. LOL. This is just so funny with the "interpretation" of the clause. The actual purpose of this amended statute is to remove a "lien" from the public record (the County Clerk's Public Records).

If your judgment was filed in the public record, prior to filing, then it would be subject to this paragraph in the Florida Statutes. I'm talking about un-filed (un-recorded) judgements.

So if you go to your County's Clerk of the Court and search "public records", and it is there... then it falls under the exception. However, if it was never recorded, then you can have it cancelled immediately.

I hope that makes sense, and is why the judgment becomes a "lien". Otherwise, you'd never need to record a "satisfaction" of the debt, if it were never recorded.

[IBroke]

So if you go to your County's Clerk of the Court and search "public records", and it is there... then it falls under the exception. However, if it was never recorded, then you can have it cancelled immediately.

I hope that makes sense, and is why the judgment becomes a "lien". Otherwise, you'd never need to record a "satisfaction" of the debt, if it were never recorded.

Cool, justbroke, it seems I finally came across somebody who actually understands this law. I obviously didn't. On myfico.com, there is somebody who calls himself a "legal expert" who made the claim that judgments IIB in Florida can't be vacated at all and that after 55.145, they would have the legal status of being "satisfied" and therefore, being reported as such. I tried to explain to him that the motion was about a CANCELLATION and if granted, the judgment would just be exactly that: Cancelled (or in other words, vacated). I told him that only the optional RECORDING would be made in the same way/procedure as IF it would be with a satisfied judgment - but that wouldn't change its CANCELLED status.

So "liens under judgments", under 55.145, simply means "recorded judgments"?

If so, I learned something new and very important today. I always thought (and obviously, the attorney as well) that "liens under judgments" has the meaning that it applies to judgments that resulted in a lien on property (home, auto). I thought the "other type of judgment" would have been the one that didn't result in a lien on real property. That's really funny...

My judgment does indeed show up under my public records so I guess that was another reason why I had to wait. Of course, I always thought that EVERY judgment would be recorded sooner or later so that explains my prior confusion.

And surely, if a judgment isn't recorded, you can't file a cancellation. You can't unlock a door that doesn't exist.

Thanks, justbroke, for clearing that up. Although this is the 3rd or 4th "version" I'm hearing about 55.145, I have to say that this one really makes sense.

BTW, do you actually know the purpose of the one year wait under 55.145? I do believe the reason could be the fact that a discharge isn't 100% "waterproof" for the first 12 months - so it might have something to do with that..

[justbroke]

A judgment is not a lien upon property unless and until recorded. I guess you could say that it "could" be a lien, but until it is recorded in the public record, it is not a "lien upon judgment".

In Florida, for a judgment to become a lien, it must be recorded in the public record. That simple.

F.S. 55.10 Judgments, orders, and decrees; lien of all, generally; extension of liens; transfer of liens to other security.—

(1) A judgment, order, or decree becomes a lien on real property in any county when a certified copy of it is recorded in the official records or judgment lien record of the county, whichever is maintained at the time of recordation, provided that the judgment, order, or decree contains the address of the person who has a lien as a result of such judgment, order, or decree or a separate affidavit is recorded simultaneously with the judgment, order, or decree stating the address of the person who has a lien as a result of such judgment, order, or decree...

At least, that has been what I believed to be the state of judgment liens in Florida.

You are right that every judgement is "usually" recorded rather quickly. Otherwise, why get a judgment if you're not going to attach it to anything? Since your judgment was actually recorded before you filed, then you fall under this exception.

[IBroke]

Ah, great info. And I was under the impression that once a creditor (or anybody else) obtained a judgment against, he/she would still have to go ahead and file something in addition to attach it to someone's property. I didn't know that the recording of a judgment was this "additional step". I always thought the recording was just "for the records" and I thought that all legal consequences of a judgment went into effect when it was obtained - not when it was recorded.

I guess I still lack some basic info due to the fact that I grew up in a different county..

[justbroke]

A judgment is nothing more than a claim reduced to some value (money). This is actually in the "court" records. However, to be effectual as a lien upon property, at least in Florida, it must be recorded in the "official" records. The strange this is, that the Clerk of the Court maintains the official records as well.

I don't know why a judgment creditor would not immediately turn around and record the judgment in the "official" records.

As for the year wait... it may be that a judgment lien actually survives the bankruptcy. Remember Rule #1 about liens in bankruptcy? All liens survive bankruptcy. The exception would be a lien that was voided under 522(f) where it impacted an exemption. However, you would have filed a Motion to Value or a Motion to Avoid Lien in the bankruptcy. In that case, you'd have an order from the bankruptcy court extinguishing the (judgment) lien.

Tricky procedural stuff! That's why I say that it's better to try to avoid the judgment ever being recorded, which essentially means never letting it go to judgment. At least in Florida!

[IBroke]

Tricky procedural stuff! That's why I say that it's better to try to avoid the judgment ever being recorded, which essentially means never letting it go to judgment. At least in Florida!

Oh, absolutely! Fortunately, only 1 (Chase) out of the 30 creditors I BKed on thought it would be necessary to obtain a judgment against me..

I think you are right about the reason behind the one year wait. I think I might recall somebody saying that this gives a lien holder the opportunity to react and exercise his/her rights if a judgment lien exists. Those motions to avoid lien are often forgotten by "not so good" attorneys and I believe it's quite a hassle to correct such an error.

[justbroke]

IBroke, I believe that's entirely correct. It is to give the judgment lien creditor a chance to actually go after collateral. The problem with it, on a technical side, is that if they went against "real property", then they'd be stuck with the dreaded homestead exemption in the Florida Constitution (Article X Sec. 4). Personally, I think the whole thing is just silly, but they do have a valid recorded lien and it passed through the bankruptcy unaffected -- unless an order avoiding the lien was granted in the bankruptcy court.