Announcement

Collapse

Forum Rules (Everyone Must Read!!!) (updated: 04/28/2015)

Welcome to the Bankruptcy Forum. Bankruptcy (BK) Forum is known as BKForum.com and will be referred to as BKF hereinafter. In order to ensure a long term success of our vibrant community, we have established certain rules and guidelines to which everyone must adhere to. Please take your time to carefully read our rules, before you start to participate in the community.

Things you agree to do:
BKFORUM.com (BKF) users agree to use the search function before starting a new thread. This prevents duplicate discussions and allows for better organized topics.

All BKF users agree to read the sticky posts which may be available at the top of a forum page. These Sticky posts often contain valuable information. They may also outline more rules and guidelines specific for that particular forum, stickies are put in place by that forums moderator(s) or admin(s).

Things you agree not to do:

All BKF users agree not to call people names or write a post simply to make a personal attack, or get a negative reaction; this behavior is not allowed on our forum. The use of derogatory language aimed at anyone will be severely dealt with. There is no need to agree with each other, or to even like each other. However, by signing onto BKForum.com you agree to treat each member and guest with the respect they deserve. No threats or personal attacks will be allowed.

All BKF users agree not to discuss, engage, or encourage any behavior or activity which violates the law. Discussion of drugs, violence, murder, theft, vandalism, fraud or any other issue which could be used to help individuals break the law is strictly forbidden.

All BKF users agree not to "bump" old threads, unless there is a specific benefit to the community by doing so. But in most cases, please don't post in very old threads, instead start new threads.

All BKF users agree not to attempt/use another members account. It is against BKF rules to use any account other than your own. Impersonating another member will result in an immediate ban. It is also against the rules to open more than one account in your own name without permission from a moderator or administrator. If you have been banned for any reason, it is against the rules to open another account. If you were banned temporarily and you are caught using another account you will be banned permanently. Choosing a moniker which is similar in either sound or spelling as a moderator or administrator is strictly forbidden.

All BKF users agree not to private message any moderator, admin, or other member with questions related to their personal circumstances (Questions about the forum or issues with the forum are ok). This forum only works when members share their experience and insights with everyone.

Things you agree not to post:
All BKF users agree not to post any derogatory/racist/or sexist remarks. This includes attachments, links and all information contained within posts, signatures, and avatars, failure to comply with this rule will result in a permanent ban.

All BKF users agree not to post any copyrighted or trademarked information without the express written permission of the owner(s) / proper citation of source.

All BKF users agree not to post any real names, addresses, telephone numbers, email addresses, social security numbers, or any other personal details (their own or other people's).

All BKF users agree not to post links, pictures, attachments, videos, or the like of pornographic content, objectionable material or extreme violence, whether cartoon or real.

All BKF users agree not to use BKF for advertising purposes without a written contract between yourself/company/agent and the administration of BKF. Blatant advertising will result in a ban.

All BKF users agree not to spam the forums. Spam includes but is not limited to posting erroneous, non-relevant-useless, off-topic, or meaningless posts. Spam may also include posts which contain no text, or large areas of blank space between lines. Simply posting emoticons without text is considered spam. BKF is the largest bankruptcy message board and all the content is intended to help other users. Please help us improve the quality of our forum by making sure that your posts are well-worded, spell checked, grammatically correct and syntaxed.

Regarding actions of moderators and administrators:

The forum is no place to air out your opinion or be judgmental of our staff and its capabilities.

All BKF users agree not to abuse or mistreat moderators or administrators. It is against BKF rules to post any information regarding bans or any other action taken by a member of the moderating or administrative team. If you wish to discuss bans or warnings please do so via PM. To place a complaint against a moderator, send a PM to a super moderator. All Moderators are equal, any decision made by a moderator must be adhered to. If a moderator tells you something you do not like, do not go to another moderator looking for a different answer. If you are caught doing this you will be banned. The moderators work as a team and respect the decisions made by their peers and will help enforce them unless an administrator tells them differently.
If you have an issue with how the forum is run, then notify one of our administrator and we will look into the situation. We have in the past and still do appreciate any input that you offer this forum. But critical input and/or judgmental postings towards the staff will result in you getting banned.


Should you find a thread offensive or out of line, then notify a Mod in a PM so they can evaluate the situation and do the action deemed necessary.

All moderators do have active "other" lives outside of the forum and help moderate this forum in their spare time throughout the days and weeks.

If you have a problem with a member or Mod follow the proper channels of reporting it.

BKF reserves the right to delete any posts which contain anti-BKF comments or discussion. Any bashing of moderators or administrators, or any of their discussion or actions will also be deleted, and the responsible posting party(s) will be banned. Any public anti-BKF advertising, communication, or posts on another forum will result in permanent bans as well.

All warnings and bans are decided by individual moderators and administrators. Warnings are preferable to bans however, for serious offenses and repeat abusers bans will go into effect. The length of the bans can vary from several hours to permanent.

All messages posted or sent including through PM are the property of BKforum.com.

All BKF users agree not to advertiser on the forum (Niether by posting, private messaging or using your signature). If you are a company/attorney/legal adviser wishing to advertise on the site or sell a product, you must contact the head administrator and inquire about our advertising packages.

All bankruptcy related opinions expressed on BKForum.com are those of their authors and not necessarily of BKF, its staff or representatives.

You agree not to copy any material/post/content from BKF without written permission from our head administrator .

By posting on this forum you agree to these terms and conditions, including any punishment deemed appropriate by moderators or administrators in the event of an offense.

Administrators/Moderators can change these rules at any time without prior notice.
See more
See less

"Motion To Set Aside"??

Collapse
X
  • Filter
  • Time
  • Show
Clear All
new posts

  • "Motion To Set Aside"??

    In another thread, one of the very knowledgeable moderators of this forum (and they are all very knowledgeable) seemed to suggest that judgments are not automatically discharged in bankruptcy. This comment seemed to imply that there is some necessary step that must be taken in order to render the judgment ineffective - filing a Motion to Set Aside (or words to that effect.
    The NOLO Chapter 7 Bankruptcy book has a paragraph on page 262 entitled "Lawsuit Judgments". One of the sentences - verbatim: "Money judgments are almost always dischargeable in bankruptcy, regardless of the facts that led up to the lawsuit in the first place." There are one or two exceptions dealing with debts that are not dischargeable under any circumstances.

    Perhaps the moderator was referring to judgments attached to secured debt?

  • #2
    No, the mod was right.

    Judgments do two things:

    1. They evidence your personal liability for the debt.

    2. They create a lien against all your property in the county or parish where they are enrolled.

    The bankruptcy discharge takes care of the first problem: It discharges your personal liability for the debt.

    However, the bankruptcy discharge does nothing to affect the lien created by the judgment. To get rid of the lien, you have to show that the lien impairs an exemption to which you would be entitled but for the lien. Different districts have different procedures, but here you do this by filing a "Motion To Avoid Judgment Lien". If none of your creditors object to your motion, the court issues an order avoiding the judgment lien which you then record with the judgment, thereby avoiding the lien.
    Pay no attention to anything I post. I graduated last in my class from a fly-by-night law school that no longer exists; I never studied or went to class; and I only post on internet forums when I'm too drunk to crawl away from the computer.

    Comment


    • #3
      Originally posted by kornellred View Post
      In another thread, one of the very knowledgeable moderators of this forum (and they are all very knowledgeable) seemed to suggest that judgments are not automatically discharged in bankruptcy. This comment seemed to imply that there is some necessary step that must be taken in order to render the judgment ineffective - filing a Motion to Set Aside (or words to that effect.
      The NOLO Chapter 7 Bankruptcy book has a paragraph on page 262 entitled "Lawsuit Judgments". One of the sentences - verbatim: "Money judgments are almost always dischargeable in bankruptcy, regardless of the facts that led up to the lawsuit in the first place." There are one or two exceptions dealing with debts that are not dischargeable under any circumstances.

      Perhaps the moderator was referring to judgments attached to secured debt?
      Yes I am familiar with what you stated in the Nolo book. However, the Federal Judge may not know of your civil Judgments. You must inform him and he will make a degree that you file with your civil court.

      Your best bet is a good bk lawyer, but here is a link you might investigate for cursory information.

      http://bankruptcy-law.freeadvice.com...bankruptcy.htm

      'Hub
      If I knew it all, would I be here?? Hang in there = Retained attorney 8-06, Filed 12-28-07, Discharge 8-13-08, Finally CLOSED 11-3-09, 3-31-10 AP Dismissed, Informed by incompetent lawyer of CLOSED status, October 14, 2010.

      Comment


      • #4
        Originally posted by kornellred View Post
        In another thread, one of the very knowledgeable moderators of this forum (and they are all very knowledgeable) seemed to suggest that judgments are not automatically discharged in bankruptcy.
        To say that a judgment is or isn't discharged is nonsensical. It's like asking "What color is Tuesday?". A discharge in bankruptcy means to absolve from further liability for a debt. A judgment can't be liable for a debt. A judgment is evidence of a debt. So no, a judgment can never be discharged because it can never be liable in the first place. Debtors are discharged, not judgments.
        Pay no attention to anything I post. I graduated last in my class from a fly-by-night law school that no longer exists; I never studied or went to class; and I only post on internet forums when I'm too drunk to crawl away from the computer.

        Comment


        • #5
          Originally posted by MSbklawyer View Post
          No, the mod was right.

          Judgments do two things:

          1. They evidence your personal liability for the debt.

          2. They create a lien against all your property in the county or parish where they are enrolled.

          The bankruptcy discharge takes care of the first problem: It discharges your personal liability for the debt.

          However, the bankruptcy discharge does nothing to affect the lien created by the judgment. To get rid of the lien, you have to show that the lien impairs an exemption to which you would be entitled but for the lien. Different districts have different procedures, but here you do this by filing a "Motion To Avoid Judgment Lien". If none of your creditors object to your motion, the court issues an order avoiding the judgment lien which you then record with the judgment, thereby avoiding the lien.
          Thank you MSBKL, I haven't seen you lately. Miss JK lawyer too. 'Hub

          EDIT; BTW what color IS Tuesday?? LOL.
          If I knew it all, would I be here?? Hang in there = Retained attorney 8-06, Filed 12-28-07, Discharge 8-13-08, Finally CLOSED 11-3-09, 3-31-10 AP Dismissed, Informed by incompetent lawyer of CLOSED status, October 14, 2010.

          Comment


          • #6
            I was the thread starter of which kornellred refers to.

            I ask this question to my atty. 1st response from assistant.
            quote
            The judgment cannot be collected on while you are in bankruptcy if it a pre-petition debt. If it is post-petition and you have a wage order for the Chapter 13, then the creditor will have to wait in line until the BK is done.
            unquote

            still didn't asnwer my question and I am waiting for a better response.

            my next question

            The judgement is pre-petition. And it is a credit card
            One of the same accounts the they have filed a claim for in our 13 plan
            and will get something over the length of the plan.
            So if they get paid eventually something in the plan, doesn't the
            judgement need to be vacated? OR something?

            We have no property, no house just and old truck and fairly new car that we are cramming in the bk

            Judgement granted 12/11/09 filed bk 13 on 12/31/09, less than 90 days
            Last edited by hindsight; 01-29-2010, 11:01 AM.

            Comment


            • #7
              Really the only reason to avoid a judgment is if it attaches to your real estate.

              Otherwise it is uncollectible and you could just let it expire.

              As far as credit reporting goes, a Judgment is bad whether it's paid or unpaid.
              Best to just dispute it and try to get it removed. Normally since the court is not an information provider (the data is mined by a 3rd party) these tend to not get defended.

              Just my opinion, I'd be interested in hearing any other thoughts.
              filed chapter 13..confirmed...converted to chapter 7...DISCHARGED!

              Comment


              • #8
                the trouble is SOME lawyers wont tell you that it costs EXTRA to have these liens removed......this is from California lawyer

                Removal of judgment liens that impair your homestead exemption is handled by motion. The Law Offices Of ...........fees to handle your bankruptcy proceeding do not include prosecuting such a motion to avoid involuntary judicial liens. If you own a home that you wish to keep and continue paying for during and after bankruptcy and you believe there is a possibility that you may have been sued at some point in the past resulting in a judgment against you and, in turn, a judgment lien or abstract of judgment recorded by the judgment creditor in the county in which you live, it is not a bad idea to purchase a preliminary title report in order to determine whether filing a motion to remove an involuntary lien is advisable and necessary. If you do not intend to continue paying for the home, you are certain that no one other than a taxing agency has liened your home, or the balance owing to the lienholder does not warrant paying the approximately $150 to $300 to purchase a preliminary title report and the approximately $750 to $1,000 to have the law offices of....... prepare and file a motion to remove the lien, then purchasing a preliminary title report does not appear necessary. Otherwise, the Law Offices of .............suggests you do so.
                ....
                Only judicial liens can be avoided if there is impairment of the exemption which you have claimed against your property. Other involuntary liens, such as statutory tax liens, mechanic's liens, and lis pendens are not avoidable pursuant to Section 522(f).

                Bankruptcy Code Section 522(f) is a purely bankruptcy tool, available only during bankruptcy. If the bankruptcy case is concluded and you realize months or years later that there was a judgment lien against your home, often discovered during a potential sale or refinancing, you can seek to have the bankruptcy court reopen the proceeding so that a motion to avoid a judgment creditor's lien can be filed and prosecuted, but you must realize that it may take sixty days or more to obtain the bankruptcy court order, and there is no guarantee that the bankruptcy judge will grant the motion to reopen the case.

                It is your responsibility to alert ............ to the presence of judgment liens against your property so that an appropriate motion can be prepared and filed. It is not up to the Law Offices of .......... to determine whether there are judgment liens against your property.

                If you do not own real estate on the date of bankruptcy, the fact that a creditor may have recorded an abstract of judgment will be of no import; there is no need to file a motion to avoid the judgment creditor's lien since the lien did not attach itself onto any assets.

                Back to Top

                Are There Any Other Types Of Liens Against My Assets That Can Be Avoided In Bankruptcy?

                Yes. Nonpurchase money nonpossessory liens against certain exempt assets can also be avoided under Bankruptcy Code Section 522(f). For example, say you already own a television, a VCR, a stereo system, and/or a computer. You need a loan. So you go to an entity like Beneficial California or American General. You borrow a certain amount, say $5,000.00, and as collateral, you pledge your television, your VCR, your stereo system, and/or your computer. The lender, say Beneficial California, accordingly has a lien against the collateral pledged. Since the loan was not obtained in order to purchase the collateralized goods and you, not the lender, are in possession of the collateralized goods, Beneficial California's lien is nonpurchase money nonpossessory. Since household goods and furnishings are exempt in bankruptcy, under the Bankruptcy Code, Beneficial California's lien can be avoided.

                As noted above, Bankruptcy Code Section 522(f) is a purely bankruptcy tool, available only during bankruptcy. If the bankruptcy case is concluded and you realize months or years later that there was a nonpurchase money nonpossessory lien against your household goods and furnishings or other exempt personal property, you can seek to have the bankruptcy court reopen the proceeding so that a motion to avoid the creditor's lien can be filed and prosecuted, but you must realize that it may take sixty days or more to obtain the bankruptcy court order, and there is no guarantee that the bankruptcy judge will grant the motion to reopen the case.

                It is your responsibility to alert The Law Offices Of .......to the presence of nonpurchase money nonpossessory liens against your property so that an appropriate motion can be prepared and filed. It is not up to The Law Offices of ........... to determine whether there are nonpurchase money nonpossessory liens against your property.



                If I Am Operating A Business And File Bankruptcy, Must

                Comment

                Unconfigured Ad Widget

                Collapse
                Working...
                X