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 Vacate Judgment

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

  • Motion to Vacate Judgment

    Would someone post a sample motion to vacate a judgment after a bk discharge?

  • #2
    they vary state by state so it's difficult to give you an example. it is rather important that your follow your states guidelines. also you may want to contact the court clerk in bk court and they should be able to assist you as well.

    you can check out an example here:

    http://www.docstoc.com/docs/36827786...-under-CCP-473
    8/4/2008 MAKE SURE AND VISIT Tobee's Blogs! http://www.bkforum.com/blog.php?32727-tobee43 and all are welcome to bk forum's Florida State Questions and Answers on BK http://www.bkforum.com/group.php?groupid=9

    Comment


    • #3
      You must have a valid reason why the motion should be vacated (ie. you were not properly served, you were in the hospital, etc) and you must indicate what kind of defense you will be using. That is the way it is in my state.

      Comment


      • #4
        once your bankruptcy is discharged and closed you can file a motion to vacate on any suit that was included in the petition, and discharged, provided it's not the IRS or some type of secured debt. you do not need any reason. there is no defense required, in any state.

        it's not a motion that should be vacated, it's the judgment which needs to be removed. so you file a "motion" to vacate the judgment and or lien.
        8/4/2008 MAKE SURE AND VISIT Tobee's Blogs! http://www.bkforum.com/blog.php?32727-tobee43 and all are welcome to bk forum's Florida State Questions and Answers on BK http://www.bkforum.com/group.php?groupid=9

        Comment


        • #5
          Originally posted by tobee43 View Post
          once your bankruptcy is discharged and closed you can file a motion to vacate on any suit that was included in the petition, and discharged, provided it's not the IRS or some type of secured debt.
          Not in Florida. Before you can file a motion, you have to wait an entire year after discharge.

          http://law.justia.com/codes/florida/...55/55_145.html
          Filed CH7 9/24/2010, 341 on 10/28/2010, Disch.&Closed: 1/6/2011. FICO EX: 9/2: 672.
          FICO EQ: pre-filing: 573, After BK Public Record: 568, 10/3: 673.
          FICO TU: pre-filing: 589, After BK Public Record: 563, 9/2: 706.

          Comment


          • #6
            Originally posted by IBroke View Post
            Not in Florida. Before you can file a motion, you have to wait an entire year after discharge.

            http://law.justia.com/codes/florida/...55/55_145.html
            you do not have to wait a year, we waited 2 weeks. and filed two motions.

            quoting from the site you got this information from:

            Disclaimer: These codes may not be the most recent version. Florida may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.

            and they are not up to date, promise. or certainly not in our case, i assure you
            Last edited by tobee43; 01-29-2012, 08:31 PM.
            8/4/2008 MAKE SURE AND VISIT Tobee's Blogs! http://www.bkforum.com/blog.php?32727-tobee43 and all are welcome to bk forum's Florida State Questions and Answers on BK http://www.bkforum.com/group.php?groupid=9

            Comment


            • #7
              Originally posted by tobee43 View Post
              you do not have to wait a year, we waited 2 weeks. and filed two motions.

              quoting from the site you got the information from:

              Disclaimer: These codes may not be the most recent version. Florida may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.

              and they are not up to date, promise.
              If you were in Florida, you were very lucky then. I was discharged a year ago and filed my motion to vacate last March. My motion was DENIED because I wasn't discharged for at least a year. 55.145 was the law the other party used to have my motion denied and was exactly what the judge gave to me as a copy. She told me to follow the instructions and told me to file again this year. In order to do that, she denied my claim without prejudice.

              I guess your judge wasn't informed or the other party simply didn't care.

              And yes, what I posted IS current:

              http://www.flsenate.gov/Laws/Statutes/2011/55.145
              Filed CH7 9/24/2010, 341 on 10/28/2010, Disch.&Closed: 1/6/2011. FICO EX: 9/2: 672.
              FICO EQ: pre-filing: 573, After BK Public Record: 568, 10/3: 673.
              FICO TU: pre-filing: 589, After BK Public Record: 563, 9/2: 706.

              Comment


              • #8
                Originally posted by IBroke View Post
                If you were in Florida, you were very lucky then. I was discharged a year ago and filed my motion to vacate last March. My motion was DENIED because I wasn't discharged for at least a year. 55.145 was the law the other party used to have my motion denied and was exactly what the judge gave to me as a copy. She told me to follow the instructions and told me to file again this year. In order to do that, she denied my claim without prejudice.

                I guess your judge wasn't informed or the other party simply didn't care.
                you are most likely correct. however, we had no problem the judge granted both of them, and also, they had to go to nj since that was where the judgements were filed although we filed our bk in florida, it was still a florida bk, not federal. interesting.

                have you re-filed the motion since a year has now past?

                LOL!! i just love an uninformed judge!
                8/4/2008 MAKE SURE AND VISIT Tobee's Blogs! http://www.bkforum.com/blog.php?32727-tobee43 and all are welcome to bk forum's Florida State Questions and Answers on BK http://www.bkforum.com/group.php?groupid=9

                Comment


                • #9
                  Originally posted by tobee43 View Post
                  you are most likely correct. however, we had no problem the judge granted both of them, and also, they had to go to nj since that was where the judgements were filed although we filed our bk in florida, it was still a florida bk, not federal. interesting.

                  have you re-filed the motion since a year has now past?

                  LOL!! i just love an uninformed judge!
                  Hmm, since the judgments were filed in NJ, the scenario could be totally different.
                  I'm currently thinking of re-filing my motion. Probably during the next couple of weeks. 55.145 here in Florida is a total mess. I know that nobody can collect on the discharged judgment - but I want it off my credit-report. A user with some legal background on myfico.com made the claim that 55.145 can't be used to vacate judgments in the first place. Actually, he said that there is no legal way in Florida to vacate judgments that were discharged through BK. He said in 55.145, it says that the granted petition to cancel and discharge would have the same effect as the satisfaction of judgment - and therefore, the judgment would be considered "satisfied" and not "cancelled" or "vacated" (cancelled/vacated should actually be the same).

                  I argued that this is nonsense because if you file a petition to have a judgment cancelled and said petition is granted, the judgment would be canceled because that was what the petion and order is going to read. And that a satisfied and cancelled judgment should have the same effect is not a surprise.

                  What's your take on that?
                  Filed CH7 9/24/2010, 341 on 10/28/2010, Disch.&Closed: 1/6/2011. FICO EX: 9/2: 672.
                  FICO EQ: pre-filing: 573, After BK Public Record: 568, 10/3: 673.
                  FICO TU: pre-filing: 589, After BK Public Record: 563, 9/2: 706.

                  Comment


                  • #10
                    Originally posted by IBroke View Post
                    Hmm, since the judgments were filed in NJ, the scenario could be totally different.
                    I'm currently thinking of re-filing my motion. Probably during the next couple of weeks. 55.145 here in Florida is a total mess. I know that nobody can collect on the discharged judgment - but I want it off my credit-report. A user with some legal background on myfico.com made the claim that 55.145 can't be used to vacate judgments in the first place. Actually, he said that there is no legal way in Florida to vacate judgments that were discharged through BK. He said in 55.145, it says that the granted petition to cancel and discharge would have the same effect as the satisfaction of judgment - and therefore, the judgment would be considered "satisfied" and not "canceled" or "vacated" (canceled/vacated should actually be the same).

                    I argued that this is nonsense because if you file a petition to have a judgment canceled and said petition is granted, the judgment would be canceled because that was what the petition and order is going to read. And that a satisfied and canceled judgment should have the same effect is not a surprise.

                    What's your take on that?
                    no, not really since, that had nothing to do with it. i filed in florida under the florida bk statues. the fact that the judgment, like many, are generated from another state has nothing to do with it.

                    i would really talk to another atty, since whom ever is telling you there is no legal way in florida to vacate a judgment once it has been discharged is simple untrue. fact is, as i have stated before, it really doesn't matter much about what's on your credit report at the moment, it's what can turn up in 10 years down the road that counts...and it has a likelihood of showing up when you least expect it.

                    i would most definitely re-file the motion, you have a right to have it vacated! geesh, what is the deal with these people??
                    8/4/2008 MAKE SURE AND VISIT Tobee's Blogs! http://www.bkforum.com/blog.php?32727-tobee43 and all are welcome to bk forum's Florida State Questions and Answers on BK http://www.bkforum.com/group.php?groupid=9

                    Comment


                    • #11
                      Originally posted by tobee43 View Post
                      I would most definitely re-file the motion, you have a right to have it vacated! geesh, what is the deal with these people??
                      From a BK perspective, you are absolutely correct that it doesn't matter where you filed for BK. And since federal law is supposed to superceed State Law, your BK-discharge should be sufficient to have the judgment vacated. This was the argument I made in front of the judge. But why should a Florida judge care about Federal Law if Florida has a specific regulation for this scenario? And that's what I mean by saying that NJ could be different. I know for sure that other States have matching State-Law just like Florida's 55.145 - but not every state requires this stupid 1 year wait.

                      I'm certainly going to re-file. I just wanted to make sure that I knew the consequences before I went through with it. Vacating - or in other words, cancelling - is exactly what I want to accomplish and that should prevent it from showing up again on my credit-report. Anyway, the way judgments after discharge are handled by the CRAs is totally confusing:

                      Experian deleted the judgment right after discharge, Equifax is reporting it as "satisfied" and TU is reporting it as "Judgment in Bankruptcy". Very inconsistent.

                      I simply can't believe that a granted motion to discharge and cancel a judgment would turn the judgment itself into a "satisfied" judgment. The way I see it is that once my motion is granted, I will receive the according order from the judge that the motion to cancel and discharge was granted. This motion should be enough proof for the CRAs to take it off my file.
                      Filed CH7 9/24/2010, 341 on 10/28/2010, Disch.&Closed: 1/6/2011. FICO EX: 9/2: 672.
                      FICO EQ: pre-filing: 573, After BK Public Record: 568, 10/3: 673.
                      FICO TU: pre-filing: 589, After BK Public Record: 563, 9/2: 706.

                      Comment


                      • #12
                        Originally posted by IBroke View Post
                        Not in Florida. Before you can file a motion, you have to wait an entire year after discharge.

                        http://law.justia.com/codes/florida/...55/55_145.html
                        So can they enforce the judgement then during that year?
                        Filed 11/17/11 Chapter 13, 341 meeting 12/21/11. Plan confirmed 1/19/12 - DISCHARGED 12/16/15

                        Comment


                        • #13
                          Originally posted by mountanddo View Post
                          So can they enforce the judgement then during that year?
                          No, they can't. You are protected from any form of enforcement from the moment you filed for BK. This protection is automatic - just like it is for any debt that's part of your petition.

                          The motion this law is all about is focused on cancelling (vacating) the judgment which is necessary to get it off the credit report. The average Joe usually doesn't care what happens to a judgement post-BK because it can't be enforced any more. Some people, however (including me), simply want to get rid of it completely and get it off the credit-report.
                          Filed CH7 9/24/2010, 341 on 10/28/2010, Disch.&Closed: 1/6/2011. FICO EX: 9/2: 672.
                          FICO EQ: pre-filing: 573, After BK Public Record: 568, 10/3: 673.
                          FICO TU: pre-filing: 589, After BK Public Record: 563, 9/2: 706.

                          Comment


                          • #14
                            our purpose to vacate the judgment was not to get them off the credit reports, it was to remove them from the recording system of the courts. actually, they never showed up on our credit reports. i was more concerned about a title seach at a later date, although, i'm not certain how it would have looked since we surrendered the property the liens were place against.

                            we were thinking more on the lines, years down the road if we wanted to purchase another house (which we did) it would should up when they did our searches via the title company and it could present some type of problem. i don't even know if that could have happened, i just wanted them gone. i still don't know if nj would not respect the state that one filed their bk in. that's a bit fuzzy isn't it.
                            8/4/2008 MAKE SURE AND VISIT Tobee's Blogs! http://www.bkforum.com/blog.php?32727-tobee43 and all are welcome to bk forum's Florida State Questions and Answers on BK http://www.bkforum.com/group.php?groupid=9

                            Comment


                            • #15
                              Soooo, my attorney at justanswer took care of my question:

                              Me: I had an argument with a different person on a forum who claims to be a lawyer as well, and he made the claim that there is no legal tool in the State of Florida to vacate a judgment after Bankruptcy - based on what I just posted. He claims that judgments will be considered "satisfied" and NOT cancelled/vacated after the court approves the 55.145 petition. I made the argument that it only makes sense that a cancelled judgment should have the same effect as a satisfied one because in both cases, the party who filed has no claim against you any more.

                              However, it is MY opinion that the correct LEGAL status of this judgment should be "cancelled" because my PETITION was to have the judgment cancelled and discharged - and not to have it "satisfied". So if the petition for cancellation is granted, it should be considered "cancelled" and not "satisfied", correct?


                              Lawyer: Yes, that is correct. Again, I do not know why one must go through this hurdle in the State of Florida when a Discharge has already been granted by the Bankruptcy Court wiping out the debt. I guess until your State legislature acts to change this law, you would have to live with it. It just does not make any sense.

                              Me: The next confusing thing in this stupid Florida law is the part that says the order of cancellation may be recorded as satisfaction of judgment. How is that supposed to work? Why would anybody record a satisfaction of a cancelled judgment? Or is the judgment after the application of 55.145 only "satisfied" and not "cancelled" after all?

                              Lawyer: The Florida Statutes specifically state that "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." So, it is really a Cancellation of Judgment and NOT a Satisfaction of Judgment eventhough it may be treated as such. If you are going to be filing the Petition to Cancel Judgment, you might as well go to the last step and record the Cancellation of Judgment.

                              Hopefully, I could provide some helpful info to other forum-members who are facing the same problem - especially in Florida. The internet doesn't provide any information about this topic. None at all.
                              Filed CH7 9/24/2010, 341 on 10/28/2010, Disch.&Closed: 1/6/2011. FICO EX: 9/2: 672.
                              FICO EQ: pre-filing: 573, After BK Public Record: 568, 10/3: 673.
                              FICO TU: pre-filing: 589, After BK Public Record: 563, 9/2: 706.

                              Comment

                              Unconfigured Ad Widget

                              Collapse
                              Working...
                              X