Judgements: What to do...

[dneil]

Okay, I am extremely confused now Remember I had sent my attorney (who specializes in bankruptcy) an email? Well, here is his reply along with my email.

Hi Jeff
I hate bothering you about stuff. But I am still working on things to get this bankruptcy stuff out of my way.... The judgments against us at the courts (manistee, Benzie, Grand Traverse) do I need to file a motion to have these judgments removed? If so, is this something I need to hire you for? Or is it something a somewhat intelligent person can do on their own? In reading about bankruptcy and judgments won against someone prior to bankruptcy, it looks like those judgments remain unless they are "set aside or vacated". What do you know about this and what is your suggestion?

If this is best handled by attorney, then what is the fee? I would like to have these judgments gone from the courts and my understanding is that this can be done?

Thanks for your help!

(HIS REPLY)
Judgments entered in state court do not go away simply because you filed Bankruptcy. They will always remain in the court's records but the creditor who obtained the Judgment against you, cannot file any further pleadings in that case as a result of your Bankruptcy filing. You cannot remove them.

Your credit reports will always reflect any Judgments entered against you and your husband as well as your prior payment history with creditors, etc. But, it should also reflect that the account was included in your Bankruptcy. Bankruptcy stays on your credit report for 7 - 10 years. You just want to make sure that your credit report reflects that the negative accounts (all of your creditors that you listed in your paperwork) were included in a Bankruptcy.
Jeffrey C. Alandt

121 E. Front Street
P.O. Box 1189
Traverse City, MI 49685-1189
[email protected]

https://www.alandtlaw.com

Phone: 231-941-7766
Fax: 231-941-8574


Why is it that he is not "getting" what I am asking??? He says that those records can not go away. I called the court and they said to talk with my attorney. Maybe I need to find another attorney to handle this part of things...

[dneil]

So then I just sent him this: (hoping I don't sound like a jerk)

According to: MCR 2.612 - Relief From Judgment or Order It appears that there is a way to set aside the default judgment. So my question is whether your office can do this or if this is something I have to do on my own. Am I reading this wrong, or is it possible that due to the bankruptcy discharge I can file a motion to "set aside" the default judgment.

Thanks for your help
(A) Clerical Mistakes.

(1) Clerical mistakes in judgments, orders, or other parts of the record and errors arising from oversight or omission may be corrected by the court at any time on its own initiative or on motion of a party and after notice, if the court orders it.

(2) If a claim of appeal is filed or an appellate court grants leave to appeal, the trial court may correct errors as provided in MCR 7.208(A) and (C).

(B) Defendant Not Personally Notified. A defendant over whom personal jurisdiction was necessary and acquired, but who did not in fact have knowledge of the pendency of the action, may enter an appearance within 1 year after final judgment, and if the defendant shows reason justifying relief from the judgment and innocent third persons will not be prejudiced, the court may relieve the defendant from the judgment, order, or proceedings for which personal jurisdiction was necessary, on payment of costs or on conditions the court deems just.

(C) Grounds for Relief From Judgment.

(1) On motion and on just terms, the court may relieve a party or the legal representative of a party from a final judgment, order, or proceeding on the following grounds:

(a) Mistake, inadvertence, surprise, or excusable neglect.

(b) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under MCR 2.611(B).

(c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.

(d) The judgment is void.

(e) The judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application.

(f) Any other reason justifying relief from the operation of the judgment.

(2) The motion must be made within a reasonable time, and, for the grounds stated in subrules (C)(1)(a), (b), and (c), within one year after the judgment, order, or proceeding was entered or taken. A motion under this subrule does not affect the finality of a judgment or suspend its operation.

(3) This subrule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding; to grant relief to a defendant not actually personally notified as provided in subrule (B); or to set aside a judgment for fraud on the court.

[dneil]

Okay... well here is his response.

Danielle -

You CAN'T set aside your Judgments. They were entered in state court and were included in your Bankruptcy. Which means, you don't owe them anymore. Bankruptcies are filed in federal court which supersedes state court. What you are reading are state court rules. If you had not filed Bankruptcy and wanted to set aside your Judgment based on error, fraud, etc., then the rules you are referencing would apply. However, to file a Motion to Set Aside a Judgment, I believe (from memory) the Motion has to be filed within 21 days of the entry of the Judgment. But, everything you are reading, it not applicable.


Jeffrey C. Alandt

121 E. Front Street
P.O. Box 1189
Traverse City, MI 49685-1189
[email protected]

https://www.alandtlaw.com

Phone: 231-941-7766
Fax: 231-941-8574

I guess whatever could be done has been done. ???

[MeLLE159]

OMG I'm confused too! Maybe we don't have anything to worry about.

[dneil]

I am guessing not. He specializes specifically in bankruptcy and is the best in this area..... that is why we hired him. I wrote him back and thanked him for clearing things up for me (lol). But to be honest, I was still confused. I am beginning to think that in Michigan, there is nothing more that needs to be done (other than being sure things are right in your credit report). (dneil shrugs)

[backtoschool]

I am in Michigan you you need to fill out paperwork at the court where the judgment was filed and granted and pay the fees to formally vacate the judgment ($200 I think). I did this after my discharge for my judgments in addition to disputing them off of my credit reports.

[MeLLE159]

Interesting backtoschool thanks for the info. Hopefully it won't be anything too involved and we can figure it out by ourselves. Thanks

[dneil]

Back to school- do you remember the names of the forms required?

[dneil]

I am in Michigan you you need to fill out paperwork at the court where the judgment was filed and granted and pay the fees to formally vacate the judgment ($200 I think). I did this after my discharge for my judgments in addition to disputing them off of my credit reports.

You paid 200 dollars per judgment? (hand to forehead) ARGH!

[dneil]

I am just going to call an attorney out of the phone book and ask. It can't hurt. I am starting to wonder if it is the Paralegal answering his emails...... Which might explain the content of his messages. I will call an attorney about it tomorrow...

[MeLLE159]

I know I read $200 and was shocked too. Well please let me know what you find out. And backtoschool any info you can provide is much appreciated!

[dneil]

I will definitely keep you posted. This who "motion to vacate" is a thorn in my side. I am getting different info from every which way. The worst part is that my attorney (or paralegal?) is saying this can't be done, however everything on the net points to the fact that it CAN be done. I will find out and I will also find out how. I don't like thorns in my side. LOL

[kymgirly]

I too had lawsuits filed against me, they lead to me BK BUT after my attorney notified that I filed I received paper work saying that I was no longer liable for the judgement. The difference is that I didn't have a default judgement I asnwered my law suit and there was a consent agreement. If you have a default judgment I don't thinK that there is a way to change the kind of judgment unless there is an approved reason like you were never served. Filing bK doesn't change the fact that you didn't show up or answer a law suit it just means you don't have to pay it.

[Snax]

But isn't it a distinction without a difference as to whether a judgement is entered as default vs. consent after the BK is done? I.e., what difference does that make?

Here in Oregon, we allowed a default judgement less than a week before filing our Ch7. Based on the wording of the summons, it essentially said if we didn't show, the other side wins. As the debt is valid, is there some protection we gave up by not appearing since we were not required to do so?