Vacating Judgment after BK

[discombob1]

I am wondering if this is a state by state issue? Doing my own research regarding my state of Michigan, I found this:

600.2914 After a bankrupt has been discharged from his debts pursuant to the federal laws relating to bankruptcy, the bankrupt, his receiver, his trustee, or any other interested person or corporation may apply to have a judgment debt canceled and discharged of record upon proof of the bankrupt's discharge. Application for equitable relief shall be made to the court in which the judgment was rendered against the bankrupt, or if it was rendered in a court not of record, application shall be made to the court in which it became a judgment by docketing. If it appears upon the hearing that he has been discharged from the payment of that judgment or the debt upon which that judgment was recovered, an order shall be made directing that the judgment be canceled and discharged of record. This order shall recite that the judgment is canceled and discharged because of the bankrupt's discharge in bankruptcy. The clerk of the court shall then discharge the judgment by marking on the docket that the judgment is canceled and discharged by order of the court because of the defendant's discharge in bankruptcy, and the clerk shall mark the date and entry of the order of discharge.

So if I'm reading it right, I can vacate my judgments in Michigan?

[PHXDWTN]

Sounds like you can vacate your judgments if you are in Michigan.

[discombob1]

So maybe the reason it is so confusing is it's state dependent. From what was posted it seems the FL law is less clear, thus less well known by judges.

[IBroke]

Yeah - it will be very interesting to see what the response of the court will be. Also possible that I have to wait another year due to this FL-law..."BK must have been discharged for a year"...

[df04527]

I'm in FLA and just happened to speak with a lawyer here today and she was unaware this could be done. Anyone know anything more specific for FLA by chance?

[IBroke]

I'm in FLA and just happened to speak with a lawyer here today and she was unaware this could be done.

That doesn't surprise me. I guess the same applies to the majority of judges.

If you want to do something in the leagal field that ISN'T done every day, you have a problem..

[IBroke]

But bankruptcy -- even a discharge in bankruptcy -- is not grounds for vacating a judgment.

Hmm, I'm not so sure any more. After a long research, I found the following:

http://www.law.cornell.edu/uscode/ht...4----000-.html

§ 524. Effect of discharge

(a) A discharge in a case under this title—
(1) voids any judgment at any time obtained, to the extent that such judgment is a determination of the personal liability of the debtor with respect to any debt discharged under section 727, 944, 1141, 1228, or 1328 of this title, whether or not discharge of such debt is waived;

http://dictionary.reference.com/browse/voids

"to depart from; vacate"

I located this info on a different forum and the person (BTW, from FLORIDA) used this to successfully vacate a judgment.

[Freddy03]

Hmm, I'm not so sure any more. After a long research, I found the following:

http://www.law.cornell.edu/uscode/ht...4----000-.html

§ 524. Effect of discharge

(a) A discharge in a case under this title—
(1) voids any judgment at any time obtained, to the extent that such judgment is a determination of the personal liability of the debtor with respect to any debt discharged under section 727, 944, 1141, 1228, or 1328 of this title, whether or not discharge of such debt is waived;

http://dictionary.reference.com/browse/voids

"to depart from; vacate"

I located this info on a different forum and the person (BTW, from FLORIDA) used this to successfully vacate a judgment.

I saw this too on another board someone gave you. Good Luck. I'll be looking for your outcome.

[IBroke]

I saw this too on another board someone gave you. Good Luck. I'll be looking for your outcome.

Thanks! Hopefully, I don't have to file a new motion because I didn't mention the "524". However, I requested to vacate based on Florida law that it "is no longer equitable that the judgment or decree should have prospective application".

Since there are no liens tied to this judgment, the judgment was limited to my personal liability. And as you can see, my BK-discharge voided the judgment in that regards. That means the judgment has NO prospective application and needs to be vacated. It will be very interesting to see what happens but it seems that several other people vacated their judgment based on their BK-discharge. Looking at the laws, I honestly don't see a reason why it shouldn't be possible - either now or in a year.

[PHXDWTN]

IBroke: What is the statute of limitations on judgments in your state? In Arizona it's 5 years and can normally be renewed indefinitely but I've been told that since the underlying debt that created the judgment has been discharged, the judgment can't be renewed so it will automatically be void even if the judge doesn't sign off on the motion to vacate.

[despritfreya]

§ 524. Effect of discharge
(a) A discharge in a case under this title—
(1) voids any judgment at any time obtained, to the extent that such judgment is a determination of the personal liability of the debtor with respect to any debt discharged under section 727, 944, 1141, 1228, or 1328 of this title, whether or not discharge of such debt is waived;

IBroke,

Good for you. I completely forgot about this (the very 1st provision of 524). I always think in terms of the discharge acting as an injunction against collections. I forgot that it also acts to void judgments. As a result, my post on this thread is wrong as it relates to the validity of the actual judgment post discharge.

My hat's off to ya!

Des.

[IBroke]

IBroke,

Good for you. I completely forgot about this (the very 1st provision of 524). I always think in terms of the discharge acting as an injunction against collections. I forgot that it also acts to void judgments. As a result, my post on this thread is wrong as it relates to the validity of the actual judgment post discharge.

My hat's off to ya!

Des.

I'm honored, Des.!

I was so confused because there were so many other users on different boards that stated - without any doubt - that a BK-discharge would be sufficient to vacate.

After your confirmation, I feel MUCH better now.

So what do you think? Could my motion be successful? I failed to mention 524 but I used the claim that a judgment - after BK-discharge - has no prospective application.

[IBroke]

IBroke: What is the statute of limitations on judgments in your state? In Arizona it's 5 years and can normally be renewed indefinitely but I've been told that since the underlying debt that created the judgment has been discharged, the judgment can't be renewed so it will automatically be void even if the judge doesn't sign off on the motion to vacate.

If I'm not mistaken, it is 10 years in Florida. Could be wrong though. It's true that it can't be renewed - but I certainly want to get it off my credit-report ASAP.

[MSbklawyer]

Yes, a discharge does void any judgment to the extent that it is a determination of personal liability. But ONLY to that extent. It does NOT void the judgment in toto or "vacate" the judgment.

"Vacating a judgment" has a specific legal meaning under the bankruptcy rules (and most state procedural rules) and it is distinctly different from and broader than getting discharged from personal liability on a judgment. It is also different from "avoiding a judgment lien" under 522(f).

But as has been said here already, if under your state's rules the judgment did not become a lien, you'd probably have little to gain by avoiding the judgment under 522(f).

I was unaware that any state had made bankruptcy discharge a grounds for vacating a judgment -- as Michigan apparently has. It may be worth looking into to see if Florida has something similar. It must if someone has successfully vacated a judgment on the basis of a bankruptcy discharge. If so, that would take care of your credit report problem that the judgment is causing.

So, like Des, I will eat my words about discharge not being grounds for vacating a judgment -- apparently in some states it is.

[Freddy03]

If I'm not mistaken, it is 10 years in Florida. Could be wrong though. It's true that it can't be renewed - but I certainly want to get it off my credit-report ASAP.

10 years then it could be renewed for another 10 years (20 years total)