Vacating Judgment after BK

[IBroke]

Yes, a discharge does void any judgment to the extent that it is a determination of personal liability. But ONLY to that extent.

Hmm, that's good enough for me. In my case, the judgment always was a determination of personal liability - nothing more. No lien existed, exists and due to my BK, won't exist in the future. So there is nothing left of that judgment that is NOT void by the definition of 524. That results in the lack of "perspective application" and is a reason to vacate a judgment.

It certainly is different from 522(f). If you have property in jeopardy, you want to file that first - but for many no asset cases, there is no need to because you can't avoid a lien on property you simply don't own.

I also share the opinion that judgments can be vacated in EVERY state because the legal grounds (524 a 1) are Federal BK-law.

The case I mentioned occured in Florida.

[df04527]

Awesome IB -- so are you going to change any of your paperwork? I want to follow this plight if you don't mind.

[SunshineGal]

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?

This is from the Florida State Courts:

RULE 1.540. RELIEF FROM JUDGMENT, DECREES, OR ORDERS
(a) Clerical Mistakes. Clerical mistakes in judgments, decrees, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the mo-tion of any party and after such notice, if any, as the court orders. During the pendency of an appeal such mis-takes may be so corrected before the record on appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party‘s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been re-versed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.

http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/10C69DF6FF15185085256B29004BF823/$FILE/Civil.pdf?OpenElement

You can find it on page 71.

I'm not sure what it means though, lol. Maybe Des or Msbklawyer will chime in.

[IBroke]

Awesome IB -- so are you going to change any of your paperwork? I want to follow this plight if you don't mind.

I certainly don't mind..

For now, I'm going to wait and see what happens. It's possible that my motion might be denied due to this "wait one year from discharge"-clause - IF the judge is aware of that.

If it is denied for any other reason, I'm prepared and going to file a much more detailed motion. I also didn't add a copy of my discharge and petition because I thought the court or judge might prefer seeing my documents on PACER to validate them.

For now, I'm happy that I'm likely going to get rid of this personal record within months instead of years.

Oh, BTW, I found an interesting case online that deals with the validity of a judgment after BK based on the fact it there was a judgment lien or not. I think it supports my POV I posted before:

http://ftp.resource.org/courts.gov/r...5214570015.pdf

[IBroke]

RULE 1.540. RELIEF FROM JUDGMENT, DECREES, OR ORDERS
(a) Clerical Mistakes. Clerical mistakes in judgments, decrees, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the mo-tion of any party and after such notice, if any, as the court orders. During the pendency of an appeal such mis-takes may be so corrected before the record on appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party‘s legal representative from a final judgment, decree, order, or proceeding for the following reasons: ....(4) that the judgment or decree is void;....

Whoomp! (There it is..)

[SunshineGal]

If that doesn't work you can try this.

or (5) that the judgment or decree has been satisfied, released, or discharged

Gee, I thought I had a nice simple plan and after the two threads today I'm more confused than ever, lol. Do I motion through the BK court which is what my attorney said, or do I wait and file with the local state court? There seems to be very different rules regarding vacating a lien or judgment so I just don't know!!! Maybe I'll just wait and see how your case pans out, lol.

[IBroke]

If that doesn't work you can try this.

or (5) that the judgment or decree has been satisfied, released, or discharged

Gee, I thought I had a nice simple plan and after the two threads today I'm more confused than ever, lol. Do I motion through the BK court which is what my attorney said, or do I wait and file with the local state court? There seems to be very different rules regarding vacating a lien or judgment so I just don't know!!! Maybe I'll just wait and see how your case pans out, lol.

The motion to vacate judgment would go through the court where the judgment "originated". If you have any judgment lien on property, you would have to take care of that first - through the BK-court.

I went with (5) on my motion because I didn't know of the 524-clause when I filed my motion - but I think (5) could be used as well after BK-discharge. Not because the judgment has been satisfied, released or discharged - BUT because the judgment lost its "perspective application" due to your BK-discharge.

[SunshineGal]

Now see, our attorney says to file it in the BK court because there isn't a filing fee, whereas the county court there is. However, I don't know if it can be avoided in BK because it doesn't impair an exemption. I emailed my wonderful paralegal and will let you know what I find out.

[SunshineGal]

Got an answer back from the attorney. In order to avoid the the lien in the BK Court, it must impair an exemption. We didn't claim a homestead exemption so now it's on to the state courts. IBroke, will you keep us updated on how it works out for you? I'm thinking I can file the motion pro-se because it seems pretty basic.

I had a friend who had a huge headache when he went to refinance his property. Knowing what I do now, he should have signed a homestead declaration and it would have been fine, but instead he had to jump through hoops having the judgment vacated before he could get clear title. And, this was in Florida and the judgment debt had been discharged in BK. The problem boils down to the fact lenders and title agents don't know the bk laws.

[rpraver]

In Florida, to discharge a judgments of record, after it has been discharged in bankruptcy, you need to wait a year after the discharge, file your motion in state court (in the case that the judgment was entered) and follow the procedures set forth in the statute. Look at Florida Statute 55.145:

55.145

Discharge of judgments in bankruptcy.
—

At any time after 1 year has elapsed since a bankrupt or debtor was discharged from his or her debts, pursuant to the act of congress relating to bankruptcy, the bankrupt or debtor, his or her receiver or trustee, or any interested party may petition the court in which the judgment was rendered against such bankrupt or debtor for an order to cancel and discharge such judgment. The petition shall be accompanied by a certified copy of the discharge of said bankrupt or by a certified copy of the order of confirmation of the arrangement filed by said debtor. The petition, accompanied by copies of the papers upon which it is made, shall be served upon the judgment creditor in the manner prescribed for service of process in a civil action. If it appears upon the hearing that the bankrupt or debtor has been discharged from the payment of that judgment or of the debt upon which it was recovered, the court shall enter an order canceling and discharging said judgment. 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. This section shall apply only to liens under judgments or obligations duly scheduled in the bankruptcy proceedings.


--------------------
This is different from avoiding the lien. That you would do by motion in the bankruptcy case. Usually you file a Motion to avoid a lien to remove a lien from homestead property. The procedure set forth above under Florida law is to satisfy or discharge of record and judgment that was discharged in the bankruptcy proceeding.

[IBroke]

IBroke, will you keep us updated on how it works out for you?

I certainly will. As I said, it is indeed a more complicated if the judgment you are trying to vacate has a judgment lien as well.

[IBroke]

In Florida, to discharge a judgments of record, after it has been discharged in bankruptcy, you need to wait a year after the discharge, file your motion in state court (in the case that the judgment was entered) and follow the procedures set forth in the statute. Look at Florida Statute 55.145:

55.145

Discharge of judgments in bankruptcy.
—

At any time after 1 year has elapsed since a bankrupt or debtor was discharged from his or her debts, pursuant to the act of congress relating to bankruptcy, the bankrupt or debtor, his or her receiver or trustee, or any interested party may petition the court in which the judgment was rendered against such bankrupt or debtor for an order to cancel and discharge such judgment. The petition shall be accompanied by a certified copy of the discharge of said bankrupt or by a certified copy of the order of confirmation of the arrangement filed by said debtor. The petition, accompanied by copies of the papers upon which it is made, shall be served upon the judgment creditor in the manner prescribed for service of process in a civil action. If it appears upon the hearing that the bankrupt or debtor has been discharged from the payment of that judgment or of the debt upon which it was recovered, the court shall enter an order canceling and discharging said judgment. 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. This section shall apply only to liens under judgments or obligations duly scheduled in the bankruptcy proceedings.


--------------------
This is different from avoiding the lien. That you would do by motion in the bankruptcy case. Usually you file a Motion to avoid a lien to remove a lien from homestead property. The procedure set forth above under Florida law is to satisfy or discharge of record and judgment that was discharged in the bankruptcy proceeding.

It sounds to me that this is something different than vacating a judgment. The procedure you described - when successful - satisfies the judgment. That, however, is pretty much useless for us. A satisfied judgment won't be removed from your public records.
Only vacating a judgment is going to delete the public record.

Honestly, I don't even know why anybody should invest time (and probably money) just to have it recorded as satisfied. The only advantage I can think of is that the Plaintiff won't have any chance to go after the debtor in the future based on that judgment. But legally, he isn't allowed to do so in the first place.

[df04527]

great info though. I need to do more research on what triggers the bureaus

[rpraver]

Honestly, I don't even know why anybody should invest time (and probably money) just to have it recorded as satisfied. The only advantage I can think of is that the Plaintiff won't have any chance to go after the debtor in the future based on that judgment. But legally, he isn't allowed to do so in the first place.

Because satisfying it of record removes it as a lien against your property. The personal liability of the debt is discharged in the Chapter 7 case but the recorded judgment still acts as a lien against your property...until satisfied of record.

[IBroke]

Because satisfying it of record removes it as a lien against your property. The personal liability of the debt is discharged in the Chapter 7 case but the recorded judgment still acts as a lien against your property...until satisfied of record.

Ah, I see. So this is basically a kind of "replacement" for avoiding a judgment lien (which has to be filed while your BK-case is open). I guess that explains the 1 year "waiting-period" as well. This would give the Plaintiff the opportunity to exercise his rights under the judgment lien between discharge and the elapse of the first year and after that, the defendant can get rid of the lien without having to re-open his BK-case.

Great info, thanks!

I'm starting to understand this stuff...an atttorney in the making..hahahaha

Oh, BTW, something else came to my mind: If the judgment is considered "satisfied", you could still file a motion to vacate...at least a "satisfied judgment" is also mentioned as a reason to vacate:

"RULE 1.540. RELIEF FROM JUDGMENT, DECREES, OR ORDERS
(a) Clerical Mistakes. Clerical mistakes in judgments, decrees, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the mo-tion of any party and after such notice, if any, as the court orders. During the pendency of an appeal such mis-takes may be so corrected before the record on appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party‘s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied..."

So in the end, that is indeed another way to have it vacated..at least in FL.