Vacating Judgment after BK

[filed]

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.


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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.

I have 2 judgements against me before I filed ch 7. How do I know if there were liens recorded as well as the judgement, and against what property the liens would be against, if any?

[IBroke]

kuddo's to you Ibroke!!!!!!!

great job, and excellent sharing of info!

Although I finally know the exact procedure in my State, I'm still NOT getting it completely.

524 of Federal BK-law completely voids any judgment with discharge if no judgment lien exists. So according to Federal law, my judgment is already void.
Now, however, State law requires me to wait for an entire year after discharge before I can file a petition to have a judgment "cancelled and discharged" - a judgment which is already void according to Federal law. I understand that a discharge MIGHT be overturned within one year - but that still doesn't explain it. Mind you that the applicable State-law can't be applied earlier than one year after discharge in the first place. If the discharge is NOT overturned, the judgment stays void and that brings us back to the initial question: What's the purpose of cancelling and discharging a void judgment?

Does a "satisfied" judgment has any advantage over a "void" one?

At least I know now that a "cancelled" judgment has the same legal effect as a "vacated" one so I don't have to file another motion in addition to the upcoming Petition.

[tobee43]

kuddo's to you Ibroke!!!!!!!

great job, and excellent sharing of info!

[IBroke]

So, I just returned from my hearing. Here are the results:

I'm going back to the initial reply in this thread because it was very close to reality:

The Court will not act on it on its own and "accept" it or not. You will have to contact the judge's office and schedule time for a hearing.

That part was wrong. The hearing was indeed scheduled by the Court and I was informed about it by the Plaintiff.

You will also have to serve a copy of the Motion and a Notice of Hearing on the Plaintiff to give them an opportunity to be heard. You will also have to file a certified copy of your Bankruptcy discharge in the Court file. Most judges are not familiar with the procedure and it will be up to you to educate them. Read the applicable statute carefully and follow it step by step. Also remember, your discharge has to be entered at least 12 months before you can get the judgment vacated, or satisfied of record.

That part, however, was spot on.

"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."

....does indeed apply and I have to file again in 10 months. The judge was very friendly and she even provided me with a copy of 55.154. Certainly, my motion was denied but the judge pointed out that it was denied without prejudice, meaning I could come back in 10 months and "re-file" to have the judgment cancelled and discharged.

55.145 "converts" the status of this judgment into "satisfied". A discharged or satisfied judgment may then be vacated through Rule 1.540.

So yes, there is a waiting-period here in Florida BUT a judgment IIB CAN be vacated. That's a fact. Based on what I've heard today, this can even be done if judgment liens exist - at least that's what the final sentence of 55.145 is telling me.

So to su

[IBroke]

The Court will not act on it on its own and "accept" it or not. You will have to contact the judge's office and schedule time for a hearing.

Just wanted to provide you folks with an update:

Picked up the mail today and received a notification from the Plaintiff's attorney. On March 16th, there will be a hearing which was scheduled by the court - not me.
I'll gather all my paperwork (BK discharge, BK schedules etc.) and attend that hearing in person.

Let's see what's going to happen then..

[tobee43]

Hi tobee,

You're too sweet! Thank you, but just about everything I've learned has been through this forum. Before I ever posted I must have spent 8 months reading every post I could find that might relate to my situation. In fact, with all my past work experience, I learned something new on this thread alone.

Missed ya girlie!

well...SG...where ever it comes from, it also with such thought and validity...and it just since to learn here...i so agree...and you're a great one with searching out information...calling one's atty for some insight is by far ...far and above the bkforum "duties"...and it is just so appreciated...

missed you too!

[SunshineGal]

Hi tobee,

You're too sweet! Thank you, but just about everything I've learned has been through this forum. Before I ever posted I must have spent 8 months reading every post I could find that might relate to my situation. In fact, with all my past work experience, I learned something new on this thread alone.

Missed ya girlie!

[tobee43]

Well, at least we know that a judgment CAN be vacated after BK.

A few days ago, I thought I was "in the wrong movie"...

I'm really interested in the outcome of my initial motion.

i think it will work...i do...and SG is so right about florida...and although we filed in florida..our motion to vacate were not applicable to the liens on any property in florida..and they were removed and SHOOT....i do have copies of the signed orders on my hard drive that is STILL down....i would just like to get the order which was granted to vacate verbalization to you...and i do know the liens were most certainly removed.

again, i know it varies state to state...i wish i could find those "hard" copies of the signed orders...darn!


SG....just a note i always forget to mention.......man.... you are one impressive smart human!!!!!! i love it when you post!

[IBroke]

Florida just may be the worst for this, lol. Think about it, we have an unlimited homestead exemption, you have to petition the BK court to avoid the lien, but only if it impairs your exempt property. Meanwhile, Judgments can't attach to homestead property, nor can they attach to Tenancy by the Entireties UNLESS the debt is owed by both husband and wife. So basically you have 3 different complicated ways to get rid of a judgment lien that can't be enforced under most cases anyway.

Well, at least we know that a judgment CAN be vacated after BK.

A few days ago, I thought I was "in the wrong movie"...

I'm really interested in the outcome of my initial motion.

[SunshineGal]

Florida just may be the worst for this, lol. Think about it, we have an unlimited homestead exemption, you have to petition the BK court to avoid the lien, but only if it impairs your exempt property. Meanwhile, Judgments can't attach to homestead property, nor can they attach to Tenancy by the Entireties UNLESS the debt is owed by both husband and wife. So basically you have 3 different complicated ways to get rid of a judgment lien that can't be enforced under most cases anyway.

[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.

[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.

[df04527]

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

[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.

[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.