Sample Letter of Motion to Set Aside Final Judgement?

[Ynot]

We're about to submit a Motion to Set Aside Final Judgement to the court that made a decision in our case. Are there any sample letters available to help us better prepare.

Just for some background, we had a property in Florida that we included in our Ch.7. At the time it was not yet foreclosed on. The reason we included it was that other properties that we owned were in foreclosure. Either way the Ch.7 was discharged in Jan. 2010. The HOA starting legal actions to recoup there losses in Feb 2012. We never had a clue of the laws pertaining to HOA's and how aggressive they could be. We received a Final Judgement of Foreclosure 26 January 2013, which ordered us to pay the HOA dues and attorney fees. It also stated that the property will be up for auction on 25 March. 1 February 2013 we received an Amended Affidavit of Indebtedness.

With every notice we received we forwarded those to our BK attorney who informed us that we had nothing to worry about since it was included in the BK. He told us this until Sept 2012, when he said that he can no longer help us since he doesn't practice law in FL. He sent a final a letter to the HOA's atty's stating that it was included in the BK. Between Sept and now we've talked to a family member, who's also an attorney, and got the same thing, "nothing to worry about" speech. This until it snapped last week, when he realized it was in fact something serious and he said you'd better pay it and that he can't help.

So now we're basically in a mess that we have to get ourselves out of. We need to submit this motion asap. Any samples available? Advice on what to include?

Thanks for any help.

[justbroke]

I do not know what you're trying to accomplish. I don't know how you set aside a final judgment unless there was some error or it was void ab initio (from the beginning because of some technicality). Bad advice is usually not a reason to have a final judgment overturned.

As your family member attorney informed you, you have responsibility. Everything prior to 1/1/2010 would be discharged since you filed bankruptcy and received a discharge in January 2010. However, everything after is the responsibility of the titled owner, you. There is a small exception in Florida once a foreclosure occurs and the past due amounts have not been paid. That exception is that the bank is responsible for 12 months of "unpaid" HOA dues at foreclosure.

It looks like this has been 3 years. You are probably responsible for at least 2 of the years. The HOA attorneys love to tack on fees, and I'm sure the (legal) fees are not helping.

If this foreclosure is the HOA foreclosing, and not the bank, the HOA may recoup their fees from the foreclosure. I do not know whether you are talking about an HOA foreclosure or a Bank foreclosure.

[Ynot]

Thanks again for the reply.

We've never received any letters from the bank, only the HOA. At the end of the Final Judgement letter it basically states if the total sum is not paid that the home will go to auction on 25 March. This leads me to believe that this is a HOA foreclosure.

As far as mistakes that were made, the Annual Assessments that we are ordered to pay date back to 2009. It states "2009-2012". Since the other fees don't give a time frame we're not sure how much of those we're accurately liable for.

[justbroke]

Well, this is what they call an in rem action. It means against property. The foreclosure would be used to pay for the fees and dues that you owe. If they were coming after you "personally" (in personam) for 2009, you might have a case where those were discharged as to you personally. However, a bankruptcy does not mean that you do not owe anything. It just means that they can't collect through any process against you personally (in personam). Most mortgage companies and HOAs pursue past due fees/mortgage through the foreclosure process.

[Ynot]

I don't want to beat a dead horse, really. I just want to be clear in understanding this and yes I know you're not an attorney. I appreciate your answers. They really do help.

Can our bank accounts be frozen in this case?

Would you still move ahead with the Motion to Set Aside Final Judgement? Could that hurt anything?

After they collect from the auction will we be liable for any fees besides the attorney fees? If the association and attorney are paid could anyone else get involved, such as the new owner?

[justbroke]

This would work just as any foreclosure (HOA or bank-originated). They foreclose in order to recover fees. If the property does not sell for at least the amount of the fees, then a deficiency is created. If there is a deficiency, you'd still be responsible for that deficiency.

As for setting aside a final judgment of foreclosure that happened more than 2 weeks ago, I don't know if you have cause for that. You would need to consult an attorney. (I don't believe that you have cause but there could be "technical" mistakes made by the HOA which could have the judgment vacated.)

[Ynot]

Since this is not "in personam" at the present, can our bank accounts be frozen?

Is there a way we can find out what the property sells for?

Lastly, since the attorney's fees were included in final judgement and that same judgement mentions the auction should I believe that this could be covered also if the property does sell high enough? Make sense?

[justbroke]

If the property doesn't yield enough to payoff the balance of the HOA dues, they could come after you You would know, or should know, after the foreclosure if the balance you owe is $0. No matter what, they can't come after you for 2009 (and 2010, technically).

You probably just need to wait to see what happens.