Motion to Vacate Judgment

[movinonnow]

Would someone post a sample motion to vacate a judgment after a bk discharge?

[tobee43]

they vary state by state so it's difficult to give you an example. it is rather important that your follow your states guidelines. also you may want to contact the court clerk in bk court and they should be able to assist you as well.

you can check out an example here:

http://www.docstoc.com/docs/36827786/Sample-Motion-to-Vacate-Judgment-under-CCP-473

[malf1204]

You must have a valid reason why the motion should be vacated (ie. you were not properly served, you were in the hospital, etc) and you must indicate what kind of defense you will be using. That is the way it is in my state.

[tobee43]

once your bankruptcy is discharged and closed you can file a motion to vacate on any suit that was included in the petition, and discharged, provided it's not the IRS or some type of secured debt. you do not need any reason. there is no defense required, in any state.

it's not a motion that should be vacated, it's the judgment which needs to be removed. so you file a "motion" to vacate the judgment and or lien.

[IBroke]

once your bankruptcy is discharged and closed you can file a motion to vacate on any suit that was included in the petition, and discharged, provided it's not the IRS or some type of secured debt.

Not in Florida. Before you can file a motion, you have to wait an entire year after discharge.

http://law.justia.com/codes/florida/...55/55_145.html

[tobee43]

Not in Florida. Before you can file a motion, you have to wait an entire year after discharge.

http://law.justia.com/codes/florida/...55/55_145.html

you do not have to wait a year, we waited 2 weeks. and filed two motions.

quoting from the site you got this information from:

Disclaimer: These codes may not be the most recent version. Florida may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.

and they are not up to date, promise. or certainly not in our case, i assure you

[IBroke]

you do not have to wait a year, we waited 2 weeks. and filed two motions.

quoting from the site you got the information from:

Disclaimer: These codes may not be the most recent version. Florida may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.

and they are not up to date, promise.

If you were in Florida, you were very lucky then. I was discharged a year ago and filed my motion to vacate last March. My motion was DENIED because I wasn't discharged for at least a year. 55.145 was the law the other party used to have my motion denied and was exactly what the judge gave to me as a copy. She told me to follow the instructions and told me to file again this year. In order to do that, she denied my claim without prejudice.

I guess your judge wasn't informed or the other party simply didn't care.

And yes, what I posted IS current:

http://www.flsenate.gov/Laws/Statutes/2011/55.145

[tobee43]

If you were in Florida, you were very lucky then. I was discharged a year ago and filed my motion to vacate last March. My motion was DENIED because I wasn't discharged for at least a year. 55.145 was the law the other party used to have my motion denied and was exactly what the judge gave to me as a copy. She told me to follow the instructions and told me to file again this year. In order to do that, she denied my claim without prejudice.

I guess your judge wasn't informed or the other party simply didn't care.

you are most likely correct. however, we had no problem the judge granted both of them, and also, they had to go to nj since that was where the judgements were filed although we filed our bk in florida, it was still a florida bk, not federal. interesting.

have you re-filed the motion since a year has now past?

LOL!! i just love an uninformed judge!

[IBroke]

you are most likely correct. however, we had no problem the judge granted both of them, and also, they had to go to nj since that was where the judgements were filed although we filed our bk in florida, it was still a florida bk, not federal. interesting.

have you re-filed the motion since a year has now past?

LOL!! i just love an uninformed judge!

Hmm, since the judgments were filed in NJ, the scenario could be totally different.
I'm currently thinking of re-filing my motion. Probably during the next couple of weeks. 55.145 here in Florida is a total mess. I know that nobody can collect on the discharged judgment - but I want it off my credit-report. A user with some legal background on myfico.com made the claim that 55.145 can't be used to vacate judgments in the first place. Actually, he said that there is no legal way in Florida to vacate judgments that were discharged through BK. He said in 55.145, it says that the granted petition to cancel and discharge would have the same effect as the satisfaction of judgment - and therefore, the judgment would be considered "satisfied" and not "cancelled" or "vacated" (cancelled/vacated should actually be the same).

I argued that this is nonsense because if you file a petition to have a judgment cancelled and said petition is granted, the judgment would be canceled because that was what the petion and order is going to read. And that a satisfied and cancelled judgment should have the same effect is not a surprise.

What's your take on that?

[tobee43]

Hmm, since the judgments were filed in NJ, the scenario could be totally different.
I'm currently thinking of re-filing my motion. Probably during the next couple of weeks. 55.145 here in Florida is a total mess. I know that nobody can collect on the discharged judgment - but I want it off my credit-report. A user with some legal background on myfico.com made the claim that 55.145 can't be used to vacate judgments in the first place. Actually, he said that there is no legal way in Florida to vacate judgments that were discharged through BK. He said in 55.145, it says that the granted petition to cancel and discharge would have the same effect as the satisfaction of judgment - and therefore, the judgment would be considered "satisfied" and not "canceled" or "vacated" (canceled/vacated should actually be the same).

I argued that this is nonsense because if you file a petition to have a judgment canceled and said petition is granted, the judgment would be canceled because that was what the petition and order is going to read. And that a satisfied and canceled judgment should have the same effect is not a surprise.

What's your take on that?

no, not really since, that had nothing to do with it. i filed in florida under the florida bk statues. the fact that the judgment, like many, are generated from another state has nothing to do with it.

i would really talk to another atty, since whom ever is telling you there is no legal way in florida to vacate a judgment once it has been discharged is simple untrue. fact is, as i have stated before, it really doesn't matter much about what's on your credit report at the moment, it's what can turn up in 10 years down the road that counts...and it has a likelihood of showing up when you least expect it.

i would most definitely re-file the motion, you have a right to have it vacated! geesh, what is the deal with these people??

[IBroke]

I would most definitely re-file the motion, you have a right to have it vacated! geesh, what is the deal with these people??

From a BK perspective, you are absolutely correct that it doesn't matter where you filed for BK. And since federal law is supposed to superceed State Law, your BK-discharge should be sufficient to have the judgment vacated. This was the argument I made in front of the judge. But why should a Florida judge care about Federal Law if Florida has a specific regulation for this scenario? And that's what I mean by saying that NJ could be different. I know for sure that other States have matching State-Law just like Florida's 55.145 - but not every state requires this stupid 1 year wait.

I'm certainly going to re-file. I just wanted to make sure that I knew the consequences before I went through with it. Vacating - or in other words, cancelling - is exactly what I want to accomplish and that should prevent it from showing up again on my credit-report. Anyway, the way judgments after discharge are handled by the CRAs is totally confusing:

Experian deleted the judgment right after discharge, Equifax is reporting it as "satisfied" and TU is reporting it as "Judgment in Bankruptcy". Very inconsistent.

I simply can't believe that a granted motion to discharge and cancel a judgment would turn the judgment itself into a "satisfied" judgment. The way I see it is that once my motion is granted, I will receive the according order from the judge that the motion to cancel and discharge was granted. This motion should be enough proof for the CRAs to take it off my file.

[mountanddo]

Not in Florida. Before you can file a motion, you have to wait an entire year after discharge.

http://law.justia.com/codes/florida/...55/55_145.html

So can they enforce the judgement then during that year?

[IBroke]

So can they enforce the judgement then during that year?

No, they can't. You are protected from any form of enforcement from the moment you filed for BK. This protection is automatic - just like it is for any debt that's part of your petition.

The motion this law is all about is focused on cancelling (vacating) the judgment which is necessary to get it off the credit report. The average Joe usually doesn't care what happens to a judgement post-BK because it can't be enforced any more. Some people, however (including me), simply want to get rid of it completely and get it off the credit-report.

[tobee43]

our purpose to vacate the judgment was not to get them off the credit reports, it was to remove them from the recording system of the courts. actually, they never showed up on our credit reports. i was more concerned about a title seach at a later date, although, i'm not certain how it would have looked since we surrendered the property the liens were place against.

we were thinking more on the lines, years down the road if we wanted to purchase another house (which we did) it would should up when they did our searches via the title company and it could present some type of problem. i don't even know if that could have happened, i just wanted them gone. i still don't know if nj would not respect the state that one filed their bk in. that's a bit fuzzy isn't it.

[IBroke]

Soooo, my attorney at justanswer took care of my question:

Me: I had an argument with a different person on a forum who claims to be a lawyer as well, and he made the claim that there is no legal tool in the State of Florida to vacate a judgment after Bankruptcy - based on what I just posted. He claims that judgments will be considered "satisfied" and NOT cancelled/vacated after the court approves the 55.145 petition. I made the argument that it only makes sense that a cancelled judgment should have the same effect as a satisfied one because in both cases, the party who filed has no claim against you any more.

However, it is MY opinion that the correct LEGAL status of this judgment should be "cancelled" because my PETITION was to have the judgment cancelled and discharged - and not to have it "satisfied". So if the petition for cancellation is granted, it should be considered "cancelled" and not "satisfied", correct?

Lawyer: Yes, that is correct. Again, I do not know why one must go through this hurdle in the State of Florida when a Discharge has already been granted by the Bankruptcy Court wiping out the debt. I guess until your State legislature acts to change this law, you would have to live with it. It just does not make any sense.

Me: The next confusing thing in this stupid Florida law is the part that says the order of cancellation may be recorded as satisfaction of judgment. How is that supposed to work? Why would anybody record a satisfaction of a cancelled judgment? Or is the judgment after the application of 55.145 only "satisfied" and not "cancelled" after all?

Lawyer: The Florida Statutes specifically state that "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." So, it is really a Cancellation of Judgment and NOT a Satisfaction of Judgment eventhough it may be treated as such. If you are going to be filing the Petition to Cancel Judgment, you might as well go to the last step and record the Cancellation of Judgment.

Hopefully, I could provide some helpful info to other forum-members who are facing the same problem - especially in Florida. The internet doesn't provide any information about this topic. None at all.