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Senior Contributor
O6
Posts: 3,626
Registered: ‎10-13-2009
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Re: Old Judgements that should have been included from bankruptcy

 


ScoreBooster wrote:

O6 wrote:

Again, you are misunderstanding Florida Statute and, more specifically, the Rules.  The word "relieve" encompasses several distinct and often separate actions that have a different legal function yet may result in the same practical outcome.  An individual is relieved of a judgment when it is satisfied.  An individual is also relieved of a judgment when it is vacated.  In both cases the judgment may no longer be enforced, yet there are important differences between a satisfied judgment and a vacated judgment, one of which is that for all practical purposes a vacated judgment is void from its inception. 


The problem is that the scenario I put in bold doesn't apply under 1.540 because the judgment has to be satisfied in the first place before 1.540(b) (5) can apply.

 

We already determined that the petition to cancel and discharge a judgment after BK turns it into a satisfied judgment. So far, so good.

 

Maybe you can explain why anybody would file a motion under 1.540(b)(5) to "seek" relief of a satisfied judgment? Since a satisfied judgment is, well, satisfied, what may a court grant you under 1.540(b)(5) other than vacating the judgment? "Relief" of the satisfaction?

 

The only "relief" a debtor could obtain from an already satisfied judgment is to have said judgment vacated. Anything else makes no sense at all and the internet is full of case law were 1.540 is used to vacate judgments. There are many reasons and the satisfaction of a judgment is just one of them.


Your case law is imaginary.  Google failed you.
Can you explain how a rule made by a non-legislative body can render a statute enacted into law through the legislative process invalid?  Of course you cannot.
Relief can include the filing of a legal satisfaction of judgment when evidence of satisfaction exists, yet the judgment creditor never executed a Satisfaction of Judgment.  Relief can include a determination that the judgment is satisfied when there is a dispute over whether or not it actually is.  If relief were the same as vacate, then the rules would not say relief.
Again, look at the US Rules and those of Mass. and many, many other states and you will see that those rules based on a "model" format include pretty much the same language.  You're saying that anybody with a federal judgment or virtually any state judgment can simply pay up and have the judgment nuked from their credit report.  Talk about grasping at straws.

 

IAALBNYL
Frequent Contributor
ScoreBooster
Posts: 466
Registered: ‎05-30-2008
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Re: Old Judgements that should have been included from bankruptcy


O6 wrote:

 


ScoreBooster wrote:

O6 wrote:

There are no legal tools to have a satisfied judgment vacated in Florida.

 

 


Well, seems that uslegal.com has a different POV:

 

http://definitions.uslegal.com/m/motion-to-vacate-judgment/

 

In Florida as per the Civil Procedure Code a party may file motion to vacate judgment or any other proceeding for the following reasons (.....)

 

judgment or decree has been satisfied, released, or discharged (...)

 

Here's another source:

 

http://floridadebtor.com/index.php?topic=264.0;wap2

 

(..) and rule 1.540(b) lists five categories of substantive grounds that can be used to support and order vacating a judgment.

 

Just google "Florida vacating judgment 1.540" and you will see a bunch of cases.



 

I'm sorry, but my law school never offered the Google Makes Caselaw course.  In any event, you conveniently forgot that rule 1.540(b)  encompasses a variety of grounds for relief and that the vast majority of Google hits on that search string reference grounds other than prior satisfaction of judgment.  If there one or another to be found after shifting through pages and pages of results, it means that an isolated judge was inclined to be generous or *equitable that particular day because they are in no way under law obligated to vacate satisfied judgments.  Again, the Florida statutes are clear and rules are subordinate.  Perhaps you missed that class? 

 

 

 



This is very funny. The bold part actually makes my point. You are stating that the majority of cases where a judgment was vacated under 1.540(b) wasn't about satisfaction of judgment. Surprise - that is not relevant at all. What is relevant, however, is that 1.540(b) - according to your own statement - has INDEED been used as a legal tool to vacate a judgment. That is exactly the opposite to your prior statement because it is a FACT that 1.540(b)(5) simply adresses SATISFIED judgments in particular. I didn't make it up - it's just the part of the rule you're trying to sweep under the carpet. You are picking and chosing what under the same specific rule can be used to vacate and what not. Fortunately, our legal system doesn't work that way.

 

You just scored an own goal because you can't make a serious claim that ONLY CERTAIN parts of 1.540(b) apply as legal ground to vacate but others - in this case (5), a satisfied judgment, doesn't.

 

If 1.540(b) is an established rule to vacate, the ENTIRE rule applies and that includes a satisfied judgment. You can't claim that 1.540(Bb) (1), (2), (3) and (4) are legitimate reason to vacate but (5) isn't...

 

And FYI, the case law from google are REAL cases - even more realistic than law school..

 

The reason why not more judgments are vacated after they are satisfied is simple and of a practical matter: The majority of debtors doesn't care about a judgment once it's IIB and their BK discharged. Same applies to satisfied judgments. Having a judgment vacated requires the filing of a motion - something many people don't want to do on their own and want to avoid. Judgment IIB or judgment satisfied - makes no difference to the average Joe. As long as Joe's wages aren't in jeopardy, why should Joe file anything or even care?

 

 

 

Senior Contributor
O6
Posts: 3,626
Registered: ‎10-13-2009
0

Re: Old Judgements that should have been included from bankruptcy


ScoreBooster wrote:

O6 wrote:

 


ScoreBooster wrote:

O6 wrote:

There are no legal tools to have a satisfied judgment vacated in Florida.

 

 


Well, seems that uslegal.com has a different POV:

 

http://definitions.uslegal.com/m/motion-to-vacate-judgment/

 

In Florida as per the Civil Procedure Code a party may file motion to vacate judgment or any other proceeding for the following reasons (.....)

 

judgment or decree has been satisfied, released, or discharged (...)

 

Here's another source:

 

http://floridadebtor.com/index.php?topic=264.0;wap2

 

(..) and rule 1.540(b) lists five categories of substantive grounds that can be used to support and order vacating a judgment.

 

Just google "Florida vacating judgment 1.540" and you will see a bunch of cases.



 

I'm sorry, but my law school never offered the Google Makes Caselaw course.  In any event, you conveniently forgot that rule 1.540(b)  encompasses a variety of grounds for relief and that the vast majority of Google hits on that search string reference grounds other than prior satisfaction of judgment.  If there one or another to be found after shifting through pages and pages of results, it means that an isolated judge was inclined to be generous or *equitable that particular day because they are in no way under law obligated to vacate satisfied judgments.  Again, the Florida statutes are clear and rules are subordinate.  Perhaps you missed that class? 

 

 

 



This is very funny. The bold part actually makes my point. You are stating that the majority of cases where a judgment was vacated under 1.540(b) wasn't about satisfaction of judgment. Surprise - that is not relevant at all. What is relevant, however, is that 1.540(b) - according to your own statement - has INDEED been used as a legal tool to vacate a judgment. That is exactly the opposite to your prior statement because it is a FACT that 1.540(b)(5) simply adresses SATISFIED judgments in particular. I didn't make it up - it's just the part of the rule you're trying to sweep under the carpet. You are picking and chosing what under the same specific rule can be used to vacate and what not. Fortunately, our legal system doesn't work that way.

 

You just scored an own goal because you can't make a serious claim that ONLY CERTAIN parts of 1.540(b) apply as legal ground to vacate but others - in this case (5), a satisfied judgment, doesn't.

 

If 1.540(b) is an established rule to vacate, the ENTIRE rule applies and that includes a satisfied judgment. You can't claim that 1.540(Bb) (1), (2), (3) and (4) are legitimate reason to vacate but (5) isn't...

 

And FYI, the case law from google are REAL cases - even more realistic than law school..

 

The reason why not more judgments are vacated after they are satisfied is simple and of a practical matter: The majority of debtors doesn't care about a judgment once it's IIB and their BK discharged. Same applies to satisfied judgments. Having a judgment vacated requires the filing of a motion - something many people don't want to do on their own and want to avoid. Judgment IIB or judgment satisfied - makes no difference to the average Joe. As long as Joe's wages aren't in jeopardy, why should Joe file anything or even care?

 

 

 


You can grasp at all the straws you'd like, but you are still wrong.

 

I never said that 1.540(b) has been used to vacate a satisfied judgment.  I simply did not feel to scroll through more than the first dozen pages of your Google hits without still finding one single relevant example of where you were right in order to make the statement that there were no examples at all.  Even if there were one or two, that does not mean the law supports your wild theories.  Show case law which specifically holds that a satisfied judgment in Florida must be vacated.  You cannot. 

 

Again you choose to ignore the simple fact that the rule provides for relief and relief takes into account a broad range of judicial actions.  Again, as a layperson, you cannot obviously be expected to understand the finer details, but there are more forms of relief than simply vacating a judgment.  As the Florida statutes -- which you mistakenly quoted as reinforcing your position until pointed out that you misread them -- reinforce, cancellation and discharge are but two other forms of relief and, as  again, the statutes specifically state that is not the same as vacating a judgment.  And before you pull the claim that a cancelled judgment is satisfied, they are not the same thing.

 

Actually, the reason why all judgment debtors with satisfied judgments doen't have their judgments vacated is because they cannot.  There are some states where it is possible and even some cities within states that allow it as a matter of routine, but Florida is not one of them.  But maybe if you run for the state senate and change the law or start a grassroots judgment-birther organization things will change. 

 

 

 

 

IAALBNYL
Frequent Contributor
ScoreBooster
Posts: 466
Registered: ‎05-30-2008
0

Re: Old Judgements that should have been included from bankruptcy

[ Edited ]

O6 wrote:

You can grasp at all the straws you'd like, but you are still wrong.

 

I never said that 1.540(b) has been used to vacate a satisfied judgment. However, you stated that 1.540(b) was used to vacate judgments. I was curious to know why you think that specific circumstances under the same rule provide "relief" in form of a vacated judgment but others - like the satisfaction of a judgment - don't. Where does 1.540(b) define what form of "relief" will and won't be granted under (1), (2) etc...? I simply did not feel to scroll through more than the first dozen pages of your Google hits without still finding one single relevant example of where you were right in order to make the statement that there were no examples at all.  Even if there were one or two, that does not mean the law supports your wild theories.  Show case law which specifically holds that a satisfied judgment in Florida must be vacated.  "MUST"? You should know better that there is no "MUST" under 1.540. It clearly says "MAY". There is hardly a thing a judge "MUST" do... You cannot. Of course, I can't - and I needn't because I never made such a claim.

 

Again you choose to ignore the simple fact that the rule provides for relief and relief takes into account a broad range of judicial actions.  Again, as a layperson, you cannot obviously be expected to understand the finer details, but there are more forms of relief than simply vacating a judgment. Of course, there are more forms than vacating - but vacating is one of them as well.  As the Florida statutes -- which you mistakenly quoted as reinforcing your position until pointed out that you misread them -- reinforce, cancellation and discharge are but two other forms of relief and, as  again, the statutes specifically state that is not the same as vacating a judgment.  That "claim" was never made. Certainly a discharge or cancellation are forms of a relief - but that's not the point. The point is that the judgments have to reach this certain legal status (discharged, satisfied) before you can file for relief under 1.540(b) in the first place. The satisfaction is NOT the RESULT of the motion to vacate under 1.540(b)(5), it is the legal GROUND to file said motion in the first place. 1.540(b)(5) doesn't say that a discharged or satisfied judgment are the same - it only states that judgments in this legal status can be granted relief under 1.540(b). And before you pull the claim that a cancelled judgment is satisfied, they are not the same thing. What did I "misread"? I clearly advised the OP that a judgment IIB in Florida can be turned into the legal status of "satisfied" by filing a certain petition one year after the debtor's discharge. I then advised the OP that - in case the CRA will not remove the public record - the OP could file a motion to vacate the now satisfied judgment. This is the most effective method of getting a judgment off the OCs credit-report and frankly, the ONLY method that comes to my mind.

 

We had the discussion before that my advice has never a 100% success-rate - but something like that doesn't exist in the legal world in the first place - especially not with rules that involve the term "may"..

 

Actually, the reason why all judgment debtors with satisfied judgments doen't have their judgments vacated is because they cannot.  If you would have stated that they "cannot satisfy them", I would agree. There are some states where it is possible and even some cities within states that allow it as a matter of routine, but Florida is not one of themWhy don't you provide links that support your case? I already delivered two sources. Show me legal proof that judges in Florida MUSTN'T vacate satisfied judgments based on 1.540(b)(5) since you made the claim that they "CAN NOT". But maybe if you run for the state senate and change the law or start a grassroots judgment-birther organization things will change. I don't think that's necessary. 1.540(b)(5) gives enough power to a judge to grant said motion. If a judge doesn't want to grant it...bad luck.

 

 


 

Moderator
MarineVietVet
Posts: 14,974
Registered: ‎07-14-2009
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Re: Old Judgements that should have been included from bankruptcy

You've both done a good job of presenting your dueling statutes.

 

But before it gets out of hand (and it's heading that way) how about giving it a rest for the night?

 

And what about the OP? They seem to have been forgotten in all this.

 

 

 

 

Frequent Contributor
ScoreBooster
Posts: 466
Registered: ‎05-30-2008
0

Re: Old Judgements that should have been included from bankruptcy


MarineVietvet wrote:

 

And what about the OP? They seem to have been forgotten in all this.

 

 



:smileywink:

 

You think so? I believe the discussion was spot-on..

 

But Marine, you are right. I made my point and provided my info. I don't have more to offer on that topic.

 

In case the OP reads this and has no headache: Search the myFico forum for "judgment vacated". Some success-stories can be found..:smileywink:

Frequent Contributor
ScoreBooster
Posts: 466
Registered: ‎05-30-2008
0

Re: Old Judgements that should have been included from bankruptcy

[ Edited ]

O6 wrote:

 

In the vast majority of states -- including Florida -- judgments included in bakruptcy are not vacated.  They are simply discharged or cancelled (i.e. "satisfied).  There is a big difference between a satisfied and a vacated judgment.

 

 

True - but there is no difference between a cancelled and a vacated judgment - and that's what it's all about in regards to credit reporting.

 

Sooo, almost 2 1/2 years later, I thought I provide an update about how judgments included in a BK CH7 are handled in Florida to have them cancelled (aka. vacated) in order to have them removed from the credit reports:

 

First of all, you have to wait one year post discharge. After that, you have to obtain a certified copy of your discharge order and file that along with a Petition for an Order to Cancel and Discharge Judgment. Once all parties involved were served a copy of your petition, you have to ask the court to set up a hearing. After that, you mail out a Notice Of Hearing to the other parties and file said notice with the court. Before you attend the hearing, you prepare an Order to Cancel and Discharge Final Judgment and if you followed all the rules, the judge is likely to sign your Order right on the spot.

 

That's what I accomplished today. Here's the law I applied:

 

Florida Statutes 55.145

 

I hope this helps anybody in Florida.:smileyvery-happy:


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