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ThanksFico
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Registered: ‎05-11-2011
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Old Judgements that should have been included from bankruptcy

I filed bankruptcy almost 7 years ago.  I have 3 judgements that are still on my credit report and my title company is saying that they will have to be paid before I can refinance.

 

I have the certified letters saying that they were included in the bankruptcy, but they say that I need a release of judgement for them to be removed.

 

Do I have to pay them even though they were included in my bankruptcy?

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ScoreBooster
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Re: Old Judgements that should have been included from bankruptcy

No, you don't have to pay them. You have to have the judgments vacated by filing a motion with the court where they were entered against you.

 

You have to check your State Law. Florida has a specific regulation dealing with judgments included in BK - your State might have somrthing similar.

 

Here's the Floridian procedure:

 

http://law.justia.com/codes/florida/2010/TitleVI/chapter55/55_145.html

 

BTW, when were these judgments entered against you? If your BK is almost 7 years old and they were included, shouldn't they drop off soon? As far as I know, they only stay on your report for 7 years.

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O6
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Registered: ‎10-13-2009
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Re: Old Judgements that should have been included from bankruptcy

 


ScoreBooster wrote:

No, you don't have to pay them. You have to have the judgments vacated by filing a motion with the court where they were entered against you.

 

You have to check your State Law. Florida has a specific regulation dealing with judgments included in BK - your State might have somrthing similar.

 

Here's the Floridian procedure:

 

http://law.justia.com/codes/florida/2010/TitleVI/chapter55/55_145.html

 

BTW, when were these judgments entered against you? If your BK is almost 7 years old and they were included, shouldn't they drop off soon? As far as I know, they only stay on your report for 7 years.


 

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.

 

In any event, judgments included in bamkruptcy never have to be paid and no mortgage underwriter should -- or even can -- insist that they be paid.  I would think the problem is that the judgments appearing on your credit report do not indicated they were discharged in bankruptcy.

IAALBNYL
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ThanksFico
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Registered: ‎05-11-2011
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Re: Old Judgements that should have been included from bankruptcy

Wow, this is very valuable information.  I guess I should have posted that I am from Denver - I will look at the link that you gave and see if it can guide me to Colorado.  My discharge date was 11.21.05.

 

I really appreciate your input!

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ScoreBooster
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Re: Old Judgements that should have been included from bankruptcy

[ Edited ]

O6 wrote:

 


ScoreBooster wrote:

No, you don't have to pay them. You have to have the judgments vacated by filing a motion with the court where they were entered against you.

 

You have to check your State Law. Florida has a specific regulation dealing with judgments included in BK - your State might have somrthing similar.

 

Here's the Floridian procedure:

 

http://law.justia.com/codes/florida/2010/TitleVI/chapter55/55_145.html

 

BTW, when were these judgments entered against you? If your BK is almost 7 years old and they were included, shouldn't they drop off soon? As far as I know, they only stay on your report for 7 years.


 

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.

 


That is true. However, when it comes to credit-reporting, the question should be if there is a legal difference between a cancelled and a vacated judgment. IMO, there isn't. That's why I recommended this legal step and the resulting granted petition for canellation as proof for the credit-bureaus to have the judgment removed from the public records. I have my doubts that employees at the CRAs know the fact that the cancelled judgment will be treated as "satisfied" and use that as a reason to keep the judgment on file since satisfied judgments aren't removed from your records. After all, they are no attorneys.

 

If the credit-bureau doesn't accept the granted petition for canellation and discharge to remove the judment from the public records, you can still go ahead and file a motion to vacate said judgment based on the fact that it is now legally satisfied and discharged.

 

So in the end, you have the legal tools (at least in Florida) to have any judgment that was IIB vacated. You need the previously mentioned petition to cancel and discharge the judgment and if the credit bureau is still not happy, you file a motion to vacate the judgment based on the fact that it is discharged and has a legal status of "satisfied" once your initial petition has been granted. The legal grounds for a motion to vacate such judgment in Florida are:

 

Rule 1.540 (b) (5)

 

http://www.doh.state.fl.us/ig/ADR/General/FLorida%20Rules%20for%20Civil%20Procedures.pdf

 

On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative froma final judgment, decree, order, or proceeding for the following reasons: ...(5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgmentor decree upon which it is based has been reversedor otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application.

 

 

 

 

 

 

Senior Contributor
O6
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Re: Old Judgements that should have been included from bankruptcy


ScoreBooster wrote:

O6 wrote:

 


ScoreBooster wrote:

No, you don't have to pay them. You have to have the judgments vacated by filing a motion with the court where they were entered against you.

 

You have to check your State Law. Florida has a specific regulation dealing with judgments included in BK - your State might have somrthing similar.

 

Here's the Floridian procedure:

 

http://law.justia.com/codes/florida/2010/TitleVI/chapter55/55_145.html

 

BTW, when were these judgments entered against you? If your BK is almost 7 years old and they were included, shouldn't they drop off soon? As far as I know, they only stay on your report for 7 years.


 

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.

 


That is true. However, when it comes to credit-reporting, the question should be if there is a legal difference between a cancelled and a vacated judgment. IMO, there isn't. That's why I recommended this legal step and the resulting granted petition for canellation as proof for the credit-bureaus to have the judgment removed from the public records. I have my doubts that employees at the CRAs know the fact that the cancelled judgment will be treated as "satisfied" and use that as a reason to keep the judgment on file since satisfied judgments aren't removed from your records. After all, they are no attorneys.

 

If the credit-bureau doesn't accept the granted petition for canellation and discharge to remove the judment from the public records, you can still go ahead and file a motion to vacate said judgment based on the fact that it is now legally satisfied and discharged.

 

So in the end, you have the legal tools (at least in Florida) to have any judgment that was IIB vacated. You need the previously mentioned petition to cancel and discharge the judgment and if the credit bureau is still not happy, you file a motion to vacate the judgment based on the fact that it is discharged and has a legal status of "satisfied" once your initial petition has been granted. The legal grounds for a motion to vacate such judgment in Florida are:

 

Rule 1.540 (b) (5)

 

http://www.doh.state.fl.us/ig/ADR/General/FLorida%20Rules%20for%20Civil%20Procedures.pdf

 

On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative froma final judgment, decree, order, or proceeding for the following reasons: ...(5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgmentor decree upon which it is based has been reversedor otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application.

 



While you may be able to fool certain CRA employees into believing they need to delete a public record from one's credit file, the fact is that Florida statute simply does not support that action.

 

I know this is a common mistake that many make, but there is a significant difference between Florida Statutes Civil Practice & Procedure and Florida Rules for Civil Procedure specifically in that the former take control over the latter. 

 

Florida statutes are crystal clear regarding judgments discharged in bankruptcy in 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."  In Florida, as with the vast majority of other states, a judgment included in bankruptcy is not vacated and can continue to report for the full duration of the CRTP.

 

There are no legal tools to have a satisfied judgment vacated in Florida.  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.  Judgments that are not vacated are, obviously, not and accordingly remain as evidence of legal liability for a debt at one particular point in time.

 

Now, if you can convince a judge in Florida to do something he is under no obligation to do and vacate the judgment, fantastic.  But the law in no way requires he do so in Florida or in the vast majority of other states.

 

 

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

[ Edited ]

All I can say is that the mentioned rule I previously posted is successfully used to vacate judgments.

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ScoreBooster
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Re: Old Judgements that should have been included from bankruptcy


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.


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

[ Edited ]

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.

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:

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? 

 

I do understand your confusion over the legal terms relief and vacate.  It is a common mistake that many laypeople make.  While relief may involve vacating a judgment, the terms are not synonymous other than by chance. 

 

The link to US Legal is nice.  You seemed to have missed the part where they state that they are not lawyers and that "USLEGAL, INC. AND ITS PARTNERS AND AFFILIATES DO NOT ASSUME ANY LEGAL LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY MATERIAL ON THE SITES."  It's particularly cute how they take it upon themselves to substitute words that do not appear in the Rules such as substitution of vacate for relief.  And terming the Rules as come type of Florida as yet non-existent Civil Procedure Code.  Hopefully US Legal will be kind enough to inform the Florida Senate and the Florida Judicial Commission that they (the Senate & Commission) are in error. 

 

Actually, the FL Rule is strikingly similar to not only the US Rule but also those of MA and many other states.  Unfortunately, there are no court cases that I have seen which reinforce the rule as the type of mechanism that you seem to think it is.  I guess people in uncomfortable positions such as having a public record impact negatively upon their credit score would be ideal candidates for grasping at straws.  Imagine, throughout the entire US every paid judgment must be vacated!  That sometimes you find a judge that just doesn't feel like delivering bad news and ultimately vacates your judgment doesn't mean that all satisfied judgments must be vacated and magically disappear from CRA files. 

 

 

 

* I'll not go into the definition of equity at present because I think that would be further confusing for you.

IAALBNYL

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