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  1. #1
    david11 Guest

    how to vacate a judgement after bk?

    What is the name of your state? TEXAS

    I have listed a judgement in bk and the bk is discharged. I have filed a motion to vacate the judgement in small claims court and attached the bk papers but the judge rejected without givng any reason. What should I do next?
    I spoke with the plaintiff and they said they have recieved all the bk papers and they will not oppose to vacate. BK dishcarge will make all the listed judgement void.
  2. #2
    Ladynred is offline Senior Member
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    There HAS to be a reason why he denied your motion. If the debt that caused the judgment was discharged as you say, I don't know how he can legally dismiss the motion unless you made some kind of legal error in your motion or the filing of it. If he dismissed it without prejudice, that means you can file it again.

    Have you tried calling the court to see if they can give you a reason for the denial ?
  3. #3
    david11 Guest

    vacating judgement

    When I called them before she had said they have not done this in the past and it cannot be done. Then I just gave them a letter to vacate the judgement mentioning the statue and the clerk did not take any fees, she said she will give this to the judge and will get back with you. I called them again after 3 days, she said the judge has rejected it.

    Next what should I do?.
    What is the proper way in filing a motion?
  4. #4
    Ladynred is offline Senior Member
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    Cannot be done ?? Something's wrong there... that's for sure. This is done ALL the time.

    As for how you file your motion, I think a lot depends on local rules as to exactly what you have to do/say/provide etc. It could just be that your motion was improper somehow.

    Perhaps Halket can help here.. he's in TX, he should have a pretty good idea what is needed to get this done.

    Halket (or other Legal Eagle ) ??
  5. #5
    david11 Guest
    Also, is releasing a judgement same as vacating the judgment ?

    Is it just different terminology but means the same.

    I will file again mentioning other cases that was vacated before. Please let me know other case number so that I can refer that also in the motion.
    Last edited by david11; 10-30-2002 at 02:41 PM.
  6. #6
    JETX is offline Senior Member
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    Is this a small claim or civil court judgment?? The reason I ask is that a lot of small claim 'justices' have no idea of the legalities of their processes. Simply, if it is new to them, they have no idea how to do it.

    I have to ask though, why are you trying to set the judgment aside?? There is really little benefit in doing so. Since it was included in your bankruptcy discharge it is unenforcable. Just keep a copy of your records. In fact, you can send a letter to the court stating that the debt was discharged by bankruptcy and include the court name and case number. That way any 'later' review of the file will document the discharge.

    As for the credit file, have the judgment creditor send a notice to the CRA (Credit Reporting Agency) asking them to update their records to show "Judgment, discharged in bankruptcy".
  7. #7
    david11 Guest
    Thanks for the reply, Halket and ladynred.

    This is in small claims court, they said they have not done it before and I am doing this for 2 reasons.

    1)I would like to update the public record that this judgement is vacated. If I give my bk dishcarge paper to public record clerk's office they said will just attach the discharge paper to the judgement again and they will not mention it is vacated eventhoug it is void. This record stays there for ever. If I get the vacated court order, this order will be attached to the public record.

    2) for CRA, if I send the discharge paper, they will update the judgement as included in bk instead of deleting it, thereby 1 more negative item remains for 5 more years from the judgement date.
    If I send them the court order, they will simpy delete it, so 1 less negative item in the report increasing my score by 20 to 35 points.

    If I go through an attorney, he is charging 500 to vacate the judgement debt of 700( rather zero debt) so I am doing it by myself.

    Is releasing or vacating a judgement mean the same? What other options I have to get it vacated, any case reference.
    Thanks for your help
    Last edited by david11; 10-30-2002 at 04:20 PM.
  8. #8
    JETX is offline Senior Member
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    "1)I would like to update the public record that this judgement is vacated. If I give my bk dishcarge paper to public record clerk's office they said will just attach the discharge paper to the judgement again and they will not mention it is vacated eventhoug it is void. This record stays there for ever. If I get the vacated court order, this order will be attached to the public record."
    ** I think you are confused. The only 'public record' is the record held at the courthouse. And by filing your letter showing that the debt has been discharged, it will be a part of that record. You also mention 'public record clerk office'. There is no such 'animal'. Do you mean the county clerk?? If so, the county clerk has no record of the judgment, unless a judgment lien has been recorded.

    "2) for CRA, if I send the discharge paper, they will update the judgement as included in bk instead of deleting it, thereby 1 more negative item remains for 5 more years from the judgement date.
    If I send them the court order, they will simpy delete it, so 1 less negative item in the report increasing my score by 10 to 15 points."
    **The judgment will NOT be just deleted. The CRA's records are purely that... records of happnings. Once the judgment is noted in the file, it will remain for the full 7 years. The only thing that will be done is to have that record amended to show that is was discharged in bankruptcy. That is the truth, and as such, is the ONLY requirement on the CRA. Also, in accordance with the FCRA, you can send the CRA a copy of the bankrupcty discharge and ask that the investigate and correct the report. They will do this without any further action from the judgment creditor.

    "If I go through an attorney, he is charging 500 to vacate the judgement debt of 700( rather zero debt) so I am doing it by myself."
    **Okay, but with all due respect, you are confused about the process and benefits.

    "Is releasing or vacating a judgement mean the same? What other options I have to get it vacated, any case reference."
    **No, they are different. A 'vacated' judgment is voided and reversed as if it never happened. A 'released' (or more accurately 'satisfied') judgment means that the debtor has fulfilled his repayment obligation and the judgment has been paid.

    "Thanks for your help"
    **You're welcome.
  9. #9
    david11 Guest
    Originally posted by Halket
    ")I If so, the county clerk has no record of the judgment, unless a judgment lien has been recorded.


    Yes, the judgement is recorded in the county clerk office.

    **No, they are different. A 'vacated' judgment is voided and reversed as if it never happened. A 'released' (or more accurately 'satisfied') judgment means that the debtor has fulfilled his repayment obligation and the judgment has been paid.


    BK discharge will void the previous judgement, so should I ask for judgement be vacated in small claims court ?

    Somebody else got it vacated after bk in another state, Missouri. Will I may be able to do it texas.
    Last edited by david11; 10-30-2002 at 07:13 PM.
  10. #10
    JETX is offline Senior Member
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    David, your post seems to get more confusing....

    You said that the judgment "is recorded in the county clerk office." Texas doesn't RECORD judgments. Are you saying that the judgment creditor filed a judgment lien with the county clerk?? If so, then the only way to rid the lien is for the creditor to sign and file a release.

    It really doesn't matter what the friend in Missouri did.... the courts and processes are different for each state.
  11. #11
    david11 Guest
    Originally posted by Halket
    David, Are you saying that the judgment creditor filed a judgment lien with the county clerk?? If so, then the only way to rid the lien is for the creditor to sign and file a release.


    The creditor has filed a judgement lien with county clerk. He is asking to pay 300 fees to release the judgement. Can the court (small claims or appellate court) do something to release ( OR VACATE THE JUDGEMENT) the lien if I pay the court fees. Now the county clerks need notarised copy of the release, they dont care if it comes from the bk court or somebody else. Where else I can get this release form?
    Sorry, I dont know much about the court terminology, so I had to write back and forth to convey the right message.
    Last edited by david11; 10-31-2002 at 09:48 AM.
  12. #12
    JETX is offline Senior Member
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    Okay, I think we are finally getting down to the necessary details.

    Q1) "The creditor has filed a judgement lien with county clerk. He is asking to pay 300 fees to release the judgement. Can the court (small claims or appellate court) do something to release ( OR VACATE THE JUDGEMENT) the lien if I pay the court fees."
    A1) You are asking about two separate things here. (1) The court should vacate the judgment if you show that the debt/judgment was discharged in the bankruptcy ruling. You might send the court a very nice letter again requesting that they vacate the judgment as ORDERED by the FEDERAL court. Point out that if they refuse, you will have no recourse but to notify the FEDERAL court of their refusal and to let the FEDERAL court handle their confusion. (2) Neither court will interevene into the lien without additional legal work. I would suggest that you send the judgment creditor a very nice letter.... telling him that the lien is no longer valid since the debt has been discharged. In fact, be sure to point out that his refusal to remove the (nor voided) lein makes HIM liable for up to $10,000 in damages (per Texas Civ Pract & Rem Code, Chapter 12. A copy of this can be found at: [url]http://www.capitol.state.tx.us/statutes/ci/ci0001200.html#ci002.12.002/[/url]
    Further, his refusal to release this lien is specifically covered under Texas Property Code:
    " 52.025. Effect on Lien of Discharge of Debt in Bankruptcy
    (a) A judgment lien is not affected by the order of discharge and cancellation and may be enforced, if the lien is against real property owned by the bankrupt or debtor before the debtor was adjudged bankrupt or a petition for debtor relief was filed under federal bankruptcy law, and:
    (1) the debt or obligation evidenced by the judgment is not discharged in bankruptcy; or
    (2) the property is nonexempt and is abandoned during the course of the proceeding.
    (b) Except as provided by Subsection (a), the judgment is of no force or validity and may not be a lien on real property acquired by the bankrupt or debtor after the discharge in bankruptcy."
  13. #13
    david11 Guest
    I recieved a letter from the court today saying " even though this judgement is now void, this court does not have the authority to alter the verdict after xxxxxx period (xxxxxx = 6 letter word, I cant read his handwriting)

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