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There’s a line in the classic movie, The Producers, when one character says to the other, I lieb you, baby. I lieb you. Now lieb me alone.
The speaker clearly wants the other person to vacate the premises immediately. Leave him alone with an empty space, so to speak.
That’s what it means to vacate a judgment – the entire thing vanishes in a puff of smoke, leaving no judgment behind. The lawsuit remains active, but the clock is turned back so that the judgment is erased.
There are two ways for a creditor to get a judgment against you. They are:
- A judge can make a ruling that the creditor has proven all aspects of a case against you; or
- A judge can make a ruling that a creditor is entitled to a judgment because you didn’t fight the lawsuit.
The first way is usually called a judgment on the merits and the second way is called a default judgment.
In both situations, it is possible to get the judgment wiped out as if it never happened.
The process of wiping out a judgment entirely is called vacating the judgment.
SEE ALSO:
- What Does A Judgment Mean?
- Here’s What It Means To Have A Judgment Filed Against You – And What You Can Do About It
- Credit Card Lawsuit – Why You Should Always Fight.
- Here Are Your Options When Served With A Collection Lawsuit
Two Ways To Vacate A Judgment
Just as there are two ways for a creditor to get a judgment against you, there are two ways to have the judgment vacated. They are:
- Appeal the judgment and have the appeals court render the original judgment void; or
- Ask the original court to vacate a default judgment so that you can fight the lawsuit.
Grounds For Vacating A Default Judgment In California
Under California Code of Civil Procedure Section 473(b), a judge can vacate a default judgment taken due to mistake, inadvertence, surprise, or excusable neglect so long as the request is made within 6 months of the date of the judgment.
If you didn’t respond to the lawsuit because you were never served, you can file a motion to set aside the default or default judgment and for leave to defend the action. You must serve and file the motion no later than the earlier of the following dates:
- two years after entry of a default judgment against you; or
- 180 days after service on you of a written notice that the default or default judgment has been entered.
If the court finds that your lack of actual notice in time to defend the action was not caused by your avoidance of service or inexcusable neglect, it may set aside the default or default judgment allow you to defend the action.
Vacating A Judgment And The Impact On Your Credit Report
Just because the judgment is vacated doesn’t mean that the lawsuit disappears. In fact, vacating the judgment means that the lawsuit is active once again.
The lawsuit will continue to show up on your credit report, though the judgment will not longer be reported to the credit reporting agencies.
If you win the lawsuit that will be reflected on your credit report. And if you lose, the new judgment will be reported.
Don’t Let It Get That Far
If you get lawsuit papers, either file an Answer or get to a lawyer like me who defends collection actions.
Waiting for a default judgment in the hopes that you can get it vacated isn’t a very good plan of attack. After all, the judge may deny your motion – and then you’ll be sitting with a judgment against you and nobody to blame but yourself.
A report issued by the Consumer Financial Protection Bureau (CFPB) found that a debt buyer dismissed 70% of its lawsuits when the consumer filed a written answer to the lawsuit.
As part of a debt collector examination, Supervision reviewed collection lawsuits initiated by the entity. Examiners found that in 70% of the cases, when the consumer filed an answer, the entity would dismiss the suit because it was unable to locate documentation to support its claims.
Junk debt buyers purchase nothing more than a list of names and amounts owed, but they do not receive any real proof of the debt. They receive no copy of the credit card contract, no record of the payments and charges to the account, no copy of the multiple amendments to the contract, no evidence of whether the contract is written or oral, and no explanation of of how the finance charges were calculated.
Despite the entity’s express or implied representations to consumers that it intended to establish that consumers owed a debt in the amount claimed in court filings, in numerous instances, the entity misled consumers because it demonstrably had no such intention.
Do we have consumer fraud issue here? Debt buyers are intentionally misleading consumers by filing lawsuits they have no intention of litigating since they lack meaningful proof of the debt.
What about the remaining 30% of cases not voluntarily dismissed? The CFPB report does not answer this question, but we may assume that the vast majority of those were settled before going to trial.
Although I do find that many junk debt lawsuits filed by Midland Funding, Cach LLC, Portfolio Recovery, Sherman Acquisitions and others will be dismissed when a written answer is filed with the Court, the more common experience is that the debt buyer will hit the consumer with lame discovery requests to lay the groundwork for a Summary Judgment motion. ("Please admit or deny that you owe the amount stated in the lawsuit." Hint, your reply should be Deny!) Failure to respond to such discovery gives the debt buyers the right to seek a judgment without any real proof of the debt.
The lesson here is that when you are sued by a debt buyer you should always file a written response to demand proof of the debt.
A report issued by the Consumer Financial Protection Bureau (CFPB) found that a debt buyer dismissed 70% of its lawsuits when the consumer filed a written answer to the lawsuit.
As part of a debt collector examination, Supervision reviewed collection lawsuits initiated by the entity. Examiners found that in 70% of the cases, when the consumer filed an answer, the entity would dismiss the suit because it was unable to locate documentation to support its claims.
Junk debt buyers purchase nothing more than a list of names and amounts owed, but they do not receive any real proof of the debt. They receive no copy of the credit card contract, no record of the payments and charges to the account, no copy of the multiple amendments to the contract, no evidence of whether the contract is written or oral, and no explanation of of how the finance charges were calculated.
Despite the entity’s express or implied representations to consumers that it intended to establish that consumers owed a debt in the amount claimed in court filings, in numerous instances, the entity misled consumers because it demonstrably had no such intention.
Do we have consumer fraud issue here? Debt buyers are intentionally misleading consumers by filing lawsuits they have no intention of litigating since they lack meaningful proof of the debt.
What about the remaining 30% of cases not voluntarily dismissed? The CFPB report does not answer this question, but we may assume that the vast majority of those were settled before going to trial.
Although I do find that many junk debt lawsuits filed by Midland Funding, Cach LLC, Portfolio Recovery, Sherman Acquisitions and others will be dismissed when a written answer is filed with the Court, the more common experience is that the debt buyer will hit the consumer with lame discovery requests to lay the groundwork for a Summary Judgment motion. (“Please admit or deny that you owe the amount stated in the lawsuit.” Hint, your reply should be Deny!) Failure to respond to such discovery gives the debt buyers the right to seek a judgment without any real proof of the debt.
The lesson here is that when you are sued by a debt buyer you should always file a written response to demand proof of the debt.
Our law firm will soon be expanding the scope of our practice to include representing Oregon and Washington debtors with respect to their student loan issues. Since most consumers in the pacific northwest have never even heard of student loan law, I thought I would take this opportunity to describe many of the services that we will be offering to Oregon and Washington consumers.
For Recent Graduates as well as Borrowers in Good Standing
- We will provide a detailed analysis of your student loan portfolio in order to determine your best options with respect to consolidation, income-sensitive repayment, loan forgiveness or cancellation
- We will help Oregon and Washington consumers complete the forms and applications for repayment plan selections and consolidations
- We will help resolve bureaucratic problems related to federal loans.
For Borrowers Falling Behind on Payments
- We will provide a detailed analysis of your student loan portfolio in order to help you pick the best options for reducing your monthly payments under federal law
- We will help you find the best repayment management and loan prioritization options
- We will help you complete the required paperwork for deferment, consolidation and forbearance arrangements.
- We will directly represent you in communications with both lenders or servicers
For Borrowers in Default or Collections
- We will help you find the best paths for getting your loans out of default and provide strategies for keeping them that way.
- We will directly represent you in communications with collectors so that you will be left alone
- We will protect you from harassing, abusive and unfair conduct by debt collectors and sue those collectors who violate the Fair Debt Collections Practices Act
- We will defend you in debt collections law suits
- We will negotiate settlements and repayment plans.
- We will help prevent tax refund intercepts and wage garnishment orders
- We will analyze loan cancellation options and assist with the cancellation/discharge process
- Where absolutely necessary, we will file petitions for relief under the bankruptcy code so that your monthly outlay to your creditors is substantially reduced.
Commencing July 12, 2014, I will be available to consult with Oregon or Washington consumer with student loan issues at any of our bankruptcy law offices in Tacoma, Vancouver, Seattle, Portland or Salem. If these locations are not convenient, please feel free to set a phone appointment on our website.
The original post is titled Oregon Student Loan Attorney , and it came from Portland Bankruptcy Attorney | Northwest Debt Relief .
Sometimes a dismissed Chapter 13 is all your need. Chuck and Inez came to see me today about Chapter 7 bankruptcy. I had put Inez in a Chapter 13 in December 2011 when their house was days away form foreclosure. The Chapter 13 was dismissed six weeks later. BUT, that short Chapter 13 had […]The post Dismissed Chapter 13 by Robert Weed appeared first on Robert Weed.
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Miami Bankruptcy Attorney Jordan E. Bublick, with offices at 1221 Brickell Ave., 9th Fl, Miami, Florida (free parking available in the building) offers a free initial consultation in which to review and evaluate your financial and legal situation and to review your options for bankruptcy under chapter 13 or chapter 7. Attorney Jordan Bublick has over 25 years of experience in filing chapter 13 and chapter 7 cases and limits his practice to chapter 13 and chapter 7 bankruptcy cases as well as mortgage modifications.
Chapter 13 is often being used at in the present times to stop foreclosure case so as to give a homeowner the opportunity the obtain a mortgage modification. As part of the chapter 13 plan, you are able to propose to avoid or discharge "underwater" second mortgages. Past due IRS taxes may be paid off over time or in some cases discharged..jpg "Bankruptcy Lawyer Free Initial Consultation")
1221 Brickell Ave, Miami, (Just South Downtown)
You are not required to bring documents to the initial consultation, but if you are able to bring some of the following it may be helpful: lawsuit papers, tax returns and paycheck stubs.
Jordan E. Bublick may be reached at (305) 891-4055 or at [email protected]. www.bublicklaw.com
Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankruptcy Cases and Mortgage Modifications (305) 891-4055
Miami Bankruptcy Attorney Jordan E. Bublick, with offices at 1221 Brickell Ave., 9th Fl, Miami, Florida (free parking available in the building) offers a free initial consultation in which to review and evaluate your financial and legal situation and to review your options for bankruptcy under chapter 13 or chapter 7. Attorney Jordan Bublick has over 25 years of experience in filing chapter 13 and chapter 7 cases and limits his practice to chapter 13 and chapter 7 bankruptcy cases as well as mortgage modifications.
Chapter 13 is often being used at in the present times to stop foreclosure case so as to give a homeowner the opportunity the obtain a mortgage modification. As part of the chapter 13 plan, you are able to propose to avoid or discharge "underwater" second mortgages. Past due IRS taxes may be paid off over time or in some cases discharged.1221 Brickell Ave, Miami, (Just South Downtown)
You are not required to bring documents to the initial consultation, but if you are able to bring some of the following it may be helpful: lawsuit papers, tax returns and paycheck stubs.
Jordan E. Bublick may be reached at (305) 891-4055 or at [email protected]. www.bublicklaw.com
Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankruptcy Cases and Mortgage Modifications (305) 891-4055
The Best Way To Cure Mortgage Arrears There is only one way that you can cure or catch up on mortgage arrearages with the help of the bankruptcy system. That way involves the filing of a chapter 13 bankruptcy case. Chapter 13 bankruptcy is a unique way to save a home that’s either in foreclosure,+ Read MoreThe post Curing Your Mortgage Arrears With Chapter 13 appeared first on David M. Siegel.
Using credit after bankruptcy is the best way to rebuild credit after bankruptcy. If you do want to join the financial mainstream, opening up lines of credit after bankruptcy discharge and paying them off every month in full is probably the best way to have a great credit score in as little as eighteen months after filing.
Phillip Tirone, the expert who advises most of our clients regarding credit matters after filing, advises them to not be concerned so much about the fact that they have filed bankruptcy. There is no legal way to have it removed from your credit score (just as there is no legal way for your debts to legally return). The good news is that it ultimately doesn’t matter because the credit scoring bureaus are far more concerned with your recent behavior that your past behavior.
The idea then, is to persuade the bureaus to pay more attention to your recent laudable credit behavior than to your pre-bankruptcy behavior. To that end, Tirone advises out clients to open three new credit cards after discharge and one installment loan.
With respect to the credit cards, keep them active by using them only every other month, make only small charges, maybe ten percent of your limit, and pay them off in full every month.
These cards should be taken out pretty quickly after discharge. The credit-scoring bureaus respond best to accounts that have been open for long periods of time. Your future credit score will benefit best if you open the accounts now. So no more moving balances from card to card and no more carrying balances at all.
With respect to the installment loan shortly after discharge, try and avoid taking out a car loan. You are going to get locked into a high interest loan and you are going to add a large balance of debt to your credit report. Far better would be an appliance, tire or furniture loan that can be paid off in six months.
Remember that this is no time to be even one day late on anything, this is your chance to build something new and good. Bankruptcy is truly a fresh start and its value needs to be maximized.
If you want to build up a great score after bankruptcy, you really need to commit to paying your credit bills immediately every single month.
If you need help rebuilding your credit after bankruptcy, please contact me as soon as you can, we offer this service for free to all our Oregon and Washington bankruptcy clients for free so please take advantage of it.
The original post is titled Tips for Increasing Your Credit Score in the Wake of Bankruptcy , and it came from Portland Bankruptcy Attorney | Northwest Debt Relief .
Personal property of $l,000.00 and $4,000.00 value
Each debtor may "exempt" (i.e. keep) $l,000.00 of personal property ($2,000.00 for a joint case) from the bankruptcy estate. Also another statute allows each debtor to “exempt” $4,000.00 ($8,000.00 for a joint case) of personal property if one does not claim or receive the benefits of a Florida homestead exemption. The valuation of the property is generally based on its liquidation value or "garage sale" value.
Cars and other Motor Vehicles
In addition to the above general personal property exemption, $l,000.00 in equity ($2,000.00 for a joint case), in one car (two for a joint case) or other motor vehicle (such as a motorcycle, truck, trailer, semi-trailer, truck tractor, semi-trailer combination, recreational vehicle, etc.) is "exempt" from the bankruptcy estate. Often this is not even used as many vehicles have no net value (equity) as more is owed on them than they are worth (i.e. you are "upside down"). During and after the bankruptcy, you must, of course, continue to make any payment due for a lien on the vehicle.
Pension Plans, IRAs, and other Retirement Plans
Pension plans, I.R.A.'s, and other retirement plans are generally not part of the estate or may be exempted from the estate (including under the exemption provided in the Bankruptcy Code itself 522 (b)(3)(C)) .
Prescribed Health Aids
Any professionally prescribed health aids may generally be exempted from the bankruptcy estate.
Earned Income Credit Refund
An interest in an IRS earned income credit ("EIC") whether received or yet to be received is exempt. It also applies to funds in a bank account traceable to such EIC. This exemption does not apply to collection for child support or spousal support. Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankruptcy Cases and Mortgage Modifications (305) 891-4055
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