Expert: Mark J. Markus- California Bankruptcy Attorney - 3/14/2008

Question
QUESTION: I know, wrong move, but I filed chapter 7 pro se on March 29, 2007 and received a discharge in july of 2007. A judgement, original creditor was a credit card company, from January 2007 is still showing in the public records section of my credit report. I did not and do not currently own any real property. I received a full discharge and it was a no asset case in WA. When I inquired with the court clerk about the judgement she said that I needed to move the court to vacate the judgement, that it just didn't happen on its own. So I prepared a motion and set a hearing, had the other party's attorney served. I received a phone call and a letter from the attorney's office stating that pursuant to 11 USC 522 (c) and (f) they don't believe that the court will vacate the judgement because it is a judgement lien, therefore they will file a response and request to be awarded attorney's fees. My question is how do I know if this is a lien, it is listed as a judgement in public records?? If it is a lien, I don't and had not owned any real property and I don't own any personal property that was non-exempt, what is their recourse? Please help, they are threatening to seek attorneys fees if I don't strike the motion by noon today. Sorry for being so lengthy and thank you in advance.

ANSWER: First of all, you don't seem to understand the difference between a judgment and a lien.  A judgment is merely a court adjudicated right to receive payment.  A lien is an interest in collateral.  If you didn't own any real property, then what exactly is it that you are seeking to avoid by your 522f motion (which is a motion to avoid a lien).   You can't vacate a judgment in bankruptcy court.  The discharge you received (assuming you received a discharge) removes your obligation to pay on the debt--it doesn't vacate a judgment.

It sounds to me (although I could be wrong) that you are concerned about what's being reported on your credit report, which has absolutely nothing to do with bankruptcy law.   If the report is showing something inaccurate, you need to dispute that with the credit reporting agency or with the creditor.  If the creditor is specifically providing false information to the credit reporting agency in an attempt to collect on the debt, then you can reopen your bankruptcy case and seek sanctions against them for violating the post discharge injunction (11 USC 524), but that doesn't sound like what's happening here.

---------- FOLLOW-UP ----------

QUESTION: I understand that there is a difference between a judgment and a lien.  It is my understanding that the credit card company had a judgment against me, which was discharged in my bankruptcy. I am not motioning the bankruptcy court, I am motioning a state superior court to vacate the motion.  The attorney I speak of is the attorney for the credit card company that has the judgment, I received a letter from them stating that they received my motion to vacate the judgment and they wrote:

"We do not expect that the Court will vacate the default judgment because XXXX company's judgment lien survives your discharge in bankruptcy, pursuant to 11 USC 522 (c), (f). See also Wilson v. Pederson, 76. App. 300 (1994) Therefore, we are filing a response in objection to your motion, and will appear at the hearing and request an award of attorney fees.
In light of the information above, if you wish to strike your motion we would respectfully request you do so before noon 3/14/08.  Otherwise we will have no choice but to appear at the hearing and request an award of attorney fees if we prevail. "
I am wondering if this is some sort of tactic they are possibly using to get me to drop my motion, or if there is some validity in what they are saying. Sorry for the confusion.

Answer
I do not practice in state court, so this is not my area of expertise.  It doesn't sound to me like you have any basis to vacate the judgment, and I'm sure the grounds for doing that are based on laws of whatever state you are in.  Again, not sure why you brought the motion to begin with.  As far as them getting attorneys fees against you, that is entirely possible.

On the other hand, I'm not sure why they care one way or the other.  If you don't own any real property, their lien--if any--didn't attach to anything that they can collect on in the future, given your discharge in bankruptcy.  Your motion is essentially meaningless (and, thus, possibly frivolous which may result in sanctions against you).  But in the end, the grounds for vacating a judgment are based on State law, not bankruptcy.