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Judgment Signed by Judge on Same Day as Bankruptcy
From Witkin: "The judgment is the judicial act of the court; its entry in the judgment-book, which affords the highest record evidence of its existence, is but the ministerial act of the clerk." Brown v. Superior Court (1925) 70 C.A. 732, 735.
The attorney has no obligation to ask the court to vacate the judgment if the entry/filing was a mere ministerial/clerical act and if it was not the product of any post-petition conduct of the attorney or his client. Whether or not the judge's "judicial act" of rendering the judgment is void is obviously a close-call timing issue that may be difficult to resolve unless there is clear case law to the effect that a judgment rendered at any time on the day of a bk filing is void (I don't know the answer to that). However, all judgment enforcement is almost certainly stayed. See 362(a)(1) and (2).Gary R. WallaceLaw Office of Gary R. Wallace4551 Glencoe Avenue, Suite 300Marina del Rey, CA 90292Email: garyrwallace@ymail.comOffice: (310) 775-8719
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To: "cdcbaa@yahoogroups.com"
Sent: Wednesday, November 19, 2014 12:24 PM
Subject: [cdcbaa] Judgment Signed by Judge on Same Day as Bankruptcy filed. . . but
But Judgment was not "Filed" until October 28, 2014.
I have asked counsel to vacate the Judgment as it was entered post-petition. He is balking. . . He believes he can keep the judgment and prosecute it.
My belief, without a relief from stay annulling the stay. . . I believe he should vacate the judgment.
If he doesn't seek relief from stay after written nice request. . . . seems to me OSC re stay violation is in order . . . Am I missing something?
R. Grace Rodriguez, Esq.
OFF: (818) 734-7223
CEL: (818) 554-9922
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