Welcome to Law-Forums.org!   

Advertisments:




Sponsor Links:

Discount Legal Forms
Discounted Legal Texts


Collectios/ Judgement

Discuss anything relating to Consumer Law

Collectios/ Judgement

Postby Telfour » Thu Dec 08, 2016 6:11 am

I received a item of certified mail from a collection agency in AZ, where I lived 5 years ago. I responded with a letter, sent registered mail, that I do not believe that to be a collectable debt and I wish to dispute it. I did not specify the reasoning but was disputing for Statute of Limitations. I just received a judgement against me, for 10,000 on what was claimed 4000 debt. 6000 in fees and interest. It also states interest accrues on the bal of a rate of 18% until paid. Interest on fees and costs is 10% until paid. The first piece of mail was certified, I responded. I hear nothing until this judgement comes. I currently live in PA and the judgement against me was filed in AZ. The debt is very old, and I thought was written off years ago. I have been trying to repair my credit for years and just starting to see results. I thought I would have to be served and don't believe I was. Also, why would a judgement come regular mail? How can I defend myself?
Telfour
 
Posts: 34
Joined: Sun Feb 02, 2014 7:54 am

Collectios/ Judgement

Postby Safwan » Thu Dec 08, 2016 10:04 am

I received a item of certified mail from a collection agency in AZ, where I lived 5 years ago. I responded with a letter, sent registered mail, that I do not believe that to be a collectable debt and I wish to dispute it. I did not specify the reasoning but was disputing for Statute of Limitations. I just received a judgement against me, for 10,000 on what was claimed 4000 debt. 6000 in fees and interest. It also states interest accrues on the bal of a rate of 18% until paid. Interest on fees and costs is 10% until paid. The first piece of mail was certified, I responded. I hear nothing until this judgement comes. I currently live in PA and the judgement against me was filed in AZ. The debt is very old, and I thought was written off years ago. I have been trying to repair my credit for years and just starting to see results. I thought I would have to be served and don't believe I was. Also, why would a judgement come regular mail? How can I defend myself?
Safwan
 
Posts: 42
Joined: Tue Mar 04, 2014 6:20 pm

Collectios/ Judgement

Postby Klint » Sat Dec 10, 2016 7:41 pm



The first thing you should be before preparing a motion to vacate is to look up your state's rules of civil procedure. It should spell out exactly what you need to do to file a motion. It will also tell you what reasons are valid, and may include the exact language you need to use. If you don't follow the procedures, you can get your motion thrown out on a technicality. Here's a good link:http://www.law.cornell.edu/topics/state_statutes.html

You must prepare a Motion and Declaration to Vacate Judgment and an Order to Show Cause.

Motion and Declaration to Vacate Judgment

A sample document is included at the end of this article which can be used as a template to write up your motion. This document tells the court why the judgment against you should be vacated. First, you need to identify the case by name and court reference number and all the persons involved in the judgment.

Next, explain your reasons for bringing the motion. State your "procedural defenses," that is, the good reason(s) why you did not respond to the summons and complaint on time or appear at a "show cause" hearing. For example:    *      I was not served with a summons and complaint - you need to check your state laws here. Some states say that a non-certified letter delivered by US Postal service is all that is required to properly serve a complaint. Most states, however, require that you be served in person or at least get your summons sent certified, return requested mail. Here is a good link to double check you state and county procedures:      http://www.findlaw.com/10fedgov/judicial/district_courts.html    *      I responded to the summons and complaint in time, but a judgment was issued anyway without a hearing.    * I was not able to answer the summons and complaint or appear at the show cause hearing because… In the same space, also tell the court about your defense to the judgment(why the case would have been dismissed had you shown up in the first place). For example:    * The collection agency never responded to my request for validation, therefore never providing proof that the debt was mine under the FDCPA.    * The amount of the debt exceeded the state's usury interest limits

Please note that the court will only respond to violations of existing laws. They won't accept reasons like: "My insurance company was supposed to pay this debt and never did, therefore I shouldn't have to pay this medical bill."

File the Paperwork

Most likely, you will have to file your motion at the same court which granted the judgment in the first place, which means that if the judgment was granted in Anchorage, Alaska, and you now live in Miami, Florida, you will have to fly to Alaska to both file the paperwork and to attend the court trial.

Go to the courthouse with your typed document and tell the court clerk that you are filing a motion to vacate a judgment. There may be additional forms to fill out at the courthouse, and there will probably be a nominal filing fee. The clerk should know exactly what needs to be done with your paperwork, and can answer all of your questions and even help you fill out the forms.

Once your paperwork is in order, the court will notify you of the upcoming court date. The person who originally sued you(the plantiff in the original suit) will typically have 35 days to respond.

Notify The Original Plaintiff

In some cases, once the paperwork is filed the court will notify the plaintiff and/or plaintiff's attorney. Be sure to ask if the court will serve notice or if you need to, as serving the notice of summons is crucial to winning your case. If it is your responsibility to serve notice, you can hire a third-party professional service company for a nominal fee(typically around $35).

What If They Offer to Settle Out of Court?

Very often the original plaintiff in your lawsuit will come back to you and offer to vacate the judgment, especially if they blatantly flouted the laws in winning the case in the first place and have no proof, say that you were properly served, or that they violated the FDCPA, etc.

If they offer to settle out of court, you should demand that they themselves file paperwork to dismiss the lawsuit. Also demand that they notify any collection agencies they may have hired to collect money and also notify the credit bureaus of the "mistake." It is also crucial before accepting any settlement offer(in writing, naturally) that they send you copies of any paperwork received from the courts about the judgment vacation or dismissal.

What Happens at Court?

In the best of all possible scenarios, the original plaintiff will not show up for the hearing to dismiss and you will win by default. If this happens, you shouldn't have to present anything to the court and should receive your dismissal automatically, especially if the original plaintiff never responded in writing to the summons.

In the second best of all possible worlds, they show up to the hearing and are unable to disprove your reason for requesting the dismissal:   1. They are unable to show proper documentation that you were properly served.   2. They are unable to show that the debt was legal in the first place(unable to show what the correct debt amount should be, if a contract existed in the first place, etc.)

This means, of course, that you should have good documentation on the case and have it available to present in court. See Suing your Creditors.

What Happens When You Win?

You should receive a court document showing that the case was dismissed. Send copies of this document to any collection agency that's contacted you about the case and to the credit bureaus so they will remove any mention of the judgment from your credit report. Even though you demanded that the defendant do this, it only takes a few minutes and a few stamps to insure that it gets done promptly by doing it yourself.
Klint
 
Posts: 39
Joined: Sat Apr 05, 2014 12:30 pm


Return to Consumer Law

 


  • Related topics
    Replies
    Views
    Last post
cron