how do you vacate a final judgement? I was not alerted that a court date had been set and lost by default.?

Question

The statute of limitations had already passed but the attornies for their side, Asset Acceptance, had refiled with the credit bureau to make it look like a one-year old account (actually seven years). I have a few other accounts with them (I had a long, expensive illness in 1990). I CANNOT afford a lawyer> What can I do? Please help.

Answer 1

In UK
Within 14 days of the judgement or 14 days of your notification of the judgement then make an appeal to the court that awarded the judgement.

File for an appeal I guess. Which country are you in?
If you have rock solid evidence go for it. You can only make a plea for the statute of limitation at court. You were denied this opportunity. This is a basic denial of your rights to a fair trial under the Human Rights Act 1998.

Answer 2

It sounds like something they would do

There is far to much unknown info that makes it hard to give an extremely helpful answer.
Such as, were you properly served, if so did you properly file your answer, if you filed your answer did you include an affirmative defense of SOL, if you filed your answer did they fail to inform you of the court date, how much time has passed since they received the default judgment, the state you are in, etc., etc.

By the title of your question, you say that they did fail to inform you of the court date, but if you failed to file your answer within the time allowed it would have been an automatic default.

You should go to the court clerk and request a complete copy of your file.
I would recommend taking the file, all of your paperwork and your credit reports to an attorney that is well versed in consumer credit laws. Many atty's will give a free first consult, be sure to ask when you call.

If you have some concrete violations on Asset, the atty may possibly take the case on a contingency basis. Meaning if you win the atty should/would request the judge that Asset pay his/her fees. Though if you lose, you would have to pay.

You should also check with Legal Aid or find one near you through www.naca.net. The naca (National Association of Consumer Advocates) lawyers generally donate their time or work for a reduced rate.

In the meantime, you might click on my profile and click on the last link listed. It is a free credit discussion board with many people that have knowledge in "many" credit areas, including what you are going through. They donate their time to help others, much like the people on this site.

Answer 3

Sorry in advance for the long post folks...but this is a good educational question everyone should read!

Robert, I am not a lawyer or credit counselor....but I have been involved in helping people with identical situations as this.

You certainly are not along. There are a number of collection agencies who actually specialize in this type of debt collection. Here is how the "game" works.

They purchase very old debts that are over the Statute of Limitaions, bankruptcys or other hard to "legally" collect debts. They pay a tiny fraction of the debt. They may pay only $50 for a $5000 debt.

Why? Because they are gambling on the fact that most consumers do not understand the law, and do not know their rights. They do! And by "bending" the law, they will get a default judgment and then legally collect the debt. It's very profitable....where else can you gamble and consistently win bets at 100 to 1 odds?

There are three methods they follow.

1) They file the lawsuit, and hope that you don't show up to court. That is an automatic default, they win, and you have a terrible time getting it overturned. Most judges will simply look at you and ask "why didn't you show up and dispute this?". Case closed, you lose.

2) Your debt is over the Statute of Limitations. You know this, and you know that they can not legally collect the debt. What you DON'T know is that unless you show up in court and give an "affirmative defense", (inform the judge that the debt is over SOL), then you automatically lose the case again! You must defend yourself in court, even if the creditor does not have a legal right to collect.

3) To make things worse, collection agencies don't want you to even know about the lawsuit. They don't want you there to defend yourself. So they don't try very hard to locate and inform you about the lawsuit. By law, they must make a "diligent search" for you. But in many cases they simply attempt to serve you at the last known address.

The courts recently hit a few collection agencies with huge fines, and send several people to jail, for falsifying the service of process. You need to be aware of this!

Every state has laws that specify exactly how you must be notified. In some states, they must personally serve you. They can send it by certified mail/return receipt. If they can't do either of these, they can go back to court and request an "alternate service" method, where they can tape it to your door, or in drastic cases post a notice in the newspaper.

Some states, like Washington, are extremely lax on their service. laws. The process server can simply go to the last know address and give the summons to any responsible adult there. The problem with this method is what happens if you no longer live at that address?

OK, so what now? The collection agency has legally "screwed you", how do you fight it.

You must first read your state laws. Most states have theor statutes and court procedures on line. This can be complicated for you, and you may need to consult an attorney. There can be some major problems with this. In some states, if you do not file a motion within a certain amount of time, you are prevented from doing it.

After you have read and understand the law, you have two battles to deal with. First, you must prove that you were not served properly. The first thing the judge will ask is why you didn't show up in court and defend yourself. You have to prove you were not allowed the opportunity.

Did they make a "diligent search" for you? Did the process server claim you were served? If so, how and when? Can you prove you were not there, making it impossible for them to serve you? This information is in your court records, which are public documents. Go down to the courthouse and request a copy.

In one case I was involved in, the process server went to the last know address 3 times, then went to the judge and requested an "alternate service" claiming the defendant was dodging him. He then posted the summons on the door of the home. The case was overturned because the debtor showed he did not live at that location for 4 years, his drivers license had his new address, his credit report had his new address, it was listed in several public records, his neighbor new his new address, the post office was forwarding his mail and had the record....therefore the process server failed to do a "diligent search".

Once you have proven a bad service, you must now show the judge that if this case were to be reheard, you have an excellent chance to win it. The burden of proof is now on you. If you have any evidence to show the correct Statute of Limitations date, that is all you need.

After you have successfully overturned this judgment, you can then move on to file a countersuit against the collection agency for fraud and/or violations of the Fair Debt Collections Act. If you can prove he deliberately falsified the service, add some criminal and other civil charges to the mix. You can sue for FDCA violations, and collect damages. That will help pay your legal costs for fighting the judgment.

This whole process is going to be a little complicated unless you want to do your homework. If you are nervous about it, you need to find a lawyer. They are going to want $2000 up front to fight your judgment. Without knowledge of the law, these collection agents will easily fight you off.

You need to look around. There are a growing amount of lawyers who are taking these cases on a contingency basis, especially FDCA lawsuits. They will charge you only the court fees, and their money comes after you win because the creditor pays court costs and legal fees. Hopefully you will find one in your area. I know a few in Michigan who do it. As I said, I've worked with a few people on these cases and won...it's not that hard, but you MUST understand the law and know how collection agencies work.

Good luck, if you need more advice email me and I will try to answer your questions.

Answer 4

get a lawyer. you can't afford not to

Answer 5

SFA get over it and move on