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any way I can get default judgement vacated ?

Portfolio Recovery

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#1 OFFLINE   valorman

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Posted 19 October 2008 - 01:56 PM

I had a credit card from HSBC that goes to collection agency portfolio recovery associate.4 months ago I sent them a DV letter by certified mail.They responded with a notarized letter from portfolio.Saying that so and so is the the managing officer in this company and this debt is valid.I sent them another reminder to send me some original documents from original creditor as proof that they are the debt collectors.They responded with a letter like formal collection letters saying I owe them this money.
Few days ago I pulled up my credit report and it shows a judgment filed by portofolio recovery associates( the report shows status =civil claim judgement and doc #).Also the same debt is showing as charged off by HsBc with a different amount and same debt is showing as collection by portfolio with different amount on credit report.The judgment amount is also different.
Can some one suggest me how to vacate this judgment.I need some advise on these issues please. thanks

#2 OFFLINE   debtorshusband

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Posted 19 October 2008 - 03:46 PM

If you were not properly served, you should be able to get the judgment vacated on those grounds. Remember, however, that all that means is you will then have the opportunity to defend yourself against the charges. Getting the judgment vacated is not the same as getting a lawsuit dismissed.

To attack the service of the Complaint and Summons, you need to get and examine the court documents, by going to the courthouse, or by getting them off the web if you are fortunate enough to live in a county that has court documents on their website. You will want to examine closely the Proof of Service filed for the Complaint and Summons. Did they deliver it to the right address? Do they claim to have served you personally, or by substituted service? And so on.

Good luck.
DH

#3 OFFLINE   admin

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Posted 19 October 2008 - 07:38 PM

Getting the judgment vacated is not the same as getting a lawsuit dismissed.Good luck.DH


Actually, it means invalidating the judgment, but it doesn't mean they can't sue you again for the same thing.
I'm not a lawyer, so in all legal matters, it is advisable to seek the advice of a professional. All posts are just my opinion.

#4 OFFLINE   valorman

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Posted 20 October 2008 - 12:44 PM

Today i went to the court as per advice of debtorshusband's to see what papers portofolio has submited.There are only four papers of motion for the judgment .

(1) affidavit from a portofolio legal specialist saying that i am the legal specialist for plaintiff and have knowledge of the matter.
(2)complaint only 2 lines saying defendant is indebted to plaintiff on an account presently in default purchased by plaintiff from GM.Plaintiff demands for th payments there remains a balance of -----
(3)a letter stating that plaintiff is not in military service
(4)letter to the the court clerk for the default judgment.

Now should i get a lawyer to get this judgment vacated?
the credit card I have is from GM and on my credit report HSBC is showing as the original creditor.
all the amounts on my credit report and court judgement are different does those make any difference to vacate this judgement
can i ask the court to dv portofolio associates because when at first i send them dv letter they did not correctly responded to it.i have those letters and the certified mails receipts.
please advise me again on this

#5 OFFLINE   swirlgirl

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Posted 20 October 2008 - 01:36 PM

You need a valid reason to get a judgment vacated. Did you read in the court file about how service was executed?
I'm no expert. I'm just telling you what worked for me.

#6 OFFLINE   valorman

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Posted 20 October 2008 - 03:23 PM

You need a valid reason to get a judgment vacated. Did you read in the court file about how service was executed?

I only knew this two days ago that there is a judgment against me from portofolio.The court clerk said a letter was sent to you to appear in the court which i did not see may be misplaced because court clerk said it was not certified.
since i did not appear at the court a default judgement was granted however the court clerk gave me some papers to fill out and file a motion to vacate the judgment.I don't know the court procedures .and there are only four papers in the file as i mentioned above nothing else and the court clerk gave me all the copies.I believe the judgement was granted because i did not appear at the court date.

#7 OFFLINE   admin

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Posted 20 October 2008 - 04:09 PM

You vacate a judgment because:

1. you weren't served properly (sounds like that is the case for you.)
2. The case they presented was full of holes (what did they send you as exhibits for evidence?)
I'm not a lawyer, so in all legal matters, it is advisable to seek the advice of a professional. All posts are just my opinion.

#8 OFFLINE   sparky256DSL

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Posted 21 October 2008 - 09:42 AM

I just want to add that states have different time tables to get things done so you might want to check those out. I found out about a judgement against me about a year after the fact (served to the wrong APT and the manager accepted it even though I didn't live there and he knew it) but they waited to file for a garnishment until it was too late for me to contest the service. In IA you have to contest within 60 days to have a real chance or 365 days to be legal. Since the time had passed I had to accept it and now I'm looking for a way to get it off my reports (The debt really isn't mine either thats the worst part and the CA had no documents to prove I was the one they were looking for or that I owed the debt).
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#9 OFFLINE   valorman

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Posted 21 October 2008 - 12:29 PM

sorry double post

#10 OFFLINE   valorman

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Posted 21 October 2008 - 12:31 PM

You vacate a judgment because:

1. you weren't served properly (sounds like that is the case for you.)
2. The case they presented was full of holes (what did they send you as exhibits for evidence?)


surprisingly they did not send me any exhibit of evidence and in the court papers there is only one paper from some legal specialist of portofolio stating that he or she know this matter that's all.
today i closely look my credit report and the original creditor HSBC bank/ gm card has not only different amount on all three credit reports but it also says PAYMENT after CHARGE OFF /BALANCE O /MONEY OWED O /NO PAYMENTS DUE
And for the same account Portofolio has taken a judgment against me.
I have talked to a lawyer very expensive though,He said he has to file a motion to vacate the judgment on the grounds that papers were not served properly.also there is no proof of any money owed etc
is that case right?

#11 OFFLINE   valorman

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Posted 30 October 2008 - 06:18 PM

You vacate a judgment because:

1. you weren't served properly (sounds like that is the case for you.)
2. The case they presented was full of holes (what did they send you as exhibits for evidence?)


Even though I have submitted a motion to vacate the judgment based on the grounds that I was not properly served,The palantiff was sent a dv letter which they did not respond plaintiff has directly violated the FDCPA .etc>basically I have modified some letters from this site to my need and submitted to court along with the certified mail copies ,Yes before submitting the papers i show it to an attorney.

Today I have received a questionnaire from the plaintiff attorney that if you did not answer the questions on the sheet you may go to jail.
asking my name ,My social security #,My bank account # My address, my car plate #s My investment information etc.Mostly legal experts should have knowledge of this here.
How should I respond to this letter? I cant give them my personal information
isn't it under privacy act?And isn't the attorney under violation of some law by asking personal information without court order.I don't have much knowledge of law but i have read board here with lots of information.
Is it necessary to response to this letter when one day ago I have sent them the notice of motion to vacate judgment in the court?.
I want to submit a counter claim against this collection agency.
what kind of claims i have to submit?.
I have all the proofs against this collection agency
like payment paypers,
dving letters
credit reports ,certified mails sent to this collection agency.
how can I include this group of attorneys in to this for sending me harassment letters?

There are lots of knowledgeable members here Please advise me on this. thanks

#12 OFFLINE   Denita

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Posted 02 November 2008 - 06:14 AM

Bump***

#13 OFFLINE   debtorshusband

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Posted 02 November 2008 - 09:38 AM

OK, I'll try. But this in only IMHO.

Regarding the questionnaire: My guess is they are asking this in order to enforce the judgment. Since they have a judgment, they are not violating any law here. I suggest responding with a letter telling them that you are moving to vacate the judgment on the grounds that you were not properly served, and you will not provide such information until properly required by the court.

Regarding counterclaims, I'm not sure you have anything. There is no law requiring them to respond to a DV letter, and there is no law against them filing a lawsuit. You might influence a judge to rule in your favor by telling them that you tried to handle this before going to court by requesting documentation, which they failed to provide, but again, no broken law here.

And letters are not normally considered "harassment."

The only counterclaim I can think of is charging them with filing a frivolous lawsuit if in the end they don't have the documents to back up their claim.

I think you kind of need to forget about DV'ing. That is something that is done according to the FDCPA while they are dunning you. You are now in court. Here's the way I think you want this to go:

1. You get the default judgment vacated based on not being properly served.
2. The judge will then allow you to file an Answer, wherein you will deny their claims as appropriate and assert your affirmative defenses.
3. You will then engage in Discovery with the plaintiff. They will send you documents like Request for Admissions, Interrogatories, Request for Documents.
4. You will respond to these.
5. You likewise send similar Discovery requests to them. This is where, in the context of a court case, they are required to show you their evidence/documentation. Whatever they don't provide in Discovery, they can't submit during trial, and you object if they do.

At this point the possible outcomes are many. You may decide they've got a strong case, and offer to settle. They may decide they've got no case and file to dismiss. You may both agree to let it go to trial to let the judge decide.

Good luck.
DH

#14 OFFLINE   valorman

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Posted 09 November 2008 - 05:54 PM

You vacate a judgment because:

1. you weren't served properly (sounds like that is the case for you.)
2. The case they presented was full of holes (what did they send you as exhibits for evidence?)

As i was waiting for a judge decision on the motion to vacate the judgment.Friday I received a letter of opposition from plaintiff.Attorny for CA opposed on the basis that the proof of debt validation which i sent to Ca is inconsistent because the dates on the dv letter and postage receipt are different. Then the present as (exhibit A) copy of my envelope which i send them via certified mail for the motion to vacate the judgment the address on my envelop
Also he showed the last statement of my cc card which showed the balance as (exhibit B).
I took the papers to court and ask the court clerk about this opposition letter
she advised me looking at the computer that you must file a response to opposition motion and it has to be today because Monday the judge has to make notation on you motion.So In one hour time what ever come to my mind i wrote copy below

IN THE SUPERIOR COURT OF THE STATE OF ----IN AND FOR THE COUNTY OF ----
(collection agency)
Plaintiff,
vs.,
Defendant.
DOCKET : NO 00-0000-00
Response to an opposition motion

My name is ----- and I am the defendant in this case.Plaintiff CA and their attorney has filed a certification to oppose my request for the motion to vacate the judgment based on the exhibit (A) and (B).
Exhibit (A)Defendants Responses to Exhibit (A) :I ---- Never denied that, I do not live at so and so address .I receive all my gas, electric, phone bills at the same address. Plaintiff and their attorneys did not provide any proof of mails regular or certified sent to my name and to my address.

Exhibit (B) Defendants Responses to Exhibit (B) I ----- never Denied that this credit card ----- does not belong to me. Plaintiff CA were communicated and requested to provide not my name or bank card number But they were requested to provide written contract, assignment between bank and CA to prove that they are entitled to collect on behalf of BANK credit card as required by FDCPA /FCRA laws. Also they were requested to validate this debt.(copies of communication with CA attached with motion.).Plaintiff’s definition for Exhibit (B)is irreverent to this case. Defendants Response to the objection of Mr. --- attorney for Plaintiff about Defendants communication with CA. Dates communication is incorrect. However Original copies of certified mails can be exhibited as Honorable courts demands.

DECLARATIONI, I-----,declare as follows:
1. I am the defendant in this unlawful detainer action.Plaintiff fails to prove any inconsistency in defendant’s position for requesting a motion to vacate a judgment. As a result a motion to vacate this judgment must be granted so that defendant can fulfill the requirements as governed by laws.
I certify under penalty of perjury under the laws of the state that the foregoing statement is true.

Signed :

I dont know if this was good or bad but the limited time i had I wrote that response with whatever little knowledge i had from this site and suggestions from members of this site.Now what is further? what should I have to do more.Are the attroneys for plaintiff going to send me speedy letters like this?

#15 OFFLINE   debtorshusband

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Posted 09 November 2008 - 11:00 PM

I don't know the answers to your specific questions, but I have some general comments.

First, if you have already filed this paper, you probably haven't really done yourself any harm. I think judges give pro se defendants a little leeway.

That having been said, I see one mistake. "Unlawful detainer" pertains to evictions from rental properties. Perhaps you copied this phrasing from somewhere without understanding it?

My other comment is that at this stage you're trying to get the judgment vacated because you weren't served, so that is the only issue you should be dealing with. The key issue here is, where is the proof of service, and what does it say? Without any proof of service at all, the motion to vacate should be automatic. Getting them to provide documentation or the fact that you asked for it earlier can wait for the next step.

I truly hope this turns out well for you. Keep us posted.
DH

#16 OFFLINE   valorman

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Posted 16 November 2008 - 12:05 PM

My other comment is that at this stage you're trying to get the judgment vacated because you weren't served, so that is the only issue you should be dealing with. The key issue here is, where is the proof of service, and what does it say? Without any proof of service at all, the motion to vacate should be automatic. Getting them to provide documentation or the fact that you asked for it earlier can wait for the next step.

DH

Friday I have received another letter from Attorney for Portfolio as supplement to opposition to defendants motion to vacate judgment.However this time they did not say that dependent was served or not but they said Plaintiff forwarded to defendent on feb 29-2008 a letter and doccuments responsive to his request on february 19 at the same address and they send more proof of validation of debt (all forged)as Exhibit A.
(1) A letter from Portofolio stating
Re request for additional information account # ------
account holders name ,account holders address,amount owed etc
dated-- Feb 29 -2008 .
I KNOW THEY ARE LIARS THEY DIDN'T SEND ME THIS LETTER.

(2) SECOND LETTER.Affidavit of ownership and sale of claim
This letter they stated from some connie walsh stating that she is the authorized employee of PRA and she is authorized to make statement and averment here.she also stated that PRA is the new owner and assignees of this account.

(3) A VERY WEIRD COPY OF STATEMENT STATING

July 23 2008
Ref: account #

pra 0407-rcrv-nv
1441 schilling place
sallinas ca 93901

Dear pra 0407-rcvry-nv
we have received your recent request for documents pertaining to your account listed above.Enclosed is the information regarding your account activity that furnished on your billing statement.we hope our records will be helpful to you.If you have any question you may contact one of our cardmembers specialist at the telephone # on the back of your card.

sincerely cardmember services hcsqlz.

I dont know why they put this forged letter with the EXhbit and who is the bank and whom this letter was sent ,But it clearly show on the paper the account # as shown ref is pasted to it.

(3)Another AFFIDAVIT from some Stuart Austin on a plain paper( not the bank letter head) stating that he is the representative for HSBC BANK OF NEVADA(THE SELLER) which owned the account the customer named below.
The statements in this affidavit are based on the computerized and hard copy books and records of the seller maintained in the ordinary course of business having been made by the regular operated business.The affiant is authorized to make the statement and representation here
customer -------
account #-----
a computerized balance was maintained on the sellers database.
the end balance showing on the books and records of the seller at the time of the assignment of the account to PRA was -----

dated JUne 27 2008

notary seal.

(4)last statement of my card record.

I have no doubt that these are all fraud documents but how do i prove it?
how do I have to address the court?.they have got a default judgment and they know they have only case if the judgment stays.Can some one help me
form an answer to their opposition or in court language,because i have to challenge the credibility of those affiances and the creditability of these (FRAUD)affidavit letters.I am not an attorney neither i ever been to any court the little knowledge i have is from board on this site but what i see here is very visible fraud.I read here some place that any one who sign an affidavit has to testify.is that correct?.Those LETTERS AND AFFIDAVITS ARE ALL MASTER PIECE FORGED DOCCUMENTS OF PORTOFOLIO.So
My basic motion was that i was not served properly and they have violated the FDCPA by not validating the debt on time.Now the attorneys of plaintiff have changed the track and they are not opposing my motion on the basis that it was default but providing some other documents that their client did not violated any FDCPA LAWS.I definitely know that PRA Never send me any letters they are providing to court now.what should be my defense now?
Sorry for the lengthy post but I need help. thanks

#17 OFFLINE   BTO429

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Posted 16 November 2008 - 09:14 PM

I would file another motion to vacate based on the grounds that the Plaintiff reply to you first motion to vacate are irrelevant and the Plaintiff is clearly and intentionally avoiding the issue at hand which is improper service. The Plaintiff has failed to provided any proof that the defendant was properly served and the default judgment should be vacated.
The Plaintiff is clearly trying to mislead the court to avoid the issue as to whether proper service existed.
All the Plaintiff has provided is totally irrelevant as it shows nothing about proper service. If the Plaintiff continues to fail to provide proof of service ask for sanctions for lack of candor before a tribunal. The atty is clearly trying to avoid the issue at hand.
You can also file a motion to compel discovery and have the judge order them to provide the proof you seek or admit they don't have it.
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#18 OFFLINE   valorman

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Posted 29 November 2008 - 07:49 PM

OK, I'll try. But this in only IMHO.

Regarding the questionnaire: My guess is they are asking this in order to enforce the judgment. Since they have a judgment, they are not violating any law here. I suggest responding with a letter telling them that you are moving to vacate the judgment on the grounds that you were not properly served, and you will not provide such information until properly required by the court.

DH

I did exactly what was advised by sending them a letter to attorney.Friday I have received a letter its a motion to request and order for the interrogatories. The attorneys for Portfolio wrote in that if i did not appear on the date i will be arrested by court sheriff but there is no court date on that .I know this is the copy sent to me that they have filed a motion to get an order since they have the judgment.
Now do I have to oppose this in the court?and how do I do it?
The court haven't decided to vacate or not to vacate the judgment yet.The attorney for portfolio are trying to mess as much as possible because all they have is this default judgment once its vacated they have no case.
Now is it possible that at this point when judge haven't ruled yet to file a motion to dismiss the case and file a counter claim? Please advise

#19 OFFLINE   debtorshusband

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Posted 02 December 2008 - 09:33 AM

I'm afraid I don't really know what to tell you. This has gotten pretty sticky; you may need a lawyer. It seems the other side is using every dirty trick in the book.

I don't know if the threat to have you "arrested by court sheriff" is legitimate. If not, they've done a big no-no. If they've filed a motion, it would seem to make sense to file a motion in opposition. Your court clerk would be a better person to ask how.

Good luck.
DH

#20 OFFLINE   confusedone

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Posted 02 December 2008 - 07:19 PM

Not to hijack the thread, but I find it very informative & wanted to clarify... Are you saying that a case full of holes (no signatures, only phone call to OC, balance statement etc...) could be grounds for vacating a judgement even if you were served properly?





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