scrodman

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  1. If that's not good info to put on a motion to set aside, I planned on doing something like this (but tailored for our situation): scribd.com/doc/36092756/Motion-to-Set-Aside-Default-Righthaven-v-Klerks Motion to Set Aside Default (Righthaven v. Klerks)
  2. When was the DOFD (Date of First Delinquency) with Gateway? Was this via a credit card issued by Gateway? Or how was the computer purchases? If it was returned, what constituted the overdue balance? What month/date was the lawsuit begun against you? In FL, the Statute of Limitations on suing over Open Accounts (credit cards) is 4 years. This might have been a time-barred debt and that would make it much easier to vacate and have it then go away permanently (if they decide to continue trying the case, your defense is that it was a time-barred event but you'll need to be sure it was at least 4 years between the time when the account first went delinquent not charged-off...just delinquent...get a copy of your credit reports, hard copies. and you'll need to verify for yourself that this would qualify as an Open Account and not a written agreement, which has a 5-year SOL)
  3. re: the bank account info, waiting on a callback from Chase's legal dept but it does appear that our account would pass the joint account in entirety rules for FL. We'll have to go after them for that amount taken after we get the judgment vacated. As for the motion to vacate, how does this sound to put on the form for Motion to Set Aside Default Judgment (for the State of Nevada)...seems a very simple form and I didn't see any requirements to file a Motion to Show Cause or to have an Answer prepared when filing this motion. We will be using a lawyer in Nevada to handle this motion and flying back and forth is not practical. Is that providing too much detail? For the State of Nevada, is an Answer required when filing this Motion to Set Aside Default Judgment?
  4. Ok, new tact in this. Again, to recap, my wife was sued in NV in Nov 2009, moved to FL in Apr 2010, had a Default Judgment recorded in NV in Oct 2010. NOTE that my wife has been an AU on several credit cards that I have and her credit report shows her current address as the one here in FL and she was AU on at least two of the accounts going back to Oct 2010. NOTE the law firm representing Cap One in this case pulled hard inquiries on her EX report on 11/04/2010 (and softed on 11/05/2010) and 6/14/2011 so certainly would have been aware of her change in state of residence. Now, get this: A Writ of Execution to attach a bank account (we had a joint account with a national bank) was filed on Jul 26, 2012. The Writ of Execution lists my wife's address as her last address of residence in NV from Apr 2010. It also shows an address of the bank in Henderson, NV where neither I nor my wife (nor any joint combination) ever had an account with this bank. My only bank accounts with this bank have been here in FL. The routing number alone would prove the location of the bank. NOW, pursuant to the Florida Foreign Judgments Act ( flsenate.gov/Laws/Statutes/2012/Chapter55/All Chapter 55 - 2012 Florida Statutes - The Florida Senate ) Would this mean that this judgment from NV is NOT enforceable in the state of FL until a foreign judgment is recorded here? Or, does the fact that the bank we use happens to be a national bank give them access to attach/levy monies regardless even though she is no longer a resident of NV and hasn't been for 2 1/2 years and SHOULD have been known to this law firm who I'm now thinking intentionally used the wrong address on the Writ of Execution? Trying to find out if this judgment is really enforceable, technically, or if we can now use this as improper execution and just more ammo for a motion to vacate (since she was never properly server) EDIT: Another question...is my wife "judgment proof" in FL if her gross weekly wages are only $200 (seems the exemption is $750/week in FL?) even if she is not "head of household"?
  5. Yes, it was open and closed while residing in NV. Trouble is, she was joint on this account and it was her ex-husband who ran it up while he was getting into drugs and left her holding the bag. (not that that matters one iota in this case, though) If they do try and re-file in NV, it would probably be best if she opted for arbitration (which I'm sure they'll fight but the card was closed/CO in Jan 2008 so, I'm assuming here, the 2008 Capital One cardholder agreement would be applicable. To fight it in NV would cost as much as settling, I'm sure, and I'd love to try and pin Capital One with robo-signing affidavits (hers involves one Ottis Coward whose name shows up in like two dozen Google hits)
  6. Hoping that would be the case. If they did re-file in NV, are there motions we could file to have jurisdiction moved (simply to make it easier/practical for us to fight this better) Actually, if we do get it vacated and they do try to sue again, I would probably opt for arbitration (found a copy of the 2008 Cap One credit card agreement that still includes it and also claims VA as the governing laws state) if the SOL hasn't expired due to the vacated judgment (not sure if the SOL tolls/stops while the suit is in place and if vacating the judgment would then restart that clock?)
  7. In Nov. 2009, my (now) wife was sued in NV over a Crap 1 CC. She never received noticed of any type for anything related to that case. One month after the alleged service, she moved to a different location in Vegas (same county). Four months after that, in Apr 2010, she moved here to FL. *If* we are able to vacate the judgment from NV, if they wanted to continue pursuing the case, would they continue in NV or could we move to have proceedings moved to FL?
  8. His name is on a document in my wife's case, too. NV law would pertain in her case. I've gone over the NV statutes re: hearsay and am not sure how to properly word that into any type of motion to vacate judgment. The wording Cap One uses is like this: garland.courtconnect.net/DocsDMS/Default.aspx?A=/ck_image.present?DMS_ID=a205b524-cc26-4bb3-921b-a17cfa4ce5d1 (note, I don't have the full contents of my wife's case yet but they are on the way)
  9. Ok, her mom has the documents and is mailing them to us today. Should have them Thur/Fri. Nowhere in there was anything signed by my wife. The summons was signed by the process server, himself. From what I've read of Nevada law, the summons has to be delivered to a person at the address or, in the case of a gated/guarded community (which it was at the time) left with the guard or if refused, then sent via Registered or Certified mail (but, again, my wife never received such a letter) Is this, then, a technicality on which we can file a motion to vacate? Also, if we are able to get the judgment vacated, would the OC (Capital One) be able to sue again even though now it is past the SOL for collections for credit card debt?
  10. Thanks! My wife's mother is supposed to be picking up a certified copy of the records available from the case today. My wife no longer lives in that state so her mom is helping out.
  11. so much for that option Only chance now is hoping a motion to vacate / show cause goes thru on grounds of improper service.
  12. Question re: Capital One judgment... 1) credit card goes delinquent starting July 2007 and goes to charge-off/closed in Jan 2008 2) summons to appear allegedly served Nov 2009. 3) default judgment obtained Oct 2010. Now, the Capital One credit card agreement of 2008 states that the laws of Virginia apply regardless of the state of residence of the cardholder. VA has a 3 year SOL for credit cards. Does this mean the judgment was then obtained *after* the SOL ran out? Or, does the fact that the lawsuit was begun within the SOL override that?