Learnin

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About Learnin

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  1. Yep, definitely changing my banking strategies. Anybody's account could get hit with a writ at any time from any shyster anywhere....that's scary.
  2. Hmmm. Thanks, I'll look into that. Do you mean conversion suit as this definition describes, for getting my $125 back? http://legal-dictionary.thefreedictionary.com/conversion
  3. The bank will only reverse the 'legal processing fee' of $125 if they receive a 'letter of error'. The court isn't going to send that, so I'm pondering whether to ask SUttel&Hammer/Unifund to send a letter that the writ of garnishment was sent in error.
  4. Ok, so: Motion to Vacate Default Judgement and Stay Execution of Writ of Garnishment was scheduled for tomorrow Friday. Two days ago Unifund/Suttel&Hammer sent a release of funds to Wells Fargo, that put funds back in my accounts, though they kept the $125 legal processing fee they charged me (and will only reverse that if I get a Letter of Error from either Unifund or the Court). Today Thursday I got a call from the Bailiff, the Plaintiff put in a motion to dismiss without prejudice and and to vacate the default judgment, which A. I never recieved notice of and B. the Judge signed, so the case is closed. I'm kind of wishing I had put in a countercomplaint...I hadn't expected them to dismiss before the motion to vacate was heard, and the speed with which they dismissed/vacated the default judgement confirms for me what I knew...I had them by the shorthairs. So I probabluy should have countercomplained. But, funds are back in my account, the case is dismissed. I'd want to ask for dismissal with prejudice, but it's a done deal, I'd have to reopen it or something now. Probably not worth it? So that's a little win. 1. I'm planning to send the lawyer an email telling them to fax a letter of error to the bank so I can get my $125 back. They'll be leaving me injured if they don't. Plus, it would be an admittal that they made an error, which would be good to use against them later. I think I'm pretty safe from them coming back at me, but of course that is based on 'common sense', so they certainly still could. Any thoughts on the topic of getting my $125 back? I can't see the court doing a Letter of Error for me so it's got to be from the Plaintiff/lawyer. 2. I kind of want to sue them in Fed court since they erred SO BADLY (or small claims court). Any reason not to? Thanks for the help, that's win #2 (sure it's a little win and they messed up pretty bad, but still, it's a win).
  5. Ok, well, if you want to do a Motion to Vacate Judgment and Stay Execution of Writ of Garnishment in Seattle; 1. Do all the paper work for Order To Show Cause, Motion on Order to Show Cause, Motion to Vacate, Proposed order on Motion to vacate, Declaration in Support, Note of Motion (form get from the information desk). 2. Pick a hearing date M-F that is minimum 6 days post time the other side would get served. 3. Put that date on the Order To Show Cause form, no time because it's a non-dispositive and thus non-oral argument hearing (I'd write that in there), and the courtroom of the Assigned Judge. 4. Take the Order To Show Cause, Motion on Order to Show Cause, Motion To Vacate to the Ex Parte via the Clerk desk and pay $30 (returned the next 1-2 days) or $60 back in an hour or so or less (I got one back in an hour, one back in 20 minutes). This is a relatively new system and seems to be a new money making scheme by the court as the clerk told a couple people while I was in line that one could walk down to the Ex Parte court and do it yourself and not pay for 'their service'. 5. Assuming you get the Order to show cause granted, then file the Motion to Vacate (though I think they already filed it when doing the Order to show Cause but I filed it anyway just to make sure)(they don't file the Proposed order to vacate default judgment) and Note of Motion. Then serve everything. That took me a week and a half to figure out with the help of the law librarians, the debt relief legal clinic, various less than helpful court clerks, and a bailiff that refused to give me a hearing date (even though Local Court Rule 7 requres it) and for some impossible reason still thinks I was trying to get a date for/his judge to hear my Order to Show cause when I repeatedly explained that I needed a date only he can give me for a motion to vacate hearing which is required on the Order To Show Cause form without which it won't get granted. It was many many emails back and forth of 'who's on first?'. Who knows, maybe I didn't need to do the Order to Show Cause and could have just picked a date and filed the Motion to Vacate Void Judgment on day one.
  6. Oh, frustrating week. 1. Legal help at the law library gave me a packet, containint tmeplates for orders and motions. Great. But it is missin gone little tiny thing....how to get a hearing date/time. The instructions say to get the 'order to show cause to vacate' signed ex parte by a judge. But that requires a hearing date. After two hours going between three different courthouse employees and several law librarians on the other side of the floor (who constantly shook their heads at why the clerks were sending me back to the library instead of just helping me get a date), I spent the $60 to send the thing to the judge to get it signed. An hour later, denied, because of wrong date/time/place. Ok, so I ended up selecting an 'ex parte hearing time for the motion to vacate judgment' hearing, and it's not ex parte. Ok, fine, learning curve. So then local rules and the head librarian dude says the next move is to get a hearing date from the assigned judge's baliff. i call and leave a message and email Thursday. Monday late in the day I get a response from the Bailiff: "Please file your motion with the court in accordance with the civil rules. Generally, these motions do not need oral argument so you do not need to coordinate a hearing date with the court. We highly recommend you seek local legal counsel because these issues can become very complicated." Ok, so... THe good news is, legal help is back tomorrow Tuesday. The bad news, it's been a damned week trying to get this thing in. So Tuesday is dedicated to parking downtown and the law library: looking for more civil rules, legal help, getting the damn thing in. Questions for those knowledgeable in Washington Civil. 1. Does a Motion To Vacate Default Judgment require an order to show cause? 2. Does it require, or allow for, oral argument? 3. What civil rules describe oral/non-oral argument criteria? Man, just when I got comfortable with california rules/system....WA seems to have added a whole other level of complicated. Thanks.
  7. UNIFUND CCR, LLC Plaintiff, v. Learnin Defendant Case No.:xx-x-xxxxx SEA MOTION TO VACATE JUDGMENT AND TO STAY ENFORCEMENT OF WRIT OF GARNISHMENET; DECLARATION IN SUPPORT 1. Relief Requested. The defendant moves the court for an order vacating the void judgment entered in this action and staying enforcement of the writ of restitution. 2. Statement of facts and issues. This motion is based on the following grounds: A. Absence of Process of Service Defendant was not served (notice of) summons and complaint. No individual at Defendant’s residence was served (notice of) summons and complaint. Defendant’s residence was not in the State of Washington at the time of commencement of this action. Defendant has resided in California for approximately the past six (6) years and resided in California at the time of the commencement of this action. // // B. Fraud. Upon information and belief, Defendant alleges that fraud has been committed and committed upon the court, to be proven at trial. The Court allowed the Plaintiff to continue with the case due to misrepresentations by the Plaintiff. This cannot be determined until the case is reopened and the Defendant is afforded his right to defend himself. 3. Evidence Relied Upon. This motion is based on the attached declaration of Learnin and Exhibits A-F. 4. Authority and Argument. This motion is made pursuant to CR 55 and CR 60. “A void judgment must be vacated whenever the lack of jurisdiction comes to light.” Mitchell v Kitsap Cy., 59. Wash. App 177, 180-81, 797 P. 2d 516 (1990) “A trial court’s decision to grant or deny a motion to vacate a default judgment is generally reviewed for an abuse of discretion.; however, a court has a nondiscretionary duty to vacate a void judgment.” Leen v. Demopolis, 62 Wash.App. at 478; in re Marriage of Markowski, 50 Wash. App. 633, 635, 749 P.2d 754 (1988); Brickum Inv. Co. v. Vernham Corp., Wash.App 517, 520, 731 p.2d 533 (1987). Date: October 23, 2013 __________________________________ Defendant’s Signature __________________________________ DECLARATION I, Learnin, declare as follows; 1. I am the defendant in this civil action. 2. I request that the void judgment entered in this action be vacated and that enforcement of the writ of restitution be stayed until the motion to vacate judgment can be heard for the following reasons; 3. The first I knew of this legal action was when I discovered that my Wells Fargo bank account and been completely emptied of funds, without notice. Upon investigating with the bank, they informed me of the Writ of Garnishment. 4. Without notice, a total of $2,xxx.xx was taken from my Wells Fargo bank accounts. A $125 Legal Order Processing Fee was charged by Wells Fargo, leaving a total of $0.00 in my bank accounts. 5. I have resided in California since approximately November 2006. 6. I resided in California at the time of commencement of this legal action. 7. I was not served with Summons and Complaint in this action. 8. No person at my residence was served with Summons and Complaint in this action. 9. In a mailing I received approximately August 12, 2012, that was dated August 08, 2012, UNIFUND informed me that UNIFUND was collecting upon a debt with an (alleged) balance of $XXXXXX. UNIFUND addressed this letter to my California mailing address.. (See attached EXHIBIT A) 10. In a letter dated October 15, 2012, I responded with notice #1 of an administrative process in the form of FIRST NOTICE/DEMAND VALIDATION OF DEBT AND PROHIBITION OF REPORTING OF NEGATIVE CREDIT. (see attached EXHIBIT 11. UNIFUND provided an inadequate response in a letter dated November 2, 2012. UNIFUND addressed this letter to my California mailing address. (See attached EXHIBIT 12. In a letter dated November 26, 2012, I responded with a SECOND NOTICE/OPPORTUNITY TO CURE. (See attached EXHIBIT C) 13. UNIFUND responded with a letter dated December 4, 2012 providing another inadequate response. UNIFUND addressed this letter to my California mailing address. (See attached EXHIBIT C) 14. In a notice dated January 15, 2013, I responded with an AFFIDAVIT OF NOTICE OF DEFAULT (See attached Exhibit D) UNIFUND did not respond. 15. Against their agreement in the previously described administrative process, in June 2013 UNIFUND ran a credit inquiry on my credit report. 16. On May 14, 2013, Charles Reeves served Summons and Complaint upon an unidentified woman at a location in King County. Again, I have not resided in Washington for at least 6 years. 17. As of this date, I have received no communications of any kind from UNIFUND nor their attorneys regarding this legal action. 18. I am filing this Motion To Vacate Judgment And Stay Execution of Writ Of Garnishment in good faith and in all matters have told the truth to the best of my knowledge. I swear under penalty of perjury under the laws of the State of Washington that the foregoing statements are true. Signed in Edmonds, Washington on October 23, 2013. ================================================================================ UNIFUND CCR, LLC Plaintiff, v. Learnin Defendant Case No.: xx-x-xxxxx SEA MOTION FOR ORDER TO SHOW CAUSE re: VACATION OF JUDGMENT/ORDER AND STAY OF EXECUTION OF WRIT OF GARNISHMENT Learnin respectfully moves the court for an order requiring UNIFUND CCR, LLC to appear and show cause why the Motion To Vacate Judgment/Order of the Court and Stay Execution Of Writ Of Garnishment should not be granted. STATEMENT OF THE CASE AND GROUNDS TO VACATE THE ORDER Learnin is asking the Court to vacate the following void Order: ORDER OF DEFAULT JUDGEMENT The void Order to be vacated was entered on: September 5, 2013 The void Order should be vacated because Learnin was never served Summons and Complaint or any other required notice, and because he resided in California at the time of commencement of this lawsuit. Additionally, UNIFUND was well aware that King County was the incorrect venue to bring this action in that UNIFUND knew, as evidenced by their own actions, that Learnin’s place of contact was in California and not at the Washington address that they are falsely claiming to be his residence. I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct. Signed in the city of Edmonds in Washington on October 23, 2013. ________________________________ Learnin, Defendant In Pro Per EVIDENCE RELIED ON IN ADDITION TO EVIDENCE IN COURT FILE 1. Learnin’s Motion And Declaration To Vacate Judgment And Stay Execution Of Writ Of Garnishment. (This motion and declaration accompany this Motion For Order To Show Cause) 2. The Exhibits attached to the above Motion and Declaration including a copy of Learnin’s California Driver’s License and a copy of Utility Bill statement from California // // AUTHORITY Learnin’s Motion To Vacate Judgment/Order is made pursuant to the following: 1. Civil Rule 60((1): Mistake, inadvertence, surprise, excusable neglect or irregularity in obtaining the Judgment/Order; 2. Civil Rule 60((4): Fraud, misrepresentation or other misconduct of an adverse party; 3. Civil Rule 60((5): The Judgment/Order is void; PROPOSED ORDER A Proposed Order accompanies this motion. Dated: October 23, 2013 Respectfully Submitted,
  8. I have a great chance of getting it dismissed with prejudice at the hearing on the motion to show cause? That would be cool. I'm not worried about them claiming substituted service. Obvious it wasn't, in a variety of ways, and I'm confident I could have that conversation. Will have to bone up on WA code of course, but the base fact that they mailed me collections notice in CA seems tough to get around. I don't want them to just claim 'oops' and dismiss, I want to get them. So it will get: 1. Dismissed at the hearing to show cause 2. Not get dismissed and have a trial scheduled (within 60 days, it sounds like) If 1, I can do a federal case as plaintiff. If 2. I can....do discovery and a countercomplaint (I think that's what it's called in WA) and hope they settle. Open to other scenarios/options that I'm not seeing. You said to go with "they knew I was in CA but sued in WA for a quick and uncontested judgment". Should I add that in one or both of the motions in the next post?
  9. If you 'vacate' a judgement, what do you do for a writ (of garnishment)? Right now my motion is titled 'Motion to Vacate Void Judgment/Order and Stay Execution Of Writ Of Garnishment; Declaration'. But thinking about it, I don't want to stay the execution, I want it revoked/cancelled/voided etc. If the Judgement gets vacated, does anything automatically happen to the Writ? I assume I still need to have the court revoke/cancel/voided etc, get an order telling the bank to release teh funds and tear up the writ, etc. Motion for....And Relief From Writ Of Garnishment? Or should I jsut leave it at 'Stay of Execution of Writ Of Garnishment' and if the judgement gets vacated, I can orally ask for relief from the writ?
  10. Unifund only in CA, and I responded to them with validation of debt demand. Nothing from Sutter to CA, nothing on credit report. I could probably contact the gal at the old house in WA to see if they mailed stuff, but I don't know if that would help or hinder me unless she told the server I didn't live there and he didn't mention that, or they didn't actual deliver service to her like they claim.
  11. It would be substituted service if I lived there. I've lived in a different state for years. They knew I lived in a different state. They mailed me in a different state to let me know they were collecting.
  12. Woops. It was lost in there, I hadn't separated it out after I cut and pasted it over from Word. Edited it above. DECLARATION OF SERVICE Charles Reeves, reg #047507, Declares that “On 5-x-13 at 1PM at the address <address of house I used to own> this declarant served the above described documents upon LEARNIN by then and there personally delivering 1 true and correct copy(ies) thereof, byy then presenting to and leaving the same with Jane Doe, WHO REFUSED TO GIVE NAME, CO-RESIDENT, a brown-haired white female approx.. 35-45 years of age, a person of suitable age and discretion who stated they reside at the defendant’s/respondent’s usual place of abode listed above. Declarant hereby states under penalty of perjury under the laws of the State of Washington that the statement above is true and correct. Is the Declaration of Service 'proof'? Granted, -I- wasn't served, I wasn't served in the state I resided in, and my residence in that state wasn't served. So I'm thinking the Delcaration of Service is proof that I WAS NOT served. Yes?
  13. Thanks for that BTO429. So I got docs from the court today. 1. Summons, Notice to Service Members, Complaint. (e-filed Aug 13, even though documents are signed/dated May 13.) The Summons is not a on a court form like they are in California. It’s in regular numbered court document form with court name at top, plaintiff/defendant, case number (blank) and ‘SUMMONS’ and says: “A lawsuit has been started against you in the above entitled court by the above named plaintiff. Plaintiff’s claim is stated in the written complaint, a copy of which is served upon you with this Summons. In order to defend against this lawsuit, you must respond to the complaint by stating your defense in writing…..etc. You may demand that the plaintiff file this lawsuit with the court. If you do so…etc. This summons is issued in pursuant to Rule 4 of the Sup Court Civil Rules of the State of Washington.” I’m not a service member so that’s irrelevant. The Complaint: (case number left blank also) “COMES NOW the plaintiff for cause of action against the defendants and complains and alleges as follows: I. Plaintiff is a legal entity having paid all licenses and fees if required by law and is authorized to bring this action. II. The defendant, LEARNIN, is believed to be a married individual and as such incurred the below-referenced separate and community obligation. Defendant resids in KING County, WA. III. That at all times material, defendant has been the obligor of a certain credit account bearing number XXXX which has been assigned to plaintiff. IV. By the use of said credit account, said defendant became indebted on said account for goods, services, and monies loaned int eh stated amount, the unpaid balance $5087.62 which is fully due and owing to Plaintiff, together with such greater sum as may be proved at the time of trial, together with interest thereon at the highest legal rate. V. Plaintiff may be entitled to attorney’s fees either by contract or statute. Plaintiff requests an aware of attonrey’s fees, as determined by the court. We are debt collectgors, this is an attempt to collect a debt and any information obtained will be used fo that purpose. Wherefore, plaintiff prays for judgment against the defendant for the sum of XXXX together with interest thereon at the highest legal rate, and any further sum which may be proven at the time of ttrial,and a reasonable sum as and for plaintiff’s attorney’s fees; that such judgment shall bear interest at the highest legal rate after entry; and that the plaintiff have an receive such other and further relief as in the premises shapp appear just and equitable Nicholas R. Filer, SUTTEL & HAMMER, P.S. MOTION & DECLARATION FOR DEFAULT JUDGEMENT, Nothing interesting in the declaration (he was served, it’s been 20 days, etc). EXHIBIT A is allegedly an AFFIDAVIT OF INDEBTEDNESS from Elizabeth Meents (in the state of Ohio) swearing she is an authorized representative of UNIFUND and that she’s authorized to make the following statements and representations which are within her personal knowledge and she is competent to testify. As of XX/XX/13 there was a due and payable from LEARNIN, account # XXXX(last four digits), the amount of $XXXX.XX plus interest due and owing. The creditor for this account was CIIBANK and the account was acquired from CITIBANK. Said account has been forwarded to SUTTELL & HAMMER, P.S. as attorney for Plaintiff UNIUND CCR, LLC for the purpose of collection, adjustment, compromise or satisfaction of said claim including without limitation, commencement of a lawsuit. Notary KERRY ARMOUR of Ohio. EXHIBIT B consists of one BILL OF SALE AND ASSIGNMENT from Citibank to Pilot, and one ASSIGNMENT from Pilot to Unifund. “This Bill of sale and assignment dated June 2012 is by Citibank, N.A., ...located at….sioux falls…to PILOT RECEIVABLES MANAGEMENT, LLC, organized under the laws of the state of Ohio, with its headquarters located at…. For value received and subject to the terms and conditions of the Purchase and Sale Agreement dated June 2012, between BUYER and the BANK (the “Agreement”), the Bank does hereby transfer, sell, assign, convey, etc, to Buyer…the Accounts described in Exhibit 1 and the final electronic file.” This bill is not notarized, there is no identification of account numbers, lot numbers, etc. It is signed by Patricia Hall, with the hand written title ‘Financial Account Manager’. The ASSIGNMENT, effective 5-13 between Pilot and Unifund refers to the Servicing Agreement between the two, and has no account or lot numbers. It is signed by Morgan J Smith, VP of Operation (not operations) of Pilot Receivables Management, LLC and Autumn Hopkins, manager of Legal Operations for Unifund. DECLARATION OF SERVICE Charles Reeves, reg #047507, Declares that “On 5-x-13 at 1PM at the address <address of house I used to own but sold about 6 years ago> this declarant served the above described documents upon LEARNIN by then and there personally delivering 1 true and correct copy(ies) thereof, byy then presenting to and leaving the same with Jane Doe, WHO REFUSED TO GIVE NAME, CO-RESIDENT, a brown-haired white female approx.. 35-45 years of age, a person of suitable age and discretion who stated they reside at the defendant’s/respondent’s usual place of abode listed above. Declarant hereby states under penalty of perjury under the laws of the State of Washington that the statement above is true and correct. Then there is the Order of Default Judgement, Declaration for Garnishment stating that the bank is ‘indebted to the defendant in amounts exceeding those exempt from garnishment by any state or federal law..’ and the Writ of Garnisment. CURRENT TIMELINE OF EVENTS 1. Sometime early Aug 2012, Unifund mailed me a ‘we’re collecting’ letter. (So they know my California address) 2. I responded mid Oct 2012 with a FIRST NOTICE/DEMAND VALIDATION OF DEBT AND PROHIBITION OF REPORTING OF NEGATIVE CREDIT. (So they know my California address) 3. They responded early Nov with the date the account was allegedly opened, ‘has been accruing interest since it was charged off in ’09, account had an original balance of $5k (ish) and it’s current balance is $10k (ish). (So they know my California address) 4. End of Nov I sent SECOND NOTICE/OPPORTUNITY TO CURE. 5. Early Dec 2012 Unifund responded with ‘..has received your communication regarding your account dispute. This dispute is substantially the same as a dispute previously submitted’, again providing inadequate response. 6. Mid Jan 2013 I sent AFFIDAVIT OF NOTICE OF DEFAULT. No response. 7. June 2013 Unifund ran a credit inquiry. (So they know my California address) 8. Summons and complaint signed/dated first week of May 2013. Served to a clearly not my current address in not my current state. Efiled to court on Aug 2013, judgement and garnishment order following in October. 9. $2k plus taken from my account without notice mid October 2013. QUESTIONS: 1. Is it likely I can get the court to ‘release’ my bank from the garnishment order, thus preventing funds from actually getting into Unifunds’ hands? 2. Should I do a Motion to Vacate or a Void Judgement? (In the interest of quickest action to stop funds from getting to Unifund.) EDIT: I think those are the same thing. So, replacement question: What happens when the motion to vacate judgement gets granted (assuming it does). I mean, is the case 'reopened', essentially? What action comes next? 3. It looks like, in WA, the plaintiff didn’t have to file anything with the court unless I demanded that they do so (assuming I got served). 4. Am I correct in thinking that serving me by putting it into the hands of an unnamed woman and what is clearly not my current address renders said service INVALID? Or void, or whatever the best term is. 5. Referring to question #2, can I/should I try for an emergency motion to have it happen faster? Would the court consider that/care that my $2k is about to be taken from me for the long term? 6. If I want so sue and punish the other side, should I let them get the $2k? 7. They said ‘has been accruing interest since it was charged off in ’09, account had an original balance of $5k (ish) and it’s current balance is $10k (ish)’, but only sued for $5kish. How can I use that against them? (aside from Discovery questions eventually).