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Showing results for tags 'Motion to set aside'.
Hi, I was the owner of an single member LLC that went out of business. A debtor (advertising company ) sued for balance owed and for breaking the contract. I never signed personally for this contract but the plaintiffs attorney named the LLC and myself on the complaint. They eventually got a default judgement for both the LLC and myself. Do I have grounds to have this motioned to vacate? This collection company is now trying to collect on this judgement. Any advise would help. Or even a sample motion to vacate would help.
While out of work we got behind on our HOA assessments. The HOA Board (our neighbors) decided to file suit against us 4 months after a payment had been made when all that was owed were the 2013 assessments and a few late fees. The excessive collection fees, attorneys fees and late fees added up quickly. So we added fees (about $3000) into a Chapter 13 that was really filed just to get our mortgage lender to modified our loan. That strategy worked and this past August our mortgage lender modified our loan so we ended the chapter 13. At that time we also began trying to negotiate with our neighbors who are on the HOA board for a settlement payoff amount (like we had tried to do in the past). We suggested $1000 towards the junk fees (instead of $3000). They said $1200 but they demanded it be paid in 24 hours. We told them that was not enough time and to instead give us 30 days to get it in (as we knew we would have the money at the end of the month). they never responded and stopped answering our communication. In the past the collection attorneys (who are in Austin) that were handling the case normally always sent any notices to us in the regular mail and we always received them. But when they wanted the case to be re-opened (since the 13 was no longer holding them up) they did not send us notice of a hearing via regular mail. So unfortunately we had no clue that they were seeking a summary judgement. In November we received a notice from the court saying the case was closed but there was no other information. We thought ok great. Then for some reason in last month I decided to google my name. I saw that there was a "Sheriff Sale" (foreclosure) scheduled for February 3. Of course I panic. These collection attorneys did not contact my mortgage company about this and they did not contact me. It is my understanding they have to contact the 1st lien holder. WF says that they checked the title and there was no lien on the property...but it appears a lien was requested in November. So none of it makes sense. They also did not send us a copy of the lien they filed back in November. We looked it up. Since we had always received notices before it seems shady that the notices stopped. I contact these people about this and their response was we sent it certified and to your email address. Well I had never given them an email address. And they knew that I had not picked up any of the certified letters previously but did confirm with them that I got notices via regular email. Then come to find out they were sending an email to a family members email account. They were no longer willing to negotiate and refused a settlement pay off amount. So yesterday we filed a motion to set aside the default judgement and request a new hearing. The judge signed the order to set a hearing on the motion to set aside the default judgment. The judge also set aside the order of sale pending the result of the hearing. The judge said I cant tell you what objections to make...but you can go to the law library and research. I feel as though this judge is for lack of better words on our side in a way...by giving but not giving that advice. He also told the attorneys they could only get $500 in atty fess instead of $2500 like they requested in the default judgement. So I think we may be able to get this to be set aside. But I need to know how to do it and be pointed in the right direction. Is there a law or rule that can be used in this situation? At the time they got the summary judgement the amounts they requested were still questionable and being disputed. At that time we owed the 2014 dues and the disputed late fees. We have since paid the 2015 dues and have shown good faith all along to negotiate a deal. But these collection attorneys are not taking the offers - even the previous offer that the HOA suggested. It seems odd that our HOA would be willing to negotiate in August and now a few months later refuse to negotiate. I think it is the attorneys trying to get as much money in their pockets as possible as none of these excessive fees are going to the HOA. Any help, advice or direction would be so greatly appreciated. Thanks!
Yes, you read the subject line, and its true...read on: First of all, you should all know that one of the Forum members has been helping me throughout this case, much kudos goes to him! Some of the below are excerpts from messages I have sent him. All of this actually started back last January, but no suit was filed by Midland until June. So far I have weathered their MSJ (denied!!!), the prelim trial, and the trial itself. The trial date was December 3rd at 2PM, I of course arrived early and went into the courtroom at 1:55. There were some criminal cases still ongoing, and those did not finish until 2:10 or so. In the meantime, I watched the door for the JDB lawyer, since I had not seen him yet. At 2:00 a lady entered the courtroom carrying a large tote bag with what looked like files in it, so I thought, "OK here we go..." At 2:10 she left the room, and at 2:15 they called my case. I approached the bench...by myself...no one else was in the courtroom, save for the judge, bailiff, and courtroom workers. The clerk stepped outside to announce in the hallway, and the reporter got on the intercom and paged the JDB counsel to the courtroom. "Mr. Defendant, I am going to let it be shown that you are here and that Plaintiff is not. I am going to dismiss this case WITH PREJUDICE." Absolutely stunned, I looked at him in surprise...I WON!!! I offered a tentative smile, and said, "But your Honor, I took the time to get all dressed up..." he actually smiled back, and said, "Well, it looks like both you and I have some extra time now, doesn't it? I have dismissed this with prejudice; this case is finished in this court's eyes." But, now the paranoid part of me takes over...can they file a motion to set aside judgement? For all I know, his car broke down on the way to the courthouse (it is a cross-state drive for him). Maybe I am still stunned by this whole thing...and what about going after them for violating FDCPA regulations? It seems to me that they knew their goose was cooked when they did not show up in court today. I am sure I could find a lawyer around here to take the case if there are grounds.... And now, today in the mail, it appears my paranoia has been substantiated: I received a notice of hearing for December 20th. The plaintiff has filed a motion to set aside dismissal and reinstate. They are saying that 'due to a clerical mistake and inadvertence by Plaintiff's attorney, Plaintiff's attorney failed to properly calendar the adjourned trial date and failed to appear for the trial scheduled on December 3, 2013 at 2:00.' and 'Pursuant to MCR 2.612 ( C ), Plaintiff moves this court to relieve Plaintiff from the Order of Dismissal on the grounds of mistake, inadvertence, and excusable neglect'. Sigh. I am going to go to the hearing of course and intend on turning it into an impromptu MSJ, since they never have produced the bill of sale. Any words of wisdom?