Interesting Judgement question

[chingasaholo]

posted this on another board, but this board appears to get more exposure...I'm retaining an attorney on monday, but the attorney is located in Arizona (the debt was incurred in virginia) and my attorney cannot litigate in VA only in AZ. basically all he can do is send nasty letters I suppose, but hey...it's all for free, I got the hook up Anyway, anyone have idea's or experience on this? I really dont want to pay a little over 6,000 for a debt that was originally 2,600.00.......also, note that the creditor also got a garnishment but nothing has ever happened, for almost 6 years. According to all I have been reading we may be able to get the judgement vacated on grounds of the soldiers and sailors civil relief act...But again, I'm no lawyer...just a network nerd.

ching

Good Morning,

my wife recieved a judgement against her in xx/xx/1997. I discovered this on her credit report. It was given at the norfolk va civil court by a creditor for 2600.00. At the time she was currently in the military in Hawaii and was never served, thus a default judgement for the amount was entered. the judgement says interest awarded from xx/xx/97 for 23.0 percent. The questions I have are, if we pay would we be liable for only the 2600.00 or would we have to pay the principal plus the interest for almost 6 years (over double the amount of principle?) The other question is, I believe normally her right to appeal has been expired for some time, but due to the fact that she was never served and never knew anything about the judgement would that be grounds for appeal? Also, she lives in another state now..would that offer protection?

[Edit by chingasaholo on Saturday, April 26, 2003 @ 06:21 PM]

[chingasaholo]

any thoughts, anyone?? I've been doing lots of research, the Solidier's and sailors civil relief act (SSCRA) is something I've not seen brought up here. Offers some very specific protection and defenses for servicemembers.

ching

[Edit by chingasaholo on Sunday, April 27, 2003 @ 12:36 AM]

[kimber6337]

she never recieved the judgement, she was in another state and you have proof of that. That alone is grounds to have the judgement vacated.

[chingasaholo]

I didnt know that was grounds to vacate a judgement, even though the contract was written/signed in virginia? I do know she was in hawaii when the court date happened. In fact, she was likely served with certified letter or something while she was at sea which means she didnt get any service. Unless they did BS like putting an add in the local paper, but I doubt it.

ching

[kimber6337]

Check the state laws.

You said you had an atty that you got hooked up with, have the atty call VA courts or look it up. Some states getting it in the mail is good, but if she wasn't there or was at sea and didn't get it till after the fact, that should stand for vacating.

[Edit by kimber6337 on Sunday, April 27, 2003 @ 09:26 AM]

[cookiemnster]

I know in California, and several other states, when one fills out the small claims paperwork, there is a box they have to check that certifies that none of the defendants is in the military. It's probably on Virginia's as well, since VA has so many military bases.

I'm betting that box was checked.

Not being properly served is grounds for vacating a judgment, as Americans we have the right to show up in court and defend ourselves.

Additionally, if she was deployed at the time of the service and/or the court date - more grounds for having the judgment vacated. Your wife has a lot of protection afforded to her under the SSRA. Hurry up and get your paperwork in, public sentiment is running high for the soldiers and sailors and a judge won't like that this company tried to take advantage of a sailor.

Good luck and keep us posted.

~Cookie

[chingasaholo]

great, We are having a firm in arizona look into it for me, they did attempt to attach her military wages and got a garnishment order but for some reason it didnt take effect, her wages were never garnished! I dont know if there is a time limit on that type of activity. I'm thinking they may have given up, but I cant be sure. I'm getting the money together for the full amount plus interest in case I lose and have to pay. The attorney's are doing this pro bono so I'm not going to have to pay them, they just cant litigate in Virginia but if we have to appear in court we can. A vacation of judgement would basically mean that they would be able to file another one but it would be quashed as the SOL for written contracts is 5 years in VA. This company does have an history of screwing military around. The attorney's are going to order the minutes from the case on monday and will let us know what are options are.

ching

p.s. when they filed suit there would be three box's that they could check:

1. defendent in the military

2. defendant not in the military

3. unknown

if box 1 or 3 is checked then the court has to provide counsel to represent and contact the defendant and advise him/her of their rights under the SSRA, this was defintely not done. I'm thinking it's up to the plaintiff to determine if she was/was not in the military. If box 2 was checked, and they had reasonable knowledge that she was indeed in the military, then it's a criminal violation punishable by 1000.00 fine and/or one year in jail.

[Edit by chingasaholo on Sunday, April 27, 2003 @ 10:27 AM]

[fixmycredit]

I have never had a judgement. What does a creditor need

in order to enforce one. Ie bank numbers, employement info?

Is there a way you can make it difficult?

[md]

<blockquote>Originally posted by chingasaholo

any thoughts, anyone?? I've been doing lots of research, the Solidier's and sailors civil relief act (SSCRA) is something I've not seen brought up here. Offers some very specific protection and defenses for servicemembers.

ching

[Edit by chingasaholo on Sunday, April 27, 2003 @ 12:36 AM]

</blockquote>

I believe that does afford some protections, specifically against civil lawsuits. Something to ask Navy legal about.

[cookiemnster]

Your attorneys will also want to check into whether or not the SOL was tolled while they had this bogus judgment.

[kimber6337]

Really, I would try this without an attorney. There are enough people around these boards knowledgeable enough to help you out, should you need it. It’s a simple filing actually and then you wait to see if the judge signs off on it. Not like you are filing suit again.

See what the VA court clerk says the procedures are for filing vacates. And worse case, the judge doesn’t sign off the vacate and you still need to pay.

Dunno on the garnishment, my DH is long out of service, but he thinks the gov’t did not allow the military wages to be garnished. Maybe another military source here might know.

[chingasaholo]

yep, they allow garnishments.....the DAFS (people who garnish the wages) say's so, but the garnisher has to provide a copy of a valid judgement and show that the SSCRA was followed or they will not allow the garnishment to take effect, Which may have indeed happened since her pay was never docked. My attorney's are going to look into this, I really want this gone. Worst case is we'll have to pay, best case is we pay nothing. Depending on what my lawyers dig up we'll see. If we decide to wait it out till the SOL (8 years) is up then we're looking at about another 1200.00 in interest payments. Or we could go for broke and get the judgement vacated if possible. I've heard both sides of the arguement: either wait it out till the SOL or pay now and save 1200.00 in interest. I'm going to see what our attorney's think about this one and we'll have a make a judgement call if the law isnt in our favor. My wife recently detached from the service so the SSCRA is still in her favor for 90 days.

ching