moblind Posted December 1, 2003 Report Share Posted December 1, 2003 Good morning all - I filed a motion to vacate & will pick up the papers & hearing date today from the court. There was a default judgment filed against me in 1999 by the infamous Midland that I didn't know anything about until I got a copy of my credit report this year. The account was originally a First USA account. I was suppose to be an authorized user on the account and somehow ended up as the primary cardholder . In any event, I KNOW I never signed any application for this card - I remember them calling one night and offering the card to my fiance, who did everything over the phone. When I contacted First USA about 6 weeks ago to try to straighten this mess out, they were able to pull up an old bill that has my name on it (the bills apparently were addressed to me). Funny thing though, they immediately removed the negative tradeline from my credit report.Now that I've filed a motion to vacate for improper service, there will be a hearing before the judge on this case. I obtained a complete copy of the court papers in this matter and there are a few inaccuracies in the affidavits they filed with the court, which I will bring up, but I know for a fact that they do not have an application with my signature on it. How do I deal with this in court? I really need help here. Thanks Link to comment Share on other sites More sharing options...
admin Posted December 1, 2003 Report Share Posted December 1, 2003 What kind of inaccuracies? Link to comment Share on other sites More sharing options...
moblind Posted December 1, 2003 Author Report Share Posted December 1, 2003 For example - in one of the affidavits they say that I charged goods & services to account number ********* (a 9-digit number), but that would have been impossible Discover (the OC) uses 16-digit numbers for cards. Although I suspect that the 9-digit # is their internal file number, the statement that I charged things to that number is factually inaccurate. What's also funny is that they obtained this judgment in 1999 (and I was never served so I didn't know about it), but they have never sent me anything in the mail about it, never tried to find me or anything. Link to comment Share on other sites More sharing options...
calawyer Posted December 1, 2003 Report Share Posted December 1, 2003 You may have already done this, but what you need to inspect carefully is the "return of service" on the summons. This is where the plaintiff says, under penalty of perjury, how the complaint was served on you. Find an "inaccuracy" here, and you are home free. Link to comment Share on other sites More sharing options...
moblind Posted December 2, 2003 Author Report Share Posted December 2, 2003 The first thing I checked was the affidavit of service, which says they served a 50 year-old "relative" with brown skin, dark hair, 5'7" and 200lbs. I don't have anyone in my family (either living in my home or not) who fits that description. Also, in my apartment building you need to file annual income affdavits to management and I was thinking that I can at least use those (from the past 10 years) to prove that the only female who has ever lived in that apartment has been me (it's always been me, my brother and my two boys). That misinformation on the affidavit was what I used to file for the motion to vacate.In addition, I have found out for a fact (and with proof) that the individual process server that supposedly served me has lied previously on another affidavit of service. I'll be filing a complaint with the licensing agency here in NYC about him sometime this week. Link to comment Share on other sites More sharing options...
trips4me Posted December 2, 2003 Report Share Posted December 2, 2003 Kudos to you for being on the ball and doing the task of research. Hopefully the judge will see you are well prepared and rule in your favor.BTW, are you working Pro Se or using an attorney to file your motions? Link to comment Share on other sites More sharing options...
moblind Posted December 2, 2003 Author Report Share Posted December 2, 2003 Thank you. I am doing it pro se, and I know I will need as much ammo as possible. Like I said, I don't really care how many statements they pull out, I know they don't have an application with my signature on it. I need to pull up all the cases and commission letters I can to support my position.In a similar vein, I have posted before about how my fiance had a default judgment obtained against him in 2001 by this crapweasel CA in the amount of $1800 (garnished his check for it). Judgment was satisfied in 7/2003. Well, lo & behold, here's what I found out:CA has never been licensed to collect debts here (which violates several city & state laws here). The fine for such activity here is - get this - $100 per violation per day for each and every day the CA has attempted debt collections without a license . I have factual proof that this CA has been doing collection activitites for AT LEAST the last three years and has a couple THOUSAND judgments in the name of collecting debts when they have not been entitled to collect anything since they weren't licensed. It gets even better.I did some checking and this activity apparently violates PENAL codes for culpability, accessorial conduct, conspiracy (in the 5th degree-Class A Misdemeanor), criminal facilitation (in the 4th degree - Class A Misdemeanor), offenses filing false written statements(tampering with public records in the 1st degree - Class D Felony/offering false statement for filing in the 2nd degree - Class A Misdemeanor), scheme to defraud (in the 1st degree - Class E Felony), perjury (in the 1st degree - Class D Felony), making sworn false statement (in the first degree - Class E Felony) and (my personal favorite) grand larceny (in the fourth degree - Class E Felony). But WAIT! There's MORE!The principal of the CA is the managing partner of the law firm that sued on the CA's behalf. Because of the above violations and unlawful behavior, and because as an attorney he knew or should have reasonably known that his "client" had to be licensed tpo perform said activity, and because the law firm and the client are inextricably intertwined, he is also liable for various accounts of misconduct under the ABA & NYSBA rules and code of conduct. In other words, I'll be filing to have him disbarred and to have the DA press criminal charges against him personally.All this information I have gathered on my own.We intend to draft the complaint, complete with affidavits and fax it over to the CA and the CA's attorney (since we'll be naming them in a lawsuit to recover the money they garnished plus interest and damages for my fiance's humiliation at having his check garnished - punitive as well if we can get it (gotta check on that)). I wonder how they'll respond . . . Link to comment Share on other sites More sharing options...
moblind Posted December 3, 2003 Author Report Share Posted December 3, 2003 bada bing, bada bump Link to comment Share on other sites More sharing options...
calawyer Posted December 3, 2003 Report Share Posted December 3, 2003 The first thing I checked was the affidavit of service, which says they served a 50 year-old "relative" with brown skin, dark hair, 5'7" and 200lbs. I don't have anyone in my family (either living in my home or not) who fits that description.If I were the Judge, I would be very unhappy (and not with you). Make sure to say that the first you ever heard of this lawsuit was when [fill in the blank ie: I saw the judgment on my credit report]. You may also want to bring a family member who was living with you at the time to the hearing to back up your assertion that no such person lived in your home.Good luck. Link to comment Share on other sites More sharing options...
moblind Posted December 3, 2003 Author Report Share Posted December 3, 2003 That was exactly what I put in the motion to vacate papers (and it absolutely is the truth). I'm going to bring my brother with me down to court, and copies of my notarized rent affidavits for the last 6 years. I hope the judge dismisses the case and those sneaky crapweasels serve me with another summons and complaint (which I'll gladly accept). Then I can go to the court, file an affirmative defense that the debt is out of SOL and then counterclaim for harassment. Link to comment Share on other sites More sharing options...
admin Posted December 3, 2003 Report Share Posted December 3, 2003 I think we have a catchy new title for CAs - "sneaky crapweasels".ROTFLMAO! Link to comment Share on other sites More sharing options...
calawyer Posted December 4, 2003 Report Share Posted December 4, 2003 I hope the judge dismisses the case and those sneaky crapweasels serve me with another summons and complaint (which I'll gladly accept). Then I can go to the court, file an affirmative defense that the debt is out of SOL and then counterclaim for harassment.You need to check your state's code of civil procedure to see what happens if a judgment is vacated. Usually, the case is not dismissed but the defendant is ordered to answer or respond within a certain number of days (sometimes, the defendant is required to file a proposed answer along with the motion to vacate). Link to comment Share on other sites More sharing options...
moblind Posted December 4, 2003 Author Report Share Posted December 4, 2003 CALAWYER - I don't think I was clear. I know we're going back to court on the OSC to vacate, but I'm hoping the judge will dismiss their case for improper service. And THEN I hope the sneaky crapweasels attempt to file again I filed an Answer when I filed an OSC to vacate. My answer was"I never applied for the First USA card. It was not my account. In addition, I was never served with these papers. No one as described on the Affidavit of Service lives or has been in my apartment."This is entirely true. The suit names me with my fiance's name (let's say it's "Money") and they have the fictitious person they gave the person to as "Jane" Money, a "relative" and that "Jane" was aked whether I iwas in the military and that "Jane" said I was not. Guess what? My last name and all my relative's last names are "Doe" so any "relative" of mine would be named "Jane Doe."Here's something else I just noticed right this very minute . . . the form they used for the Affidavit of Service is one of those standard Blumberg forms that you have to fill in. But there are two different typefaces in various blanks. For instance the time, date & address served are all filled in with a small font, but the process server's name, document served, person served & description of that person are all filled in with a regular font. Link to comment Share on other sites More sharing options...
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