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Vacating default judgement(UPDATE)


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I've never had to do this before so I'm looking for the correct way to word this. Also what type of paperwork I'm suppose to submit to the court clerk.

First of all when I called the the court clerk up on June 21, she told me I was suppose to be in court on the 18 of June. I was sick with Bronchitis during the month of June. It went away but now in the past week it came back to me. I have to go to the doctors, I think the stress of all of this is contributing to this. This is what I want to use as my reasons for not being in court.

My defenses are, this Ca is not working on assignment from Providian, as they claim to be. Providian doesn't even have me in their computer system anymore. They don't know who the heck I am. This account was charged off back in 2000 following the class action lawsuit. Company X that it was charged off to, filed for bankruptsey. they were back in court sometime late last year.

Anyways Ca, has no former knowledge of this account. Just reading their summary judgement I can see that. Mr. Dumbar from CA, affidavit's a lie. Something in their can very easly be proven. It was one of the biggest reasons Providian got sued for in the first place. I would like to slap

him.LOL I never seen this Ca on my credit reports. The only one I wasn't able to check out on line was Equifax. But on my Experian Credit report I saw their lawyers make an inquiry. Unless they are suddenly showing up now. They used a skip tracing company name and placed that on my Experian Credit report. A company the CA + lawyers seem to run.

Any help and advise would be appreciated.

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Do you know the date of your last payment to Providian? It should show on your EQ as the Date of Last Activity. On EX, you would have to call and ask when it will fall off, unless it is showing in the right hand column of your CR.

If your DOLA is before at least May, you could use this as a defense also as the debt would be considered timebarred. Your illness is a legitimate reason, but, you will need letters from your Doctor clearly showing you were under their care during this period for a certain illness. Then you would go to the Courthouse and file the papers. Hopefully, the Judge will agree and vacate the Judgment. If so, you will ask for the Court to "Dismiss with Prejudice".

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  • 2 weeks later...

A few questions before I take my papers and file a motion to vacate. I want to make sure I understand this.

Should I ask that my case be "dismissed with prejudice" and include this in my motion papers? This CA has harrassed me long enough for an account they don't have.

Does filing this motion give a new court date or does the judge make a decision on his own without a hearing? This CA is out of town in another county.

On the information on this site, its says to a write a motion and declaration, that I understand, what is the order to show cause? Is that the same as the declaration?

I want to get these papers into the court soon. Thanks!

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The SOL in NYS is 6 years, trust me.

An order to show cause is simply a motion that is started by having a judge set the time and date. You normally use it in special situations. You might use it here to ask teh court to stay enforcement of the judgement ( including reporting it) pending the hearing of your motion.

Where was teh default taken? Smalll claims? City Court? Supreme Court? That will determine how you proceed. You might want to call the clerk back and say you want to bring a motion to vacate, when is the next motion term and which judge will be hearing it. Most lower courts take motions on papers.

To open a default in NYS, you must show 1) a reasonable excuse for your default and 2) a meritorious defense to the claim.

For #1, you can cite your illness, and if you can show a doctor's bill or missed time from work, so much the better. You could plead ignorance of the law, or that you contacted an attorney and he never got back to you. Something to say why you ignored the summons.

As for #2, argue that teh court may not have jurisidction, that plaintiff may not have capacity to sue, since it is unclear that you owe this plaintiff anything. It was aProvidian cahrge , you heard nothing post-lawsuit, now these jamokes pop up, but they do not establish any right, at least on the face of the complaint, and as far as you know, to sue you for it.

Attach a proposed answer to the complaint to your papers.

You ask the court to vacate the default, and allow you to answer it via the attached answer.

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  • 4 months later...

O.k. I had court on November 29, I just recieved my answer to vacate the judgement. It was denied. This is far from over.

The lawyers/CA have never proved they have this account. All I have is 3 computer printed statements(One shows it paid but late.) A copy of the billing rights. This was in with the summary judgement. The CA/ lawyers never gave an answer to the court they knew there was a court date. I sent them my motion papers.

The judge laughed at me 2 times along with the court officer. They were the only ones that laughted the 3 court ladies didn't.

I have 2 different judgement dates. i don't think there was a court date.

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I showed the judge all my papers I had. He saw where the lawyers placed the charged off account following the class action suit against Providian.

He saw this CA never showed up on any of my credit reports. He saw my credit report how they used a skip tracing company to gain access to my credit report. He saw the violations. I even printed one out for him.

He said an assignnees goes from one person to the next and the next and the next. Oh Yeah, but Providian doesn't have this account anymore and they are saying they are working on assignment. I called Providian.

This Judge is a nitwit. He hasn't been the judge there that long.

He was one sided, I though they weren't suppose to do that.

The CA/lawyers sent the judge a letter and he signed it, 3 weeks before I think I was suppose to have a court hearing.(default judgement) A letter that they were granted summary judgement and to enter it into there court records. Does anybody know anything about this kind of letter?

Anybody that lives in the western N. Y. area might have heard about the police/court officer that took his own life maybe about a month ago.

Those bastards.

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I live in WNY and dont remember much about it.

I hope you have better luck. I hate stupid judges.. they dont follow the law.. only their own rules.. makes me mad.

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Sky Warner,

It does seem like this Judge follows his own rules and not the law. I won't file a complant against him unless I'm advised to. I live in Niagara Falls.

I'll start looking again for an Attorney. This case does get complicated.

The CA that had this account filed for bankruptcy nobody notified me. I just have been reading it on the computer. I am going by all the information I have and this company is where the lawyers placed my account following the class action lawsuit against Providian. I have that letter. I don't think this Judge can read. :roll:

http://www.sdb.uscourts.gov/Decisions/2003%20Decisions/2003%20-24%20Credit%20Store%20Inc.htm

I am confused. xbeer) What do you do in a situation like this?

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