iwant2getthem Posted April 6, 2005 Report Share Posted April 6, 2005 hi..I had filed a motion to vacate a default judgement. I was never served. It was by Sherman. WE went to court and I told the judge I was never served. They tried to serve me at my parents house where I have not lived for 8 years. They also said they posted it to the door and sent it CRRR. In the file they had provided to the judge, the CRRR was returned undelivered saying I didnt live there. Well in court the guy was an a$$. The judge flat out asked me was it my debt. i said "I dont know I have never received anything saying it was." I had DV'd them and gotten no response. The judge said it either was or wasnt and I would know if it was. I said again I dont know. I had to go out to talk withthe a$$ from the JDB...he said the law didnt matter and all my tactics from creditinfocenter are useless..they know about them and they wont work....we went back in and he requested I produce and affidavid of meritorious defense..I objected saying to the judge their affidavid as account sated was hearsay and worthless then also said they checked off on the judgement they had no evidence whatsoever..why did I have to prove I could win when they did not..again she said dont try anything you have learned on that website not mentioning but referring definitely to here...She then said dont try to win on a technicality I learned. She said I would have 7 days to file my own affidavid of meritorious defense before she would rule..I need help to put it together please from everyone to put this together to get the judgement vacated...the debt was originally Providian Link to comment Share on other sites More sharing options...
KentWA Posted April 6, 2005 Report Share Posted April 6, 2005 Three things right away that we all need to know. What state and what court and is this affidavt to vacate?If this still concerns vacating just right up a statement that you were never served and you have not lived at the address listed in the court documents for 8 years. Get a copy of your lease/rental agreement/mortgage that shows when you moved to your current address.You should not have to attack the debt directly within a motion to vacate, however it seems this judge is going to push that issue. Did you DV them pre suit or post suit? If it was pre-suit then simply state you lack sufficent information to know if this really is your debt because plantiff has failed to provide information required by Fedreal Law. IF post suit state that you lack information because you have not had the oppurtunity to propound discovery.I would then drag all the case law along you can, if I remember correctly Sherman has many decisions againest them and it would show how they have acted in the past.Be prepared, you may have to appeal this as the judge seems to think he can make up the rules as he goes along. I am not sure if it is proper but you may want to file a motion to strike at the same time on their affidavt of account stated. Link to comment Share on other sites More sharing options...
iwant2getthem Posted April 6, 2005 Author Report Share Posted April 6, 2005 ok..sorry..I live in Michigan..it was in District court....I found out I had a default judgement against me..I had filed a motion to vacate..today was the hearing on that motion...I pointed out to the judge I was never served to be able to defend myself..I pointed out the JDB?plaintiff claimed "they used a reputable service processor so they belive them" They also said they served me CRRR. In the documents they filed with t he court it showed the CRRR was returnede undelivered because I did not live there. I also had sworn statements from my family who have lived there since 1980 stating I have not lived there for over 8 years and that they were never served and a notice was not posted to their door..they have a gate that must be buzzed open to get to their door. The Plaintiff was smug and said well my family should have forwarded it to me. My response was there was nothing to forward and that is not their job. The judge agreed I was not properly served but the plaintiff then said I had to prove a meritorious defense before a judgement could be vacated.....she said not to try and win on a technicallity...she would wait to rule on my motion to vacate until I filed my Affidavid with my affirmative defenses..what a crock of *&(^_) In the default judgement the only evidence presented was an affidavid as account stated..when I brought up in court neither of those were relevant and were hearsay the judge asked me if the debt was mine..I said I dont know because I never received any thing saying it was..she then said provide the affidavid of meritorious defense before she would rule on my motion and not to try technical stuff I larned from a website...if it is my debt pay it..unless I have good help hear and case law I think I am screwed......please help Link to comment Share on other sites More sharing options...
workinninetofive Posted April 6, 2005 Report Share Posted April 6, 2005 Hi,Don't let her discourage you. You might want to PM about this... Link to comment Share on other sites More sharing options...
iwant2getthem Posted April 6, 2005 Author Report Share Posted April 6, 2005 what was said by whom please? the judge or JDB/Plaintiff and about what .txs Link to comment Share on other sites More sharing options...
workinninetofive Posted April 6, 2005 Report Share Posted April 6, 2005 what was said by whom please? the judge or JDB/Plaintiff and about what .txsi would edit out most everything. you can pm some people here.. Link to comment Share on other sites More sharing options...
KentWA Posted April 6, 2005 Report Share Posted April 6, 2005 Get a hold of the court rules, you will want to start with the State Court Rules, then the local rules. Also note that sometime Supurior court rules figure in there if the District court is fully subordinante. Find out what the grounds are for vacating judgements and the procedures for doing so.http://courtofappeals.mijud.net/rules/public/default.aspFrom what you have said so far I think the grounds may be as simple as providing a statement that you intend to fight the suit and have some grounds to fight the suit. That would prevent a defendant from simply getting a Judgement vacated and then in the end get another default judgement. I think you will find that the level your defenses must rise to is minimal. Link to comment Share on other sites More sharing options...
iwant2getthem Posted April 6, 2005 Author Report Share Posted April 6, 2005 ok..got you...the judge asked me if the debt was mine..I said I don't know because I never recieved anything that says it is...the judge then asked me if I did not remember ever having a Providian card...I said I did not recall.....that is when she said I either know or dont know if I had a card and would have to present a meritoious defense in a sworn affidavid within 7 days before she ruled on my motion to vacate...she said do not try to win on a technicallity either from that website...obviously referring to creditinfocenter because the JDB mentioned it specifically..he was all chummy with the judge Link to comment Share on other sites More sharing options...
iwant2getthem Posted April 6, 2005 Author Report Share Posted April 6, 2005 the other thing is the JDB mentioned this site by name and said the defenses were "crap". The judge even said in open court "not to waste her time with technicalities from that internet site" meaning here. My response was the law is the law..I belive they are fighting the motion to vacate because they don't have the evidence and would then have to provide it in court..he said they could get it but would have to buy it from the OC( I dont know if that is true)....I need help to put together an affidavid of meritorious defenses...they even marked on the judgement when they originally got it hat they had no evidence....they served me wrong admitted it but I still have to prove I can win..please anyone who can help... Link to comment Share on other sites More sharing options...
iwant2getthem Posted April 6, 2005 Author Report Share Posted April 6, 2005 I tried to be pleasant witht he judge..their lawyer was an a$$ to me outside but Butt Kissing inside...he specifically mentioned to me outside "that internet website creditinfocenter tactics will not work they are garbage"..I wont comment about the judge but please feel free to make up your own mind....I have to provide an affidavid of affirmative defense before she rules on my motion to vacate..I suspect the plaintiff will fight it because they do not have any evidence..they marked on the form for default they had no evidence but the judge did not care...they admitted I wasnt served and I have to prove my case when they never provided anything..the plaintiff said he could get the info but it would cost him (I dont know if that is tru the account is from 98 but CO in 2000) I really need help..txs Link to comment Share on other sites More sharing options...
KentWA Posted April 6, 2005 Report Share Posted April 6, 2005 iwant2getthem, you have PM Link to comment Share on other sites More sharing options...
Xanathos Posted April 6, 2005 Report Share Posted April 6, 2005 Well I can't help you too much with Michigan laws, but one thing that stood out to me was the amount they're suing for....did they triple the value they are claiming is owed *after* they got this default against you? Once a debt (real or otherwise) is reduced to a judgment, the amount they can tack on in interest is pretty limited.On the topic of a meritorious defense...I would think improper service would be a meritorious defense in terms of getting a judgment vacated. It basically states that you never had a chance to have your "day in court". You aren't asking for permanent injunctive relief here...you're asking for the opportunity to fight something that all sides admit you never had a chance to previously.But if the judge wants more, provide them with this (you'll have to do some research on cases via Pacer if you want to take case law backing up these facts--but facts they are) after cleaning it up for your own situation:When Sherman purchases a junk debt, they buy it on a spool. They are given no contracts. They are given no breakdown of services. More often than not, they don't even come with social security numbers to tie the debts to an individual. They are given a file that has a name, an address, and SOMETIMES a date of birth (not always). Other than that, they know nothing of the debt. It could be real, it could be a mixup in numbers or names, it could be identity theft...nobody knows. Since the numbers seldom match up (even if a debt is real, the way everybody tacks on "fees" as it passes from one JDB to the next convolutes the debt so much that it's impossible to tell if its an accurate total or not), you as a consumer are entitled to see what it is they are claiming you owe for. Their word simply isn't good enough (plaintiff in a civil case has the burden of proof by a preponderance of evidence). Your meritorious defense would be that it's Sherman's burden to prove the debt is not only yours (which is in serious question) but that the total amount owed is correct. So what you should have been saying isn't just "I don't know if this is mine or not" but rather "NOBODY knows if this is mine or not. I don't know because the numbers look wrong to me, Sherman doesn't know because they're too cheap to keep accurate records, the hospital doesn't know because all they have is very basic information on a computer screen which could easily be--and to me seems to be--in error, the judge who issued the default doesn't know because he never actually heard the case, and this....individual....to my left sure as heck doesn't know because if he did he wouldn't be shoving rhetoric down everyone's throat in an attempt to cover up the fact that he has no paperwork regarding this issue--and if he did, he'd be showing it by now". Link to comment Share on other sites More sharing options...
DocDon Posted April 7, 2005 Report Share Posted April 7, 2005 Exactly how did this attorney know that you frequent this board? I see no identifying information in your profile.This attorney just so happens to also browse this site and of all the usernames for Michigan, know that you were "iwant2getthem"?And the judge had negative things to say about this site too?I don't buy it. Link to comment Share on other sites More sharing options...
Recovering Attorney Posted April 7, 2005 Report Share Posted April 7, 2005 How old is the judgment? What is the SOL in Michigan?The judge was not wrong in asking you for a meritorious defense. To vacate a default judgment, you need to show BOTH a reasonable excuse for your default AND a meritorious defense. So, she properly refused to vacate based only on the argument that you were not served properly. Now, improper service is an affirmative defense. And if the SOL has since run on this debt, the plainitff would be S-O-L if the judge ultimately ruled in your favor. So, while you are making a technical argument, here is how I might make it in a way the judge will understand:1. Go pull the original court file. You need a copy of the affidavit of service and a copy of the lawyer's affidavit of regularity. 2. Write the judge and tell her you want a hearing on the service issue. You want a subpoena for the process server and the lawyer who certified the default so you can cross examine them. As was stated, get some documentary evidence that shows where you were living. Say you wish to call your parents so they can explain under oath about the service. 3. Get a copy of the complaint and do a proposed answer. We can help with that. Include the improper service ( The court lacks jurisidiction over teh defendant), include plainitff's lack of legal capacity to bring teh action ( check and see if they are authorized to do business in Michigan). Did they sue you in a county other than where you were living at the time? If not, they violated the venue requirements of the FDCPA and that is a defense. Copy the FDCPA so you can show it to the judge. 4. You need a fallback. Judges hate vacating judgments. You could be right about the service, but if it was your card and the judge believes it, then she will be loathe to open it if she thinks youwill ultimately lose. So, be prepared with a settlement offer. Offer the $$ in return for a vacation of the judgment and a discontinuance and mutual release, so you can get it off your CR. The judge may be amenable to helping you compromise the judgement amount if you do. Link to comment Share on other sites More sharing options...
squeeky Posted April 7, 2005 Report Share Posted April 7, 2005 The facts in this case are not what the issue is. The issue is much much bigger. No facts can or will win this vacating of judgment. I know this, that is because it is not about the facts. An attorney needs to contact me immediately!!!! Link to comment Share on other sites More sharing options...
iwant2getthem Posted April 7, 2005 Author Report Share Posted April 7, 2005 DD...he did not say I was on the site specifically by name..what he said was "not to try and use the garbage internet arguements from creditinfocenter..they are garbage and do not work"....it was BS..the judge said I was not properly served (she said I wasn't served at all) but before she would vacate the judgement I had to show a meritorious defense..my response was if I win they have to prove with documentation I owe the debt..she said "not to try that technicality stuff I learned from the internet"..she needed to see a meritorious defense before she would rule on the motion..it seemed she was working on their behalf because she was chummy with the lawyer...they even signed in their default judgement that they had no evidence at all and signed it..they used affidavid of account stated...I tried to tell the judge if I had been served I could have just showed up and they had to produce the evidence not me..they deliberately mis-served me so I could not show up..I need help please...I need to file a meritorious defense affidavid for her to vacate the judgement Link to comment Share on other sites More sharing options...
DocDon Posted April 7, 2005 Report Share Posted April 7, 2005 Wait a minute.You said the judge told you, "not to waste her time with technicalities from that internet site".Technicalities? You mean proper procedure? You mean Michigan Service of Process Law and Court Procedure Rules???You know a court clerk cannot enter a default judgment without an article of indebtedness? Says so right in the law. If the judge don't like it, she can get off the bench.It's a waste of her time to exercise your rights? All said and done, file a complaint against her with the Judicial Tenure Commission.Do not stand for this abuse of power. It's one thing to lose in court, it's quite another to negate rules because she thinks they're stupid. Link to comment Share on other sites More sharing options...
reverserguru Posted April 7, 2005 Report Share Posted April 7, 2005 http://courtofappeals.mijud.net/Digest/newHTML/19709221.htm#19709221003Default - Set Aside - Standard - Good CauseA motion to set aside a default may be granted only if good cause is shown and an affidavit of facts showing a meritorious defense is filed. Good cause sufficient to warrant setting aside a default can be established by a substantial defect or irregularity in the proceeding upon which the default was based, a reasonable excuse for failure to comply with the requirements which created the default, or some other reason showing that manifest injustice would result if the default were allowed to stand. MCR 2.603(D)(1) Link to comment Share on other sites More sharing options...
iwant2getthem Posted April 7, 2005 Author Report Share Posted April 7, 2005 ok...the default judgement was from March 16, 2004....I have a cooy of whatever was in the file at the court....the judge agreed they did not serve me..it was flagrant almost intentional because they immediately asked to garnish me at a different address....if I had been served I could have just showed up and said nothing because they had no evidence..the judge kept asking me was it my card and I kept saying I don't know nor do I recall but they have to prove it was not I have to prove it was not...so I think she thought it was my card..they are fighting hard because if it is vacated then they have no evidence..they claimed they could get it but I think if they could they would have had it today in court I wish I would have said that....if they did they would have included it with the file.....I believe the debt went into default in 2000 in march maybe I dont even think that is correct......sol in MI is 6 years so it would not be rightfor another year....as for you saying about my asking the judge to hold a hearing, I thought that is what my motion to vacate was here.....I nened your help..txs... Link to comment Share on other sites More sharing options...
reverserguru Posted April 7, 2005 Report Share Posted April 7, 2005 http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20010817_C220783(73)_158O.220783.COA.PDF Link to comment Share on other sites More sharing options...
DocDon Posted April 7, 2005 Report Share Posted April 7, 2005 Michigan court rules state a clerk cannot enter a default judgment without an article of indebtedness. I'll find it and post it here.The whole thing was bogus from the start. Link to comment Share on other sites More sharing options...
iwant2getthem Posted April 7, 2005 Author Report Share Posted April 7, 2005 The judge was "chummy " with the lawyer..there was no articles of indebtness filed..only an "affidavid" and "account stated"....I told them the affidavid was hearsay as was the account stated because I had no assent or prior dealings with the JDB..they injured themselves..I belive she is afraid if it is vacated they have no proof (the actually checked the box ont eh default that says they have no proof"...they wanted/needed to get a deafault because of their lack of evidence..I wish I had said to the judge if I had been served and showed up they had presented no proof and I would have asked to dismiss..I thought I was very prepared and have been on here all night for days but I got killed in there..I don t know how to do this stuff and dont even know how to do my affidavid..obviously I need to site case law and add it to my affidavid or she will just call it a day...she seemed to think well it is my debt and I should pay who cares what the law says..I even said to her i could draft a complaint and say she owes me $50k and send it to her relatives and get a default and then say she has to prove it is not hers...she said not to try to win on technicalities...I really need help on pretty much how to do this line by line...if it is vacated then they have nothing unless they can get it from the OC but if they had it why didnt they include it in ttheir complaint instead of their garbage... Link to comment Share on other sites More sharing options...
DocDon Posted April 7, 2005 Report Share Posted April 7, 2005 Surprised they didn't make a lunch date right then and there. Link to comment Share on other sites More sharing options...
iwant2getthem Posted April 7, 2005 Author Report Share Posted April 7, 2005 they might have the way they were acting...please whatever help you can give me to craft a viable affidavid with my meritorious defense would be beyond appreciated..I am sure I WILL NOT ONLY NEED TO QUOTE THE LAW BUT HAVE IT PUT IN FRONT OF HER STAPLED TO MY AFFIDAVID.. Link to comment Share on other sites More sharing options...
iwant2getthem Posted April 7, 2005 Author Report Share Posted April 7, 2005 trust me I wanted to say the same thing to both of them..if I get the judgement vacated I do not think they have any proof and that is why they are fighting it...I could use their own statement against them....belive me if I win the case I will tell him I learned everything from heere and everyone helped me and said to pass it on to him to stick it up his a$$....I am now completely lost..does anyone have a template of what an affidavid of meritorious defense looks like? also, does anyone know can they actually get the info from the OC Link to comment Share on other sites More sharing options...
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