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To object or vacate in court today?


lynfaber
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My bank account was garnished a couple of weeks ago, and my bank finally sent me a copy of the Writ of Garnishment.

So, I'm in Michigan, the OC is Providian - credit card, assigned to Great Seneca Bank, and the lawyer is Wolpoff & Abramson. The amount owed is $1000, and the Writ says "non-periodic garnishment of $370 & $50 lawyer fee" - which is what was taken out of the bank account. My first question is, does this mean they're done taking money out? That is what non-periodic sounds like, but you never know.

And most of all, this judgment/Writ is bullshite. I was never served. The court says that they have a record of my dad signing for it at his address (hasn't been mine in 7 yrs) and then returning to sender saying that I no longer live there, and then after that they posted something on his door. Kinda funny how they could find my real address for my Writ and also my bank account info, but not my address in time to serve me. Also - I have a joint bank account with my fiance, but all of my income is unemployment. Are they allowed to take out of there, even if my only income is my unemployment wages?

So, I'm going to court today to get a copy of the judgment and I don't know what I should be doing. Should I object, or should I try to vacate the judgment?

Thanks for any help, I want to try and look somewhat knowledgeable. . . :roll:

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It's a clear case of improper jurisdiction if you are in a different county then your dad's address they "served" at. So the judgment would be VOID and they will have to return the garnished $$.

They MUST sue you in the jurisdiction YOU LIVE, otherwise any judgment is illegal and VOID.... ie: doens't even exist legally.

If it was in the same county (same court jurisdiction as you actually DO live) then you would want to file a Motion to Vacate Judgment, citing improper service and violation of your constitutional right to due process.

________

Herbal vaporizers

Edited by uwackme
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It is in a completely different county than where I live! So now what the heck do I do?

Sorry for being so clueless on this by the way. I've tried reading and searching for this topic on here but can't find anything relevant to my case, I really appreciate the help.

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Contact the clerk of the court they DID file in, ask for instructions. You will probably file a Motion to Vacate the judgment (even though it is VOID for improper jurisdiction) so the judge will rapidly grant vacate... AND in the motion ask the judge to immediately order the ahole's to REFUND the illegally garnished funds from your bank.

Point out that this is a clearly WILLFUL act of fraud on the court. Since they KNEW enough about where your were to find your BANK, clearly they could have found YOU and properly served and summon'd to the correct court. Failure to do so strains credulity in thier claiming otherwise.

This also seems to be a FDCPA violation for taking legal action they are not LEGALLY allowed to take... suing outside YOUR jurisdiction in order to obtain summary judgment under false pretenses.... $1K violation. Collection's atty's ARE debt collectors in the eyes of the FDCPA.

Then go over your CR's. You DID dispute the debt in your DV? If so did Citi mark your CR TL with status "disputed" or "disputed by consumer"? If not now you have FCRA violations... $1K per, is it on 1 or all 3 CR's check all three CRA's. Get your CR's by PAYING for them directly... online or phone DIRECT to the CRA to be MAILED hardcopy to you. No online CR, no "FREE" CR, etc. You need the hardcopy to present to a judge at trial.

But you need to strike hard while the iron's hot on this. $11K is alot of cake baby, you need serious offsets for counterclaims.

Beyond that, when it does get to trial, avail yourself of all plausible affirmative defenses, etc. A new example courtesy of the ahole's.... doctrine of UNCLEAN HANDS as they've used illegal methods and unconscienable means in attempting to collect a debt.

________

Honda RA300 specifications

Edited by uwackme
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When was the judgment entered?

You will first want to make a motion quashing the writ, if you can.

Depending on when the judgment was entered, you will want to move to vacate. In most cases, you need to show 1) a valid reason for not answering the complaint and 2) a meritorious defense to the action. Here, you might argue the wrong address, but get ready to attach proof ( such as your driver's license, phone bill, other indicia that shows where you lived at teh time of the suit. Get your dad to sign an affidavit saying you did not live with him on the date of service. You will also want a copy of the affidavit of service and affidavit of regularity filed by the plaintiff, so you can point out the errors.

As to the meritorious defense, cite 1) lack of personal jurisidction ( improper service), 2) improper venue per 15 USC 1692i and 3) any other relevant defense such as statute of frauds statute of limitations, etc. You may have FDCPA claims against the lawyers, but those are not a defense to your action. If you want to cast it as a counterclaim against the plaintiff since W&A is its agent, you may get a judge to listen. But again. the SOL on FDCPA claims is 1 year, so you may be out of luck there.

Get to the courthouse and get a copy of everything in the file. That is your first move. Can't say your motion will work, but it's worth a try.

I might close your checking account and have your g-friend give you a POA on hers, so you can be in the shadow.

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