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default judgment, then filed motion to vacate. now what?


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This is probably long. sorry.

A very kind person on here has helped me to write a motion to vacate the judgment, and to file an answer to the original complaint. I have an good excuse for not answering the summons, and I have a meritorious defense.

now I am just throwing this out here for anyone else who might have advice and/or opinions for me. I read this board constantly.

1. Who is suing you?

erin capital management

2. For how much?

4920

3. Who is the original creditor?

Household

4. How do you know you are being sued?

my checking account has a restraint

5. How were you served? Were you served?

affadavit of service says they served at an address that is a vacant house with boards on the windows. No one has lived there for ~3 years

6. What was your correspondence (if any) with the people suing you before you think you were being sued?

none

7. Where do you live?

NY

8. When is the last time you paid on this account?

2002

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or B) looking it up online (many states have this information posted daily).

have a date set next week for judge to hear my motion to vacate

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

no

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now.

no

12. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

no

13. Does your summons require a response? (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming.

14. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits?

I pulled a copy of the judgment from the court. There is nothing in the file from the OC. There is a signed statement from the "assistant secretary" from the CA

I was sued by these people without ever receiving anything from them. I did have a Household card from 2001 to 2002 but I was robbed and it was stolen from me in 5/2002.

I reported it stolen to Household over the phone and I have a police report from the robbery. I told them to close my account, paid them the balance ( which was only a couple hundred $$ at most) and never recieved a new card or anything else from them again.

I didnt even know that credit reports existed back then.

The complaint says I failed to make payments after 10/23/2002. Why 5 months after the card was stolen.

What should I expect when I go court? Can anyone here think of anything that might help me in this situation?

why the shoddy service? I would have answered the summons.

Ok well thanks for reading.

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I'm no expert but wanted to comment.

This is CRAP and makes me really angry. I'm really glad you still have your police report. WTF are they doing, serving an abandoned house? Argh!! :evil:

Let us know how this goes. Good luck to you.

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Thanks for the comment.

I feel the same way. If they have a bill or something that says I owe them money, then why not just send that to my actual address? This is a house that I lived at for 1 year when I was in college. I moved out in '02.

They were able to find my checking account, so why not just use that address to serve me? I would have answered, or went to a lawyer, or done something.

This is really bad is it not?

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Based on what you've said, it seems like you might have a case. I'd also make sure that you have more than just the lack of proper service, while this is enough to get it thrown out alone.

Make them prove they had no paperwork, it's past the SOL, whatever you would normally use to fight.

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Ask them to provide it. I'm ot sure if you can ask for request for production of documents (or discovery) in a motion to vacate, but this is something the code of civil procedure should tell you.

You might just state that they provided no evidence that the debt was yours in your motion.

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I just checked my credit report and there is a default judgment from this same plaintiff for a household account also. I going to file and order to show cause tomorrow in manhattan I'll let you know how it goes. Maybe we can keep in touch and share strategies. I have some experience with LR 7 for a citibank account, I hope this firm is just as incompetent.

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Obviously you were never given service of process either?

I would like to see your order to show cause . I bet its easier to file that order in manhattan then it is in buffalo.

The court here is not very user friendy. there are no template forms for motions and orders and things of that nature. just a room with a bunch of people standing behind desks.

Lets definitely share strategies. Did they grab your bank account too?

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  • 2 weeks later...

OK- I just got back from court. Im really pleased.

The judge granted my motion to vacate. The plaintiff didn't show up.

Now that I have a little experience under my belt I will be glad to answer any questions that anyone has about doing this in western NY.

for me, the process was very different than what I read from others here.

I asked the judge if he could give me any paper work to get my bank account unrestrained. He said they didnt have anything like that, and that I would need a lawyer, or he would sign something if I write it up, or maybe I can " find something on the internet"- eluding to the fact that I I have found documents on the web in the past.

Thanks to recovering att., without his help I would never have gotten this far.

So, anyone know how to get a bank account unrestrained? judge said he would sign it for me, and the bank gave me a number to fax the signed doc. Just need to get the wording straight.

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Thanks Recovering. I figured that much, but does it have to be worded any special way? any advice?

I can't find any instance on this board when someone had to write one if these up.

so would might it look like this?:

Caption

Order to Unrestrain Bank Account

Order to Unrestrain Bank Account #12345 at Bank ABC etc. because the default judment taken on xx/xx/xx has been vacated and thus does not exist.

x________

me

I sign it and then send it to the judge, and he signs it and returns to me. then I fax to bank.

Anything special in the body of the order? what words do they use in NY? thanks again

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I found this sample for an order on a lawfirm's website.

IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND

ANNA ANDERSON *

Plaintiff, *

v. * CASE NO.: 24-C-03-009564

LOUIS ANTHONY SLAVOTINEK, JR., *

Defendant. *

* * * * * * *

O R D E R

Upon consideration of the Defendant's Motion to Compel, it is this _________ day of __________, 2005, by the Circuit Court for Baltimore City, Maryland, hereby

ORDERED, that the Defendant produce complete and executed Answers to Interrogatories and a Response to the Request for Production of Documents within ________ days; and it is further,

ORDERED, that Plaintiff’s First Request for Admissions are deemed admitted.

COPIES TO:

Ronald V. Miller, Jr., Esquire

Laura G. Zois, Esquire

Miller & Zois, LLC

Empire Towers, Suite 615

7310 Ritchie Highway

Glen Burnie, Maryland 21061

Susan A. Goddard, Esq.

Allstate Insurance Company

10 N. Calvert Street, Suite 444

Baltimore, Maryland 21202

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Any opinion on this? think it might do the trick, and the judge wont laugh at it?

CITY COURT

NEW YORK STATE ERIE COUNTY

--------------------------------------------------------

, Plaintiff :

: Index #

vs. :

:

Defendant :

-------------------------------------------------------

ORDER

Upon hearing the defendant's Motion to Vacate Judgment on July 6, 2006, it is this _________ day of __________, 2006, ,by the City Court for Erie County, New York, hereby

ORDERED that the defendant’s motion to vacate default judgment is granted, and it is further,

ORDERED that any restrain on bank account #xxxxx at ABC bank be lifted. And it is further,

ORDERED that any money in the hands of the Marshal, Sheriff or thedefendent seized from said bank account be paid in to court according to law.

______________________

City Court Judge

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OK so here is the "order" that I used to get my bank account restraint lifted.

I dropped it off at the court, and then the clerks sent it up to the judge to have him sign it. I picked it back up the next day from the clerk signed and "conformed".

Thanks again for all the help

CITY COURT

NEW YORK STATE ERIE COUNTY

--------------------------------------------------------

plaintiff : Index #

vs. :

:

, Defendant :

-------------------------------------------------------

ORDER

By notice of motion dated _______, 2006, and upon hearing the defendant's motion to vacate judgment on_____ 2006, it is this _________ day of __________, 2006, ,by the City Court for Erie County, New York, hereby

ORDERED that the defendant’s motion to vacate default judgment is granted, and it is further,

ORDERED that any restrain on bank account ______________be lifted, as permitted per CPLR 5240.

______________________

City Court Judge

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