Need Advise Re: Vacating a Judgment

[ann l]

Hi all + I need some good advise. This story may take awhile; I know that's not good -- I hope I don't lose you.

I am in the process of filling out the paper work to vacate a judgment and I need to know if there is anything that I don't know.

Here are the facts: First I live in NJ, after separating from my now ex I wanted to try to regain my credit that he destroyed. I applied for a Capital One CC and was thrilled when I got it with a $500.00 limit. I didn't know it then but catastrophe was waiting, once again, around the corner, and I had to use the card to buy food...within a few months I was unable to keep up with the payments since all my money (I'm a nurse) was beginning sucked up by lawyers and trying to fix all the damagethat he had done (i.e.: Loss the house, repossession of our cars, kiting my checking account, stealing 17K from my sister, lying on to the IRS [which cost me $6k to defend myself as an innocent spouse], embezzling 150K from his company...talk about pathetic, and if you can believe all that, he now has a great job and earns 250K/year of which I only get 1.5K/mth with 4 kids:evil:).

Anyway, after a while a CA tried to contact me...I ignored all the calls until one day when I answered my cell with "What do you want". He introduced himself, company and purpose...I told him to stop calling me...he repeated what I said and hung up, it was all of two minutes. Weeks later I received a court summons, I did not want to deal with them and asked my husband (new one) to call Capital One and figure out a payment arrangement with them but not to deal with the CA ( I had read once that you should always pay the original creditor).

He called Capital One and gave my account number; unbeknownst to him he was directed to the CA. He made an arrangement with them, again thinking that he was talking to Capital One, to pay $453.00/mth (by now the debt went from $500.00 to $1.4K and change) and sent $15.00 to the court for the settlement. I was surprised that they talked to him without my permission, but I let it go. Then one day I got a call from the CA asking if the payment went out...I was totally confused and that's when I learned that my husband had dealt with them and not Cap. One (The thing is that they never introduce themselves as the CA when you get transferred...I think that that is misrepresentation). Anyway, I refused to pay that amount to them and told them what I was willing to do...he refused, telling me to pay the whole thing or the three payments that was originally agreed to. I told him that he had no right to refuse my payment schedule and anything else would send me into default. He still refused and kept making fun of me in a way that was just under the scope of the FCA. I felt bullied and told him to go to hell...I'd see him in court.

At that point I called Cap. One and after awhile learned not to give out my account number...that only lead me back to the CA. Finally, I got through to someone...told them what had happened. I was told that they would put a C&D order on the CA and not to worry, they would take my account back into their recovery dept... I should call back in a few days, I did. The employee told me he still needed to work on it and call in a few more days. I did and was told the same thing...after that and for two solid months I called and never once received a call back. Then in August a received a judgment in the mail!!!! I was fit to be tied and called again. Ironically, this time I got him on the first try and told him what had happened. He gave me a number to call and told me that it was the house lawyers and I should tell them the story. He said that they would then work out an agreement and lift the judgment. I was relieved, and tried to call that number for about three days...I finally got through. Guess what folks...it was the same CA. OMG!!!! I called Cap. One and would not stop until I got a "supervisor", I told her what had happened...beginning to end. She questioned the employee and came back and would not admit nor deny that he had giving me wrong information,(this is itself was a admission of guilt) and told me there was nothing she could do. I said that was unacceptable and refused to hang up...she finally gave me the address of "Executive Response" and told me a could file a written complaint.

I wrote a four page letter detailing everything...I waited 3 weeks for a response...nothing. Again, I called Cap. One and after 5 times was told that they just got it and it would take another few weeks. I again called back 3 weeks later and was once again giving the run around. I threatened to go to the nearest Cap. One bank and stage a sit in on the counter if they did not let me speak to someone...she actually believed me and put me through to the Executive Response Dept (I was told that you could only write them). I spoke to a women-- gave her two hours and then a week to absorb my complaint and talk to her "seniors"...she finally answered the phone two weeks later, with the typical "there is nothing we can do...the only thing in the computer is that he put out a C&D, not that it was being taken back into Cap. One. There will be a letter sent to the CA regarding this and a letter in the employee’s folder stating what has happened".

I gave up and call the CA explaining everything. I was told I could make a full payment or two partial ones. I said that I would only agree to do this if he agreed to write me a letter vacating the judgment. He refused over and over again. I told him good luck finding me, my place of employment and my bank...it was smarter to agree to vacate the judgment and hung up on him. I called back right away and asked to speak the the "lawyers" of the firm...of course that was not going to happen, but I did get a paralegal. I told her what had happened a moment ago and prior to that. She also said that they could not vacate and that the payment schedule that I was giving was the best they could do...she asked me if I still worked at so and so and I said no, although I did, and if I still banked at so and so, which I didn't. I nicely refused to tell her, and after awhile she told me that I could call the court give them my docket number and work out an arrangement with the court officer because they usually take less.

I called the courts and worked out an agreement with no problem at all

($100.00 for 15 months). The best part is that I was able to do it before the writ was passed and my salary garnished (since they somehow knew where I worked) and I already sent in my first payment. I figure by the time this gets to court I will have three payments under my belt...which fares well for me.

Since then I have called the CA and Cap. One at least 5 times each...each time leaving a detailed message regarding what I wanted...which is a copy of the letter that Cap. One sent to the CA and put in the employees file...or at least something stating that he was written up. Guess what...radio silence. So, I guess it is safe to say that I will not get either of those.

My plan is to go into court with the case that I was:

1. GIVING WRONG AND MISLEADING INFORMATION FROM AN EMPLOYEE OF CAPITAL ONE'S RECOVERY DEPT. (I have document all names and most times and dates of phone calls) LEADING TO THE JUDGEMENT.

2. Never sent a letter from the CA regarding the debt.

3. Sent a court notice without any DV.

4. CA made a deal with my husband but never mentioned that they were the CA and not Cap. One.

5. Spoke to me in a manner that was inappropriate and not allowed under the FCA.

6. I had to be the one that contacted them each time...from March thru August when the Judgment came.

7. Cap. One never returned my calls for 2 months, from when I first contacted them i early June until August...again after the judgment.

8. I had made every attempt to pay this debt and without negotiating a lessor settlement, but was denied at every turn.

9. They refused to agree to terms I could manage instead they were setting me up for default.

10. I contacted the Court Office even before the writ and I have made payments on time.

I am not looking for them to release me from the debt (although that would be nice) I only want them to vacate the judgment and let me get my credit back. What is the big deal anyway...you would think that I was asking for their first born...no thank you -- I was already married to Satan...I don't need his spawn!

Sooo..any advise...did I miss anything?

[montanatim]

Proof, proof, proof. If you have the proof. You may have room to wiggle on the misrepresentation to your husband, the why they spoke to you, and not mitigating their damages.

Cap 1 is out of the picture, the CA supposedly owns the debt while all this is happening, no? Cap 1 was under no obligation to even speak to you. If they made promises about a debt they didn't own at the time,and then had the odasidy to not follow through with those promises, I'm thinking "oh well"

"...after a while a CA tried to contact me...I ignored all the calls until one day..."

Is the amount they claim in accordance with the cardholders agreement? If you ignored this long enough the interest would surely add up. Get your cardholders agreement and do some math to be sure the mitigation angle is valid.

You said you made some $400+ payments, where is the accounting for these? What did the other side enter as evidence? Now you pay 15 payments of $100. each?

One final question; Why is your Ex not in prison? Surely $150,000 is a felony where you live too.

[ann l]

The only proof I have is their taped conversations...which I am sure that they will not give me.

As for the Cap. 1...true maybe they did not own the debt...but surely they have to be responsible somehow for telling me that they would take it back and then keep me believeing this for two months. If they had said no to begin with I would have worked out something with the CA and not be in this mess.

I will definately do some math...did I mention I HATE math

No, I did not make any payments...my husband had agreed to make 400 + in payments when he thought that he was talking to Cap 1...then the CA called asking where the payment was (a day before it was even due)...that's how I found out that my husband had not deal with Cap 1 but was transferred to the CA. I have only made one payment so far and that is to the court officer.

I do not even care about the money...I actually can afford to pay them off...I just won't out of hate for them...they can wait. I am not asking the court to overturn anything but the judgement. I am hoping that the CA gets the notice and decides not to show up because I am not fighting paying them...just the judgement and I win by default...besides who the heck wants to listen to me go on and on?

As for the ex....why is he not in jail? A question that I ask over and over again. He is one of those people that can get away with anything and nothing ever happens to him. After all the crap he's done...his family treats him like nothing ever happened and he did nothing (the blood is thicker then water thing) and they don't speak to me...even though he conned his parents out of their lifes saving of 150K and lost it. As for the embezzlement-- the company that he stole that from did not want to press charges because it would then open them up to a ton of investigations and they would lose clients. If you have ever watched office space that it exactly what he and a bunch of other guys in different brokerage houses did. He should have been arrested for kiting my checking account also...but I didn't press charges because I need child support. He did however get in trouble from the IRS which gives me a little satidfaction...but not much!

[montanatim]

I hope you prevail, just cause I know it would feel soo good. I am still a doubting Thomas however.

[ann l]

I hope I win too...I've put way too much time and effort into this already and it's too late to let go of the Tigers tail now. Anyway, I will keep you posted...I know a good win will warm you up out there in those cold mountains...but it must be beautiful...I always wanted to visit.

BTW: What do the green squares mean? And do they change you title "student of credit" etc...with the amount to post you do?

[montanatim]

Good question, I have seen that the folks with a bazillion posts to their credit have a lot of 'em. Go to OFF TOPIC and ask there, I'm sure you will get an authoritative answer from one of them, several cruise there.

[pointman]

Sounds like you have a plan in place and I hope it all works out for you. You mention a lot of phone calls. Assume they have recorded your calls. As much as I agree with you, telling the schmuck to "go to hell" could have been brought up against you and Joe Schmuckatelli would have looked like the angel in court. Let them be the ones to violate. Don't portray yourself as hostile and uncooperative; they'll just pull that out to explain to the court why they couldn't reach an amicable resolution with you.

If you plan to communicate with the CA anymore, do it all in writing. If you DO communicate on the phone, record the calls (if allowed in NY) or at least tell them you are recording. They'll either not talk to you or they'll behave entirely different.

As for the green blocks, I'll explain this here since this is your thread. The green blocks represent a member's reputation. If you Approve or Disapprove of what you read, or someone's comments help you or offend you, you can click the scales on the header and give them some rep points or negative rep points. (Use that second option sparingly and after much thought ) The member will be able to see who left the kudos and to what thread/post they relate. The blocks increase in number as the rep points increase. (Not sure what the ratio is) The status under your username changes with the amount of posts/participation.

[Amerikaner83]

I agree with both Pointman and MontanaTim.

Proof is what you need. I highly doubt they'll vacate the judgement out of the niceness of their hearts!

My plan is to go into court with the case that I was:

1. GIVING WRONG AND MISLEADING INFORMATION FROM AN EMPLOYEE OF CAPITAL ONE'S RECOVERY DEPT. (I have document all names and most times and dates of phone calls) LEADING TO THE JUDGEMENT.OK... capital one is not subject to the FDCPA, so unfortunately they can "mislead" you all they want - I doubt you have anything actionable against them, legally.

2. Never sent a letter from the CA regarding the debt.Can you PROVE this? All they have to do is prove that they have measures in place to send letters, no violation.

3. Sent a court notice without any DV.Without DV...you requested DV within 30 days? If not...then they don't have to.

4. CA made a deal with my husband but never mentioned that they were the CA and not Cap. One.Doubt they have to - Cap1 doesn't sell their debts - they assign them to CAs to collect. Lemme guess - Cal1 was listed as teh plaintiff right?

5. Spoke to me in a manner that was inappropriate and not allowed under the FCA.You mean FDCPA? Again, prove it. Request Discovery...they'll tell you they don't have the call transcripts. Too bad.

6. I had to be the one that contacted them each time...from March thru August when the Judgment came. Nothing wrong with that. They know that eventually you will contact them.

7. Cap. One never returned my calls for 2 months, from when I first contacted them i early June until August...again after the judgment.Same as above. Shady but not illegal.

8. I had made every attempt to pay this debt and without negotiating a lessor settlement, but was denied at every turn.They didn't like the amount you were trying to negotiate for.

9. They refused to agree to terms I could manage instead they were setting me up for default.Morally repugnant but legally allowed.

10. I contacted the Court Office even before the writ and I have made payments on time.That's good...but how will that get your judgement vacated?

[Moriah4]

I didn't see where she ever recieved proper service of the summons for the court appearance for the judgement. Did I miss it? If there wasn't proper service then that is grounds to have it dismissed.Isn't it?

Moriah

[ann l]

Exactly what is properly served? I got a summons to appear in court...another to change the date (by this time I thought that I was workking with Cap One) and then a letter from the court saying the judgement was passed....did they miss a step?

If Cap One just asigns CA and does not sell the debt, then don't they still have the power of the debt.

It's not like the wrong leg was removed and it can't be put back on...if they wanted to they could vacate the judgment...they're just begin bastards.

If you can tell me that Cap One is still involved and always has been since they are the plaintiff ...then I am not finished with them!

Other then that I will go and play on the judges sympathy...divorced mom of four...poor, good natured, mislead nurse...and I'll smile and bat the baby greens till the fall off.. .maybe a little too tight shirt... HHMMMMM Please dear God let me get a decent judge.

Anyway, I am hoping that since I am doing the right thing and those guys are bastards, even if they did nothing illegal that the judge will see that and vacate it.