bobp1027 Posted December 2, 2007 Report Share Posted December 2, 2007 Hello all,I live in Illinois and I was sued earlier this year by a collection company for a car that was repo'd at the end of the lease back in 2003. I went to court and the case was dismissed because the plaintiff didnt show up. Now I received a notice in the mail saying that the collection company is petitioning the court to once again vacate the judgement on the grounds that I didn't show up in court!! I was there (twice!!) They didn't show up! I am so angry right now I could scream!! Can I sue this Collector? I am scheduled to start a new job in a couple weeks and taking time off so soon to go to court is not the kind of impression I want to make! Please help! Link to comment Share on other sites More sharing options...
montanatim Posted December 2, 2007 Report Share Posted December 2, 2007 was it dismissed with prejudice? Link to comment Share on other sites More sharing options...
brokeinok Posted December 2, 2007 Report Share Posted December 2, 2007 I'm a little confused about this. Hello all, I live in Illinois and I was sued earlier this year by a collection company for a car that was repo'd at the end of the lease back in 2003. I went to court and the case was dismissed because the plaintiff didnt show up. Do you have the papers? Was it dismissed with or without prejudice? That makes a difference. Now I received a notice in the mail saying that the collection company is petitioning the court to once again vacate the judgement on the grounds that I didn't show up in court!! I was there (twice!!) They didn't show up! I am so angry right now I could scream!! Why would the collection agency want to vacate a judgement? A judgement means they are getting money from you. If the case was dismissed, there is no judgement. I believe that they would have to file a whole new action since the first was dismissed. Again, the with or without prejudice would factor into this. Can I sue this Collector? I am scheduled to start a new job in a couple weeks and taking time off so soon to go to court is not the kind of impression I want to make! Please help! If they are indeed taking you to court, you need to find out. Worry about suing them for violations after you know exactly what is going on. Is this a form letter from the CA? Does it have a case number? If so, you need to call the court and find out. More info on exactly what happened in court, what the judge said when it was dismissed and exactly what this most CA letter says would help answer your question better. Link to comment Share on other sites More sharing options...
nascar Posted December 2, 2007 Report Share Posted December 2, 2007 If the case was dismissed, there is no judgement. Yep, someone is confused. Link to comment Share on other sites More sharing options...
Lecasbas Posted December 2, 2007 Report Share Posted December 2, 2007 Original post by: brokeinok Why would the collection agency want to vacate a judgement? A judgement means they are getting money from you. If the case was dismissed, there is no judgement. I believe that they would have to file a whole new action since the first was dismissed. Again, the with or without prejudice would factor into this. Any Court decision is a judgment. This one just happens to favor the Defendant. Why couldn't the Plaintiff ask to have a judgment vacated, especially if it didn't appear. It may have had a reasonable excuse for not being in court - no different for the Defendant.In fact, the "judgment" may be "with prejudice" and this is the only way the Plaintiff can re-activate the action.I am no friend of the CA's, just being the devil's advocate. Link to comment Share on other sites More sharing options...
bobp1027 Posted December 2, 2007 Author Report Share Posted December 2, 2007 I should clarify- I was mailed a "Notice of Motion" that the CA is moving to vacate the dismissal for want of prosecution and enter ex-parte judgement in favor of the CA against the defendant (me) for failure of defendant (me) to file an appearance. I was there, the plaintiff (CA) didnt show up. The case was dismissed when the plaintiff failed to show. Not sure if it was dismissd with or without prejudice. Link to comment Share on other sites More sharing options...
brokeinok Posted December 2, 2007 Report Share Posted December 2, 2007 Yep, someone is confused.judgement meaning a monetary award. dismissal of the claim is a ruling. Link to comment Share on other sites More sharing options...
bobp1027 Posted December 2, 2007 Author Report Share Posted December 2, 2007 I should further clarify that this is a notice of motion. Nowhere does it say that I must appear in court. What concerns me is that the motion states that the CA is seeking to vacate the dismissal and enter "ex-parte judgement" in favor of the CA for the sum they are seeking. "For failure of defendant to file an appearance in court" I was in court when the judge dismissed the action because the ]CA's attorney didnt show!! Just an aggravating situation that I thought was over. How can they do this when I am on record as being in court when the case was dismissed?I am so glad I found this forum. Thanks to everyone who has responded. I appreciate it more than you know. Link to comment Share on other sites More sharing options...
brokeinok Posted December 2, 2007 Report Share Posted December 2, 2007 I think your best bet at this stage is to take that notice and go down to the courthouse. Find out if they've actually filed anything and see what the clerks say. If they sent the notice but haven't filed, it may be considered a violation. The court records should have a note that you were present so I wouldn't worry about that part. Link to comment Share on other sites More sharing options...
appluvr Posted December 2, 2007 Report Share Posted December 2, 2007 I am assuming you initially went to court Pro Se, when the Plaintiff failed to show. What the CA is likely referring to then, when they say you "failed to file an appearance" is some states (like Florida) require you to file a notice of appearance form. It basically is a form that notifies the court and plaintiff that you are acting Pro se and gives then a specific address to sned all communication to regarding the proceedings. Now, since you did appear in court, and this can apparently be evidenced by the fact: 1. the judge knew you were there and 2. Since the judgement was in your favor, it is obvious you were there. I think they are grasping at straws, here. However the rules do appear to state (other than a plaintiff when the defendant fails to appear) the party seeking default must apply to the court for judgement by default. If in your initial filing (answer), you included the remedy of dismissing the action in youor favor, this may cover the asking the court to rule against Plaintiff. I am no expert or lawyer, so can't tell you for sure.In most cases the appeal to a judgment must be filed within a specified time frame and must be filed based on specific criteria. Most often it is within 30 days except under specific circumstances. Most of the time you can't just appeal a judgement simply because one party failed to show up, without an extremely valid reason and an understanding judge.I would also advise you to read up on the local and federal rules of civil procedure, especially rule 41 (2) (http://www.law.cornell.edu/rules/frcp/#chapter_viiGood luck Link to comment Share on other sites More sharing options...
appluvr Posted December 2, 2007 Report Share Posted December 2, 2007 This is an example of a notice of Appearance that should be filed at the clerks office (or wherever your state reuires you to file your answer) along with the answer you file to a summons/complaint if you are acting Pro Se. This keeps the plaintiff from saying well, we sent the infomration to LADEDAH because that is the contact information we had. With this on file they had better mail you all notifications to the address you specify or explain to the court why they could not locate you.CIRCUIT COURT OF FLORIDACOUNTY OF WHEREVER BIG BAD JDB Plaintiff, vs. POOR LIL OL' ME Defendant, PRO SE Case No. 07-125CA-01PRO SE NOTICE OF APPEARANCEThe undersigned enters an appearance in this action, and demands notice of all further proceedings. The Clerk of the Court and the opposing party will be informed of any change in address. Any notices may be sent to:[You may list an address that is not your residential address where you agree to accept legal documents.]Service Address: Dated: Signature of Party Appearing Print or Type Name Link to comment Share on other sites More sharing options...
Lecasbas Posted December 2, 2007 Report Share Posted December 2, 2007 In the US anyone can sue anyone else for anything. They can send letters of intent. IMO, I think you have been the recipient of one of these. This is why I think the CA may be able to ask for a "judgment" to be vacated.Here is the section of Iowa's RCP. Notice that the Rule addresses the "aggrieved party", not just Defendant. I also underlined "accident or surprise.." The Plaintiff may have had a catastrophic accident the day it was due to show up in court. In my research of collection cases it is uncommon that the attorney for the CA or OC does not appear.Rule 1.1004 New trial. On motion, the aggrieved party may have an adverse verdict, decision, or report or some portion thereof vacated and a new trial granted if any of the following causes materially affected movant’s substantial rights:1.1004(1) Irregularity in the proceedings of the court, jury, master, or prevailing party; or any order of the court or master or abuse of discretion which prevented the movant from having a fair trial.1.1004(2) Misconduct of the jury or prevailing party.1.1004(3) Accident or surprise which ordinary prudence could not have guarded against.1.1004(4) Excessive or inadequate damages appearing to have been influenced by passion or prejudice.1.1004(5) Error in fixing the amount of the recovery, whether too large or too small, in an action upon contract or for injury to or detention of property.1.1004(6) That the verdict, report or decision is not sustained by sufficient evidence, or is contrary to law.1.1004(7) Material evidence, newly discovered, which could not with reasonable diligence have been discovered and produced at the trial.1.1004(8) Errors of law occurring in the proceedings, or mistakes of fact by the court.1.1004(9) On any ground stated in rule 1.1003, the motion specifying the defect or cause giving rise thereto.The op should do a check through the Illinois RCP by doing a word search for "vacate".While you are at the clerk's office you can ask if the CA in your case can ask for a judgment to be vacated. As I have maintained, I believe it can. If it can prove that it was prohibited in representing itself that day in court then it may be able to convince a judge for a new trial.The fact that the CA has the facts confused as to who didn't show is immaterial. Link to comment Share on other sites More sharing options...
brokeinok Posted December 2, 2007 Report Share Posted December 2, 2007 Look here:http://www.megalaw.com/il/top/ilcivpro.php Link to comment Share on other sites More sharing options...
KentWA Posted December 3, 2007 Report Share Posted December 3, 2007 You need to reply to the motion, state that you did appear in court and the Plaintiff failed to appear and that was why you were granted dismissal. Link to comment Share on other sites More sharing options...
admin Posted December 4, 2007 Report Share Posted December 4, 2007 Kent knows what he is talking about. I'd follow his advice. Link to comment Share on other sites More sharing options...
Lecasbas Posted December 4, 2007 Report Share Posted December 4, 2007 Original post by: bobp1027 I should further clarify that this is a notice of motion. Nowhere does it say that I must appear in court. What concerns me is that the motion states that the CA is seeking to vacate the dismissal and enter "ex-parte judgement" in favor of the CA for the sum they are seeking. "For failure of defendant to file an appearance in court"My take on this is that the CA sent the op a letter of intent. At this point in time the court is not involved. The op should check it's Courts Online or go down to the local clerk and see if anything has been filed. If there is nothing then answering a Motion which has not yet been filed would be pointless.Original post by: appluvr What the CA is likely referring to then, when they say you "failed to file an appearance" is some states (like Florida) require you to file a notice of appearance form. ... If in your initial filing (answer), you included the remedy of dismissing the action in youor favor, this may cover the asking the court to rule against Plaintiff. If the op did not ask for dismissal in its Answer then possibly the CA is saying that the dismissal is improper and a new trial should be had. Link to comment Share on other sites More sharing options...
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