Need feedback on my motion to vacate, please.

[ShortBus]

How does this sound? I'm looking for feedback on both the composition and the validity of my argument. Thanks!

IN THE ****** COURT

Mean Credit Card Co. )

)

Plaintiff, )

)

v. ) Case Number: **********

)

ShortBus )

)

Defendant. )

MOTION TO VACATE JUDGMENT

COMES NOW the Defendant, acting on his own behalf, hereby moves this Honorable Court to enter an Order to Vacate Judgment and offers in support the following:

1. According to record, on November 23, 2003 the complaint in question was filed and summons was sent to the Defendant at XXXX XXXXX, Apt. 3, XXXX, Ohio via certified mail. On December 23, 2003 the summons was returned unclaimed to the Court. On January 5, 2004 the Court resent the summons via standard U.S. mail as the second and final service attempt, as per Ohio Rules of Civil Procedure, Rule 4.6(D).

2. As of December 19, 2003 the Defendant had taken up legal residence in the State of Michigan. The following documents are included with this motion as evidence to support this claim:

a) A copy of a lease agreement for the Defendant’s Michigan residence;

Copies of the Defendant’s 2003 Michigan and Ohio income tax returns;

c) An affidavit by Big Bus, the Defendant’s father and landlord immediately prior to the Defendant’s relocation to Michigan.

3. As a resident of Michigan when the suit was joined, the Defendant argues that service was never properly completed and that the complaint is outside the jurisdiction of the Court.

3. Not being properly served, the Defendant was not aware of this judgment until after having reviewed a copy of his credit report on September 17, 2007. This motion was brought before the Court by the pro se Defendant as timely as possible after learning how to properly file the requisite legal paperwork.

WHEREFORE, Defendant respectfully requests that the Court enter an Order to

Vacate Judgment in favor of Defendant.

[Amerikaner83]

1. According to record, on November 23, 2003 the complaint in question was filed and summons was sent to the Defendant at XXXX XXXXX, Apt. 3, XXXX, Ohio via certified mail. On December 23, 2003 the summons was returned unclaimed to the Court. On January 5, 2004 the Court resent the summons via standard U.S. mail as the second and final service attempt, as per Ohio Rules of Civil Procedure, Rule 4.6(D).

2. As of December 19, 2003 the Defendant had taken up legal residence in the State of Michigan. The following documents are included with this motion as evidence to support this claim:

a) A copy of a lease agreement for the Defendant’s Michigan residence;

Copies of the Defendant’s 2003 Michigan and Ohio income tax returns;

c) An affidavit by Big Bus, the Defendant’s father and landlord immediately prior to the Defendant’s relocation to Michigan.

3. As a resident of Michigan when the suit was joined, the Defendant argues that service was never properly completed and that the complaint is outside the jurisdiction of the Court.

I"m confused. You say you were a Michigan resident...but you were OHIO resident when summons was issued (according to your own statement above)... The dates are a bit confusing to me....

[ShortBus]

Summons was sent via certified mail and probably sat in my mailbox for a month since I was almost never home at that point. It was returned to the court unclaimed about a week before I moved to Michigan. When they got it back, they then resent it via first class mail to my Ohio address. Under Ohio Rules of Civil Procedure, the service was considered completed when the clerk dropped that second notice in the mailbox. Problem is that I was living in MI when that happened. It's a matter of only two weeks, but... close only counts in horse shoes and hand grenades, right?

[Amerikaner83]

...and Nuclear weapons, mustn't forget those...

not sure if "your honor I was living there but not at home at that point" would really work...BUT: since service was COMPLETED when you were no longer a resident - I can see a case being made for it, sure.

[ShortBus]

Yeah, it's a weasily defense...

Debt's mine. The reason I didn't know of the summons was that I was going to school full time while working at a full time job with a two-hour, one-way commute and prepairing to move to eliminate the commute. I was too exhausted to muster the energy to contend with the collection notices that choked my mailbox back then (I was unemployed for a while). But I wouldn't have knowingly ignored a court summons. I was stupid, but not that stupid.

I realize that the creditor will likely sue me in Michigan once I file this motion, assuming it flies. But I'm ready to deal with the fallout from that. But this judgment is for almost $6k, plus 25% interest. That's something like $15k nowadays. I either need my day in court to properly defend or leverage to negotiate a better settlement.

I'm really nervous about filing this since I know it's by the skin of my teeth, but I don't know if I have any other options.

[cjtx]

I don't know much about Ohio's RCP, but according to what I understand, under rule 60( you only had 1 year to try to vacate the judgment when you allege extrinsic fraud (improper service), and it starts tolling from the time judgment was entered, not from the time you discovered it. Unless you allege other good reason justifying relief from the judgment (like in this case, that you had no way of knowing but by looking at your credit report).

I found this which may be relevant to your case:

In order to prevail on a Civ.R. 60( motion to vacate, a party must show that (1)

it has a meritorious defense to raise if the Court does grant the motion; (2) the party is

entitled to relief under one of the five grounds listed in Civ.R. 60(; and (3) the motion

is timely filed. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146,

syllabus at paragraph 2. If a party cannot establish all three of these elements, the

motion should be denied. Rose Chevrolet , Inc. v. Adams (1988), 36 Ohio St.3d 17, 20.

you can view the case where I took that quote from at:

http://cp.cuyahogacounty.us/internet/opinions/464721%20-%20WeberVAdministrator.pdf

I think that even if you can show your motion was timely filed, you'll still have trouble showing you have a meritorious defense.

There may be other options to vacate a judgment in Ohio, but I couldn't find them.

[ShortBus]

Thanks for the citation. I've thought about this already.

My primary argument is not so much improper service, but rather that the court doesn't have jurisdiction over the matter since I was not an Ohio resident when the suit was joined (is that the proper term?). Since that reason is not a simple clerical mistake, neglect, fraud, etc, it should not be subject to the one-year limitation. What do you think?

RULE 60. Relief From Judgment or Order

(A) Clerical mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

( Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud; etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision ( does not affect the finality of a judgment or suspend its operation.

The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules.

[cjtx]

The court has jurisdiction over the matter, it just doesn't have personal jurisdiction over you, because you were not a resident at the time you were allegedly served.

Let's say they buy it, you're still subject to the "GTE" criteria for vacating a judgment from my previous posting.

[ShortBus]

In order to prevail on a Civ.R. 60( motion to vacate, a party must show that (1)

it has a meritorious defense to raise if the Court does grant the motion;

I'm not sure what a "meritorious defense" is, but sounds like they're expecting me to give the court a preview of my defense should the plaintiff elect to refile in Michigan? I'm not sure how I would handle that question.

(2) the party is entitled to relief under one of the five grounds listed in Civ.R. 60(;

Well, reason #5 is "(5) any other reason justifying relief from the judgment" which sounds like it's wide open to judicial interpretation.

and (3) the motion is timely filed.

Again, there seems to be discretion given to the judge on what constitutes "timely". I had moved out of state; how what I expected to know of the summons? I am trying to address this matter as timely as possible now that I am aware of it.

I don't know what else to do here, to be honest. I cannot possibly afford to pay $6,000 @ 25% interest for 4 years. Judgments are enforceable for something like 25 years, plus it's renewable. I am not trying to weasel out of the debit, I just need a level playing field.

And what's the worst that could happen if my motion were denied? Hey... I'm open to any advice if you don't think this motion is the best course of action.

[cjtx]

I'm not sure what a "meritorious defense" is, but sounds like they're expecting me to give the court a preview of my defense should the plaintiff elect to refile in Michigan? I'm not sure how I would handle that question.

If you had an opportunity to defend your case in Ohio, what would have been your defense? Was it SOL? Did the OC/CA commit fraud? If there was no defense, then the court assumes the OC/CA would have prevailed and therefore, the judgment would still be rendered so no reason to vacate it.

And what's the worst that could happen if my motion were denied? Hey... I'm open to any advice if you don't think this motion is the best course of action.

The worst that could happen if your motion is denied is that the OC/CA will have your new information to domesticate the other judgment in your current state of residence.

I hate to even suggest this, but maybe you should try to offer a settlement. That is, assuming there is no other way of vacating this judgment.

[ShortBus]

I don't know what my defense would have been. The OC kept the collections in-house, so the FDCPA wouldn't apply. Which is a shame because they employed some very underhanded tactics that would definitely be violations. (Yes, I know that's not a defense to the suit though.) My plan was to vacate it and then negotiate a settlement before they refilled in Michigan.

My primary goals are to get the judgment removed from my CR and make sure that it doesn't rear it's ugly head when I attempt to secure a mortgage in a couple of years. If I could also improve the associated TL from it's current status as a charge-off, that would also be great. As far as my capabilities: I could immediately pay a 50% settlement tomorrow. However, if I scrimped and saved for several months before I approached the OC, I could manage to settle in full. Obviously the less I have to pay them, the better, but the money is of secondary concern. (It kills me to say that, but in someways it would almost be cathartic to pay it off).

Besides filing this motion, my other option would be to contact the attorney that sued me to talk settlement. It's been four years and I haven't heard a peep from them (despite having another account with them). Would he be willing to dismiss the case? And if so, would that magically erase the judgment?

Thanks for the continued advice; I greatly appreciate it.

[Amerikaner83]

doesn't hurt to ask, does it?

Might be worth it to their client to settle for 50%, tell them you are working on vacating the Judgement...and if they want $$ now is the time.