Confused Newbe - Notice of Request for Default on a very strange account

[wildbill_hickup]

OK I've been doing some reading here and so far haven't seen one quite like this. This whole story is on behalf of my wife. She is just not pissed off enough and doen't feel well at this point so I figure I might as well get some of the background work done for when the p**p does hit the fan.:'>

First off it does seem to have one thing in common with some of you fine folks and that is Portfolio Recovery Associates. I see they are very well thought of around here.

That being said here are the rough details. Recieved a copy of a letter from an attorney apparently representing PRA to the Clerk For Civil Business (in a county in MA) including a Request for Entry of Default, and request for Entry of Default Judgment and a certificate of service. They are asking the clerk to prepair an execution and send it to them. OK I think I understand all that EXCEPT It is regarding an account (apparently credit card) that we know nothing about. The account # doesn't match anything in her records, the letter is addressed to a last name she hasn't used in over 10 years, in a different state, at a different address, yet they have our current address correct. This particular deliquent acount has never shown up on a CR (we have 1 from Equafax 01/07 and 2 fromTransunion 03/05 and 04/05).

In addition to that, in the body of the Request for Default it states and I quote " ....and the summons and a copy of the complaint have been served on the defendant(s) herein on November 27 2007 as appears from officers return:.....", you could have fooled me we haven't been served with squat. No sherif, no regesterd mail, no signatures, hell this thing just came regular first class postage. And in addition this just came out of the woodwork. The only thing that might be related is a phone call sometime back (taken by my wife). The caller wanted her to conferm her name (maiden + married), which she did and her SS#. Fortunately she wouldn't give that to God himself unless he had at least 4 forms of photo ID:lol:

Not quite sure as to how to proceed. Apparently this has been sent to the court as of 12/21. Should we see if we get something from the court, or contact the court, or contact the attorney or just ignore it? As I said it has never shown up in her CR.

By the way we refinaced our home in 03 and paid ALL of our back depts. We also now live in VT.

Wildbill

[razr]

It looks like they already have a judgment against you. You should call the court ASAP and ask, you may also be able to look the info up on-line. It is typical of Portfolio to stomp all over due process to screw debtors.

I'd suggest you get an attorney ASAP. Even though you live in a different state, judgments can haunt you forever.

What would piss off your spouse? Collection calls? Lean against your property? Seizure of your bank account? Attachment of your wages? Because that's a real possibility if you don't take action ASAP.

-r

[bubbaboo]

I will add one more thing. In the court file there should be a form (possibly called a return of service) that will state how she was served with the summons and complaint. She needs to know how they say she was served.

Try online first. A lot of clerks of the court are online. If not, then call. Usually they will do what they can to help.

Don't ignore this. It will only get worse. Do it today.

[wildbill_hickup]

OK, I believe I may have some of that. Here is what is in the envelope

A letter on Attorney letterhead to:

Clerk For Civil Business

(Town/County) District Court

Town, MA Zip

It says the following

Enclosed please find the plaintiff's Request for Entry of Default and Request for Entry of Default Judgement, together with a Certificate of Service, with respect to the above matter. Kindly enter judgment, prepair an Execution and forward same to my attention at you earliest oppertunity.

Very truly your

Bla Bla Bla

cc: at bottom to my wife wrong name right address

In addition to the letter enclosed are the following:

Request for Default

(Pursuant to Rule 55 (a))

Plaintiff's Request for Default Judgment

(Pursuant to Rule 55 ( (3)

Affidavit Pursuant to Massachusetts Rule 55 ( (3)

This appears to be the statement as to how they came up with the amount she owes although I have no idea where they get an interest charge of 12% between 09/06/07 and 12/21/07. Why those 3 months.

Certificate of Service

In the Certificate of Service it states:

I attorney for or in behalf of the plaintiff in the above action, certify that on this date I served a copy of Plaintiff's Request for Entry of default and Plaintiff's Request for Entry of default Judgment upon the defendant by forewarding a copy of same by first class mail

Wifes Name(wrong)

Address (current, correct)

While it states at top of each document COMMONWEALTH OF MASSACHUSETTES and made to look like Court paperwork they are all just typed on plain paper by the Lawyer.

The following statement is at the bottom of each document

SIGNED under the pains and penalties of perjury this 21st day of December 2007

Signature of Lawyer

Printed Name

Law firm

Address

800 number

on these document is also a Civil Action # and a file number

Now the questions.

What should I ask the court clerk?

Is there anything I should tell the clerk?

Should I at this time send request for DV to attorney, cc:ing a copy to Court Clerk CMRRR of course?

Any help or guidence will be greatly appreciated as we are on a fixed income and unfortunatly the funds for an attorney are simply not there. Unless we give up the lucturies such as eating, heat and electricity.

Wildbill

[jasen]

You need to call the court to find out a) if you were really sued, and get the official certificate of service and any filings to look over. I wouldn't trust anything the other lawyer sends over himself. Do those documents list which court this is even in?

A DV at this time is useless. You only need to deal with the lawsuit.

If you call the clerk/court and they can't find a lawsuit in your name, you will have just nailed PRA in a blatantly illegal ploy to trick you. I can't imagine even they would be that stupid.

[bubbaboo]

The certificate of service you posted is not what I was referring to. When the case was first filed, there were probably two documents filed with the clerk. The first is the complaint which basically lays out their allegations against your wife (who they are, how much they are asking for, why they are suing, etc.). The other document is sometimes called a return of service. They were supposed to serve a copy of the complaint on your wife to give her notice of the suit and to tell her how she can defend herself. Usually that is done by a process server, sometimes a deputy sherriff, sometimes a private process server. Whoever served her is supposed to fill out that form (return of service), sign it and file it with the court clerk. It tells how she was served and by who. In the paperwork you posted, it says that they did in fact serve her. You need to get a copy of the return of service to see what they said in it. It may say they served her in person at a certain address, or they served an adult at the place she lives, or they served her by publication. If they lied, it will be easier to get it set aside.

[wildbill_hickup]

Well just talked to the clerk at the court and it's bonified, not only that but it was also granted on the 26th, Merry Christmas to us. They pulled all the usual stuff the I have been reading about on this site. They corrisponded to an address that has been invalid since 1998. That's where the County Sherif served the Summons and copy of complaint, Oh ya it was followed up by a copy sent First Class Mail to the same address. Funny how they never sent anything to our current address til it was to late to do anything about it. And they did have our current address, IT'S ON THE LETTER!!!!!!!!!!! Isn't that fraud or something???? According to the woman at the sherif's dept all they are required to do is leave it in the door, some serving.

Well the woman at the court said that I should file a Motion to vacate default judgment ASAP and (even though she is not an attorney) the court should reverse it's decission, based on the evedence. OH Boy just what I wanted 600 mile trips in the dead of winter. Can't afford a lawyer.

And all this over a alledged account we seem to have no record of EVER!!!! and that has never showed up on a CR, EVER!!!!!!!!

Thanks for everyones help guess my next stop is the lawyer section of this site

Wlidbill

[Rick9972]

Could a Mod. move this to the Lawyer area, Please?

It would save going through everything again.

Thanks

[wildbill_hickup]

Yes that would be fantastic if this whole thing moved. It would save a whole lot of typing

Thanks again

Wildbill

[flacorps]

You've got "distant forum abuse" and "sewer service" ... The former may only be helped if VT has good consumer laws like California did in the Signet Bank/Yu case (although I think you have an FDCPA argument too) ... the latter is a matter for the court to vacate the default judgment and perhaps a matter for the bar to pursue the attorney who has gotten "too cute" (read fraudulent). You'll need an attorney in MA. NACA is a good place to start looking. YMMV

[montanatim]

You said a 600 mile trip to the courthouse. When you file to have the judgment vacated, also file for a change of venue based on your new (now) address.

You should have to travel no further than your county courthouse,where they should have filed in the first place.

Get a hold of a copy of the rules of civil procedure for the court you are filing in, these can be found on line or at a law library in the court house itself, sometimes at local county library, or a local university, see what must be done to start this over. If they have to re-serve you, or you file a motion to reopen discovery, or make your initial answer, whatever your rules say.

If the debt wasn't incurred/opened in the county they filed in, that is also a FDCPA violation. Since they didn't serve you where you are either.

[flacorps]

You said a 600 mile trip to the courthouse. When you file to have the judgment vacated, also file for a change of venue based on your new (now) address.

You should have to travel no further than your county courthouse,where they should have filed in the first place.

That's not quite the case ... if their use of an old address was legitimate, then jurisdiction would be there and venue would be proper. However, the real argument against going to court there would be "forum non conveniens" which is weaker but still sufficient. Assuming the judgment gets vacated but the case is not dismissed over there, transfer might not be mandatory on venue grounds, but FNC could get the job done anyway...

It's important to reach for the right legal tool because (1) the court shouldn't rule your way unless you use it; and (2) if the court does rule your way and you used the wrong tool, the case could get appealed and you now are faced with spending money to argue that it was "harmless error" ... and if the case gets sent back to the same judge in the lower court, he not only can't help ... he won't be in much of a mood to help.

[wildbill_hickup]

I don't have a lot of time this AM but I just wanted to respond to the latest posts.

montanatim: Yes they should have corrisponded and filed in the state of Vermont (where we live now, and they new it) however I believe they chose Mass because the SOL in Vermont is 3 years it's 6 in Mass.

flacorps: As I said above they knew we were in Vermont and we can prove it. We just recieved a letter from them that was mailed on the same day they filed paperwork in the court in Mass. The letter must have got lost in the Xmas rush. It asks us to respond or be sued. Now I ask you, even if it hadn't got lost how could we respond if they filed the same day????

There is more but that will have to wait.

Wildbill

[montanatim]

Was the debt originated in Mass? If so they may be able to sue there. If not it's a FDCPA violation. Dismissal for lack of jurisdiction would apply.

[flacorps]

Was the debt originated in Mass? If so they may be able to sue there. If not it's a FDCPA violation. Dismissal for lack of jurisdiction would apply.

There are two kinds of jurisdiction that need to be teased apart to know with certainty what's going on.

One is subject matter jurisdiction ... meaning did this court have any relationship to the parties. It would be satisfied if DW defaulted while living in the state where that court sits. Venue would be satisifed if she had lived in that county. Forum non conveniens has to do with where the defendant is now. Assuming the plaintiff is somewhere far flung, it's just as convenient for them to travel to VT as it is to MA. So the defendant's convenience should prevail.

The other is personal jurisdiction. That's a game of tag. Did they tag you? If not, no personal jurisdiction. Service doesn't always have to be by a deputy or process server coming to the door ... sometimes it can be by mail. Sometimes it can be by publication. Sometimes it can be by serving the secretary of state and having the SS send out a CMRRR letter to the defendant.

But if you've been living openly and notoriously in VT since '03 and the attorney pulled your credit and got your correct address, there's no excuse for serving the old one. The service shoud be quashed and the judgment should be vacated, and the case should move to someplace more convenient.

[wildbill_hickup]

Well just to clear a couple of things up. We have resided in Vermont since 1998. They clearly were aware of the fact that we lived in Vermont as at the bottom of the cover letter they sent the court they put our correct address. The lady at the court wasn't even aware of that until I pointed it out to her in a conversation we had on the phone. According to her all corispondence was sent as well as the Sherif to the 10 year old address in Mass. We did find the origional dept. It was a Citi Bank Card. Allthough we have not found the paperwork yet we believe that all outstanding accounts were paid in full when we bought our current res. in 2000. This is why I don't get why they are coming after her now, even if it was overlook in 2000. Shouldn't the SOL expire in 2006 even in Mass. We have heard nothing until now and nothing has ever showed up on a credit report. One other thing strikes me as being a little strange On the Affidavit under "Contract Action" it has the origional dept, then intrest is listed as being from 09/06/07 though 12/21/07. If this dept is so old then how did they come up with only 3 months interest?

By the way we are looking for a lawyer in Mass to make sure we do this right. I am still trying to get my head around what is going on, hence all the questions and so forth. Thanks once again for all your patience and the info you have provided.

Still a little confused but gainin'

Wildbill

[wildbill_hickup]

Newest update

First

Contacted lawyer in Mass. she said that she charged $250 per hour so it wouldn't be cost effective for us to hire her (we are being sued for a little over $3000) The only advice she offered my wife was to ignore them. She said (my wife) has no holdings in Mass to put a lein on so they couldn't touch us. The 'old' address that was served we sold in 2000.

Second

I don't know if we should just 'ignore' this as the lawyer said. There are a few reasons formost is that even though the judgement hasn't appeard on her CR yet I'm sure it will and she doesn't want that. That being said, We have a blank 'Motion to the Court' form from Mass. I could use advice on the following:

A) Should we file the motion to 'Remove default'? This will overturn judgement and return case to court calendar. With all PR(and their lawyer) did questionably I don't think getting it removed would be a problem.

As far as moving to a more convenent place, they would have to come to Vermont where the SOL on CC is 3 years (note last record of DOLA is 11/96) after that, payment may have been taken over by 'card insurance' do to disability. Haven't found records of that, that far back some where around 1999 or 2000 Still SOL very questionable even in Mass. If somehow they do decide to persue then do we DV them etc etc as you would in a new case?

C) Should we send a letter to PR and lawyer explaining that we have figured out their little scam and threatening to turn them over to all appropreate authorities (ie FDCPA, Mass. Bar, Mass. AG, BBB and whoever else we can think of) if they don't fix the problem or should we just send letter to the respctive authorities and then send copies to PR and Lawyer?

D) Do we let the judgement stand and 'ignore' them, and if it shows up on CR just send a letter of explanation?

E) Try and find a lawyer that's a little more helpful and understands we are not made of money?

Of course any other suggestions would be welcomed as well.

[someonesomewhere]

I think I'd try E.

[wildbill_hickup]

No such luck, all say the same thing. I guess a $3400 case is just chump change to a lawyer. It appears we are on our own since no-one seems to be interested in even hearing the details. The lawyer that did give us the info refered to in last post gave incorrect info so best we didn't get her after all. According to a Vermont Lawyer I know it is possible to get a lien on an out-of-state judgement.

I am filing a motion to remove default and schedule another hearing on the matter, hopefully for the 28th of Jan that is what the clerck told us to request although I don't see a place on the form to request it. I guess I'll just write it on the back along with the reasons why.

The reasons I will be stating are the following.

1) All documentation was sent and served to a 10 year old address, even though it is apparent that they PR or their lawyer knew our current address.

2) The only documentation we recieved was a copy of the filing to District court by lawyer for PR dated Dec 21st. In a seperate mailing we recieved a letter date Dec 21 saying we had been served and we sould contact lawyer immediately to volantarily clear this up. Both were not forwarded to us they were sent to our current address. Hopefully this will show there deceptive practices.

Question: should I at this time mention that this is a 10 year old dept or leave that to hearing day??

Well I hope this is enough for the judge to grant a new hearing.

l hopefully we do this correctly and do accept any help you can give.