Motion to vacate default judgement filed with court in Mass.

[wildbill_hickup]

This story began as Confused Newbie this is an update and a request for more help since a lawyer is out of the question.

Made the trip to Mass. and filed Motion to vacate judgement, was granted a hearing date of Jan 28th (a copy of which was sent to lawyer). In addition to paperwork listed in old post I also was able to get the following.

Affidavit swearing that the lawyer is a duly autherized agent of Portfolio Recovery a$$. and what I owe portfolio

Uniform councel certification for civil cases

Corporate disclosure statemnt on possible judicial conflict of interest

Statement of damages

Which lists nothing but total due.

Complaint stateing that Portfolio is the plaintif, my wife is the defendant and that my wife owes the plaintiff $3100 plus interest

A copy of the summons and return of service from the sherif's dept.

So far I have not seen any referance to the OC other that it was a credit card account and on one piece of paper it mentions the account number.

Question: Should I send lawyer a DV request now befor court or wait til after judgement to vacate.

I have also recieved a letter from lawyer saying that judgement was found against my wife and to pay up.

Wildbill

[trueq]

Someone from the OC has to be a firsthand witness and swear under oath to the facts, with firsthand knowledge of your account, before a legitimate judgment can be had.

Statements of counsel, in brief or in oral argument, ARE NOT FACTS BEFORE THE COURT. (with the limited exception of determining what kind of complaint it is for the court).

The lawyer can sign all the affidavits he wants, you should move to strike every one he signs. A lawyer cannot be a fact based witness, with firsthand knowedge of the underlying debt. (with the limited exception of verifying he filed the complaint)

I'm involved in giving depositions and affidavits in a major class action corporate arbitration case where I'm a major class plaintiff witness! It involves a major QSR restaurant chain over supply chain issues. It would be absurd to think that my team of lawyers could produce an affidavit on the firsthand subject matter and answer my deposition for me on cross-examination!

Any testimony from laywers in this case would be struck before the paper hits the table! How do facts get before the court? (in this case mutually agreed on arbitration) Through a fact based witness, who can be cross-examined. Those are the only facts before the court. Even affidavits from alleged witnesses for the OC have to be available to cross or the affidavit is inadmissable! Move to strike such hearsay! (If you don't object, it will be admitted as acceptable!)

If ANY case where a judgment has been issued without a witness, without firsthand knowledge, it is complete nonsense and subject to vacation on its face.

[Recovering Attorney]

what reason did you give for vacating teh judgment?

[wildbill_hickup]

There were several but mainly that we weren't allowed due process due to the fact that all documents, servings, etc were sent to an unoccupied old address. My wife hasn't owned the house in 8 years, lived in it for 10 years and the folks that bought it lost it 9 months ago. Our current address is very plainly recorded with the CR people so there is no excuse for them not to know it. They had no trouble finding it to tell her the judgement had been made and she better pay up. It appears that Portfolio isn't licenced in Vermont, or we can't find them anyway, gee I wonder why they tried to blow it through the Mass court system. I'ts pretty much all spelled out in an old post under my user name. There is also a question of SOL as the last activity we show is 1996. It also has never shown up in any credit report,of which we have dating back to 1994. They haven't even proven that the dept even exsisted.

[Desert Bloom]

I too have a judgment against me in MA. The complaint was issued more than a year after I had left the state, and the judgment was issued in 2003 more than 2 years after I left MA -- I was never served.

My only knwledge of the case/judgment is that it is on my CR with Experian --I got it removed from Transunion and Equifax. Problem is the judgment was gotten by a CA for an old department store credit card debt, and the CA has since sold it to a JDB, possibly been sold again as every now and then I get a letter and I DV it and it goes away -- so I do not even know who to pay if I wanted to. Would llike to get it removed from my credit, but don't know how.

I thought that there was a statute of limitations in MA in which you can seek to have a judgment vacated -- so I wonder when your judgment was issued.

I will be interested to follow your case and see how it works out.

[wildbill_hickup]

Oh they're really pushing it in my wifes case' you said 2 years it's been 10 years since she lived at the address they sent the stuff to. Judgement in this case was rendered Dec 26 2007. First we heard of the dept was Dec 21 2007. Nothing like slaming it through the court before anyone can respond, and they even confused it a little more by doing it all in the middle of the Xmas holiday.

By the way can anyone tell me if I should send these guys a DV or just present everything I have (or don't have) in court and let the Judge decide???