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Excusable neglect to void default judgment


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My boyfriend just discovered he has a DJ on his CR dated 1/18/08. They had attempted service numerous times over the last few years according to the file.

They have a returned service date of 10/25/07. He had just lost a 2 year custody battle with his ex-wife and his children were removed from his home and placed with her (she's an addict, but that's a whole other case). He was devastated and depressed. He vaguely remembers someone calling and saying they had to drop something off and signing for something but he didn't understand what it was and really didn't care....he had just lost his children.

Is this grounds for vacating the judgment under rule (B)(1)mistake, inadvertence,surprise or excusable neglect.? He could barely function as a human being let alone answer a summons.

We'd like to see him get it vacated because it is a JDB and the debts SOL has expired....the debt is from 2000 and SOL is 4 years in FL.

Any other suggestions?

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BUT

Don't make it your only argument. CHECK THE COURT RECORD! On a motion to vacate, they usually check the court record. The proof it is your debt needs to be there or the court is obligated to vacate.

99.9% of the time, the proof is not there on a default judgment! Its normally just a computer run, maybe some statements. Even if the proof is there it is your debt, it needs to be entered properly through a fact based witness with firsthand knowledge of the events of the debt by the plaintiff. (This means someone other than the Plaintiff's attorney!) That almost never happens on a default judgment.

So I would not lean on your suggestion as the ONLY argument to vacate the judgment as void.

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Thanks True....we are going to go view the case file and see what all is in it.

So defense would be (1)excusable neglect due to loss f custody case (how do you word that?), (2)no evidence debt is his,(3)I'm thinking lack of jurisdiction to file suit because MRC Receivables nor Midland are licensed as debt collectors in Florida from what I can find and (4)statute of limitations has expired?

Also, he is pretty much judgment proof or so it would seem......He is in FL so he has the homestead exemption so they can't lien his house. he is head of household and already has a lien in place for child support so they cannot garnish wages or freeze his bank account.

Does anyone know if they can take the Stimulus Rebate he will be receiving? He had custody of the children all last year so he has $1200 coming to which half he has agreed to pay his ex for arrears that accrued the month after he lost custody.

Can they take/freeze that rebate check and do those defenses sound right? It's been a few years since I've gone toe to toe with creditors so I'm looking for validation that I'm on the right track. Thanks!

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This is from Title 33, Part 6 Florida Consumer Collections Practices

559.553 Registration of consumer collection agencies required; exemptions.--

(1) After January 1, 1994, no person shall engage in business in this state as a consumer collection agency or continue to do business in this state as a consumer collection agency without first registering in accordance with this part, and thereafter maintaining a valid registration.

(2) Each consumer collection agency doing business in this state shall register with the office and renew such registration annually as set forth in s. 559.555.

I can not find that the Plaintiff, MRC Recievables is registered in Florida.

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You wil get separate court notice of that. You can also oppose that by appealing or saying you were tryng to work out a deal.

Throwing registration in is fine, but is not a great defense. Everyone and their brother lacks some form of regulatory paperwork. The judge just may fine them for lack of registration, but probably will not rely on that to overturn the judgment.

Lack of registration and ability to follow the law is something to be used to destroy the other side's credibility, combine that with an FDCPA violation and the judge may be pursuaded on that.

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Trueq is right, but to repeat his advice.

No matter what reason you have for appealing the Default Judgement, it does not matter unless you provide a bonifide affirmative defense.

SOL defense qualifies nicely and I would strongly recommend you hire a lawyer for this case.

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Unfortunately he spent all his money fighting to keep his kids out of the hands of their drug addict mother so we are on our own for this.

I had great success getting a judgment against me vacated a few years back with Citibank. I'm thinking/hoping I can handle these JDB's!

Thanks for the info.

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Depending upon where you are the court rules may require that in order to vacate a default judgment you may have to prove also that you have a chance of prevailing had you appeared. NY does this, for example. In these jurisdictions the courts won't vacate a judgment for bad service if you would have lost it anyways at trial.

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Those are the rules here as well Methuss. I've downloaded the Motion to Vacate form from the county's website and after you state your reason for not appearing you have to give your defense. I feel with the SOL, no evidence the debt is his and the state rule that debt collectors be registered he may have a good chance to get it vacated.

In an earlier post I erroneously stated his first defense would be his state of mind from loss of custody. That is actually his reason for not appearing and possibly lack of service.

I'm feeling pretty confident we have a good chance at getting it vacated. Fingers crossed!

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