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Question about Judgement


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So my wife and I were going through some old papers lastnight and came across a default judgement she has on her previously married name. The service papers were from a lawyer on behalf of LVNV for a Sears card she had way before we got married and while she was married to her Ex. The papers were served to her while we lived in Polk County but the papers are from a Dallas County court. She did live in Dallas County when she got the card but since the lawyer has her proper address shouldn't he had filed in Polk County for this? Neither she nor LVNV nor the lawyer are in Dallas County.

So according to Iowa Civil Procedures she has to request the vacate before the 1 year mark from date of entry. The default was entered on April 26th, 2007. So if we can get this vacated we need to move fast.

Can we get this vacated and how do we go about getting something vacated?

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I'm not sure you can get it vacated. Depends on your reasons but here's the appropriate rule.

Iowa R. Civ. P. 1.1013 (2007)

Rule 1.1013 Procedure for vacating or modifying judgment.

1.1013(1) Petition. A petition for relief under rule 1.1012 must be filed and served in the original action within one year after the entry of the judgment or order involved. It shall state the grounds for relief, and, if it seeks a new trial, show that they were not and could not have been discovered in time to proceed under rule 1.977 or 1.1004. If the pleadings in the original action did not allege a meritorious action or defense the petition shall do so. It shall be supported by affidavit as provided in rule 1.413(3).

1.1013(2) Notice. The petitioner must serve the adverse party with an original notice and petition in the manner provided in rules 1.301 through 1.315, located in division III of the rules in this chapter.

1.1013(3) Trial. The court shall promptly assign the petition for trial not less than 20 days after notice is served. The petition shall stand denied without answer; otherwise the issues and pleadings, and form and manner of the trial shall be the same, as nearly as may be, as in the trial of an ordinary action to the court, and with the same right of appeal. No new claim shall be introduced.

1.1013(4) Preliminary determination. The court may try and determine the validity of the grounds to vacate or modify a judgment or order before trying the validity of the claim or defense.

1.1013(5) Judgment. If the original judgment or order is affirmed after a stay under rule 1.1006, additional judgment shall be entered against the petitioner for the costs of the trial, and also, in the court's discretion, for damages not exceeding 10 percent of the judgment affirmed.

I should point out that there is some indication on Lexis Nexis that there may be current court orders which may amend this rule so I would ask the Court clerk for the proper procedure and remember that while a clerk cannot help you with legal advice they are allowed to tell you court procedure however some won't just because it's a hassle or extra work.

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Well I finally spoke with a lawyer and he said that it is curious as to why they would file in a different county. He requested that we go get the court papers and see what service was. He said something about having a claim against them for filing in a different county that is separate from getting the judgement vacated. She doesn't recall, nor do I, getting served. The lawyer doesn't know if there is any other way to get this vacated if service was good. I guess we'll see what happens.

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I have no idea how this interfaces with IA state law -- the FDCPA says that the lawsuit may be filed in either the judicial district where the consumer signed the agreement or the judicial district where the consumer resides.

Well the way it interfaces is if the consumer here files a complaint and alleges violations of the FDCPA. In this scenario: The plaintiff who filed the original complaint in the alleged wrong jurisdiction cannot file an FDCPA complaint. If the defendant files to vacate this judgment, he/she cannot do so based on an FDCPA violation because federal law does not cover vacating any state adjudicated judgment and because state law has only certain issues it will visit or revisit to vacate a judgment and only then in a timely fashion. Now if the consumer here wants to file for FDCPA violations because of the judgment issued in the wrong jurisdiction, then they may file a complaint in federal or any court of "competent jurisdiction" to hear the FDCPA complaint. Again, it must be done in a timely fashion. FYI - It's not something I would file a complaint for.

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