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I Am New and Need Some Advice


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Hello,

I first wanted to say that this place is great and I found loads of helpful info here. Now, on to my issue. I live in NY and have a vague grasp of the legal system.

I found out there was a default judgment against me after the fact. The CA, a "law firm" out of Farmingdale NY, sent the default judgement to me, but never served me. I immediately filed for a Judicial Intervention and a motion to vacate the judgement.

The day they received my motion in the mail, I admittedly messed up the process with the court, I am not a lawyer, they issued an Income Execution upon me. Clearly this was to make my life miserable and to discourage me, but it only made me angery and miserable - a bad combo.

On the affidavit of service the guy flat out lied. He listed times that my wife definately would have been home, she is a stay at home mother, and said he verified my identity, address and military service with a Patty "Doe" who resdied down the street, like 1/4 of a mile and here is where it gets interesting.

This Patty person could not have verified anything. I live in a close knit neighborhood and there is no Patty on our street. The house this guy claimed was hers was actually for sale at the time and vacant, she was in a nursing home and passed away a couple of months later and was not named Patty. As luck would have it a relative was the real estate broker who had the listing and another relative handled her investments.

I had them sign a sworn affidavite saying the house was vacant, which it was, and no one by that name lived there. I was really hoping the CA would not show up at the hearing, but they did, kind of.

The judge called my case I went up and, as luck would have it, the judge had said that if paperwork was not in on the Monday before the hearing date it would not be entered into evidence, not that it really mattered, but it helped me. Their opposition paperwork was excluded immediately, yay!

Then the judge says, and I quote; "Is there really a need to argue this case? There is a real question about service." I almost died laughing. Anyhow, the judge ordered a traverse hearing on 1/20/09.

My understanding is that the burden of proof that I was served is on the CA now, is that correct?

Do i need to bring in the real estate broker or will the affidavite work?

What should I expect and be prepared for? I assume the server will either not show up or will not remember this has taken about 6 months now.

Do I need to question the debt now or do I just handle the server and question him? What should I ask him besides the obvious? I think this CA uses the same process serving company and they have a history of bad service, is that relevant and should I get them to answer questions on that history?

The CA already offered a settlement, 70% of what I allegedly owed which was not even close to correct to begin with. Does this mean they are worried, as I think they will try to offer another settlement before court.

If these guys are JDB's I know that increases my odds of winning at the new hearing, if the judgement is vacated that is, but should I attack the validation now or wait? I would love, as punishment, to have the judgemnt vacated with prejudice, but I know that is unlikely.

What, if I win, recourse do I have against the process server and CA - if it is OK I will list the CA's name, but don't want to break any rules, plus it might help if others have dirt on them or give me direct advice on how to handle them.

I never received anything from this firm except for the default judgement which is clearly a violation, but that is later down the raod. Your help is greatly appreciated and this is an invaluable site!!

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Is this debt still within SOL or not? Who owns the debt, a JDB? Please provide this info, and we can better help you. In the meantime, I would suggest you read up on "Defending Creditor Lawsuits" on the NEDAP site:

http://www.nedap.org/resources/consumer.html#defending

To clarify, they won a default judgment already, I am merely having it vacated to start over. It was originally a Citi Bank debt, but I am pretty sure that the CA owns it now. The firm is Forester and Garbus, I believe they are a JDB. It is within the SOL so that is a none issue.

What I want is my day in court and have them actually prove their case, which is unlikely. I am more interested in the traverse hearing right now and what I need to do to win. I believe the affidavit from my witnesses is sufficient, but any other info would be great.

If I win I would like to sue them for improper service, expenses and attorney fees. Is that enough info? Thanks

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From NEDAP:

Improper Service (no personal jurisdiction)

The defense of improper service applies if (1) you never received the summons and complaint at all; or (2) you received the summons and complaint, but the manner of service was not correct.

Under New York law, a process server must try to make personal service or substitute service. Personal service occurs when the process server delivers the summons and complaint to you in person. Substitute service occurs when the process server leaves one copy of the summons at your home (or place of business) with a roommate, relative, or other responsible party (known as a "person of suitable age and discretion") AND mails a second copy of the summons to you at your last known address (or place of business).

If a process server makes three unsuccessful attempts at personal or substitute service service, he or she is allowed to use conspicuous service (otherwise known as nail-and-mail). Conspicuous service means slipping one copy of the summons under your door or attaching it to the door AND mailing a second copy of the summons to you at your last known address.

Here are some common examples of incorrect service:

Leaving the summons with your neighbor, who lives in a different apartment.

Sending the summons to an old address where you no longer live.

Throwing the summons on the floor in the lobby of your apartment building.

Sending the summons to you by mail only.

If you want to get a case dismissed for improper service, there are a few things you have to do:

You MUST RAISE the defense in your answer the first time you appear in court.

You need to GET A COPY of the "affidavit of service" from your file in the courthouse. The affidavit of service is a sworn statement by the process server that describes how you were served. The plaintiff will rely on this document to claim you were served correctly.

You MUST ASK the court to dismiss the case for lack of jurisdiction within 60 days of filing your answer. Sometimes this means that you will have to file special papers, called a "motion to dismiss," before your first court date is scheduled.

You MUST SCHEDULE AND ATTEND a special hearing called a "traverse hearing." At the traverse hearing, the judge will hear from both sides to determine whether you were properly served. If the judge decides that you were improperly served, he or she will dismiss the case.

You also need to GATHER EVIDENCE to present at your traverse hearing. This evidence could include witnesses or documents that support your claim of improper service.

If your case is dismissed for improper service, the plaintiff can sue you again. You have to decide, based on the facts of your case and the strength of your other defenses, whether it is worth it to go through with a traverse hearing.

The plaintiff's attorney and court personnel will often try to discourage you from pursuing a defense of improper service. They will tell you that the defense will not help you because the plaintiff will only sue you again. But improper service is sometimes your best defense. If so, do not be afraid to insist on your right to a traverse hearing! Remember that the court has no power to issue a judgment against you if you were not served according to law.

Sometimes process servers lie when completing the affidavit of service. For example, a process server may falsely claim to have left the summons with someone at your home. You can detect this false statement by looking at the physical description of the person the process server claims to have met at your home. Does it sound like someone you know? You can file a complaint against a lying process server with the NYC Department of Consumer Affairs.

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From NEDAP:

Improper Service (no personal jurisdiction)

The defense of improper service applies if (1) you never received the summons and complaint at all; or (2) you received the summons and complaint, but the manner of service was not correct.

I have already have the traverse hearing scheduled, the process server lied on his affidavit of service. I guess I am looking for anything else I might need to bring with me on the hearing date. I have a sworn affidavit that contradicts their affidavit of service, but do I need more?

IF I win, which I should, can I counter claim and sue the server and the CA for improper service?

I have everything covered and am prepared to defend my case in court, but I need to win the next hearing and want to do my best to cover all the basis. I know my first post was long, but if you refer back to it you will see what I am looking for. Thank you for your response!

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