judyg8or

Advice on vacating a FL default judgment that is void

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Hello and thanks in advance for any advice.

Here is the situation:

A default judgment against my boyfriend was issued in 2007. The Plaintiffs were Palaside Collections, CACV of Colorado for a Washington Mutual/Providian CC debt.

In January he received paperwork about a class action lawsuit against CACV & Washington mutual. The jist of the class action suit is that CACV filed affidavits for proof of indebtedness that were signed by a dead person! Evidently a Washington mutual employee had other employees sign her deceased mother's name followed by a slash and the real employees initials. These affidavits were even notarized.

My boyfriend opted out of the class, feeling that a measly $75 settlement check was not worth giving up his rights to possibly have his judgment thrown out.

I am now helping him research this matter. Here is what I think I have discovered so far:

1. There is no time limitation to vacating a void judgment.

2. One of the reasons a judgment is void is lack or loss of subject matter jurisdiction.

3. Subject matter jurisdiction is lost when there is fraud upon the court.

4. Fraud upon the court was committed by the Plaintiff's attorneys when he filed a false/fraudulent affidavit.

I guess my main issue is in all my googling, I have not found a single case like this one and would like to know if any one else agrees that he has grounds t0 file a motion to vacate void judgment.

Thanks again!

Judy

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I am working a case in arbitration with a fraudulent affidavit and that same issue is key to me. Even if I lose the arbitration I can fight off the award in Florida court because the award was procured with fraud. If you can prove fraud … and it has to be clear and convincing then you have a great shot of vacating the judgment.

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Hello and thanks in advance for any advice.

Here is the situation:

A default judgment against my boyfriend was issued in 2007. The Plaintiffs were Palaside Collections, CACV of Colorado for a Washington Mutual/Providian CC debt.

In January he received paperwork about a class action lawsuit against CACV & Washington mutual. The jist of the class action suit is that CACV filed affidavits for proof of indebtedness that were signed by a dead person! Evidently a Washington mutual employee had other employees sign her deceased mother's name followed by a slash and the real employees initials. These affidavits were even notarized.

My boyfriend opted out of the class, feeling that a measly $75 settlement check was not worth giving up his rights to possibly have his judgment thrown out.

I am now helping him research this matter. Here is what I think I have discovered so far:

1. There is no time limitation to vacating a void judgment.

2. One of the reasons a judgment is void is lack or loss of subject matter jurisdiction.

3. Subject matter jurisdiction is lost when there is fraud upon the court.

4. Fraud upon the court was committed by the Plaintiff's attorneys when he filed a false/fraudulent affidavit.

I guess my main issue is in all my googling, I have not found a single case like this one and would like to know if any one else agrees that he has grounds t0 file a motion to vacate void judgment.

Thanks again!

Judy

If the decadent signed the affidavit then by all means move the court to vacate for fraud on the court. Of course you know a dead person can't sign an affidavit of debt but if your boyfriend was a victim of this fraud then there never was subject matter jurisdiction. This case has RICO written all over it. Also it is troubling that this signature was notarized.

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It certainly should be brought to the attention of the Fl AG ....

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Thanks so much for your feedback.

As far as proving the affidavit is a fraud, does this mean I have to prove the signer, Martha Kunkle was dead on the date it was signed?

I have found her on the SSI death index, but do not have authority to order her death certificate. Would the court records from the lawsuit that spawned the class action suit be enough? I think I have to join pacer to get those. Here is a snippet from an article about the case that exposed the false affidavits:

Portfolio tried to prove the debt by filing a notarized affidavit provided by a Martha Kunkle, who purported to be Providian's agent.

"We made an effort to meet Martha Kunkle and verify what she said. It all kind of snowballed from there. They never made her available,'' Heenan said.

The state judge ruled in Cole's favor and sanctioned Portfolio with a $6,000 penalty for disregarding his order to make Martha Kunkle and the notary public available for depositions.

Further investigation found that "Martha Kunkle'' was actually her daughter, Lorraine Kunkle, a Washington Mutual employee in Texas, court records said. Lorraine Kunkle authorized other employees to sign the name "Martha Kunkle'' on thousands of affidavits, the complaint said. Martha Kunkle died in 1995 and never worked for Washington Mutual or Providian, court records said.

The Cole case alleges that Portfolio and CACV bought charged-off debt from Washington Mutual and that the bank operated "a false affidavit factory.

I pulled the affidavit from my boyfriends case and sure enough, it is signed by Martha Kunkle/MM.

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Hi Judyg80r,

I'm a reporter with the Wall Street Journal, and I'm researching an article about some of the major debt buyers and collection agencies. I saw that you mentioned in April that the affidavit in your boyfriend's case was signed by Martha Kunkle. If you'd be willing, could you give me a call or shoot me an email as I have a couple of questions related to when he was sued and for how much etc.

You can reach me at (212) 416-2665. Thanks!

Jessica

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As far as proving the affidavit is a fraud, does this mean I have to prove the signer, Martha Kunkle was dead on the date it was signed?

Portfolio tried to prove the debt by filing a notarized affidavit provided by a Martha Kunkle, who purported to be Providian's agent.

"We made an effort to meet Martha Kunkle and verify what she said. It all kind of snowballed from there. They never made her available,'' Heenan said.

I pulled the affidavit from my boyfriends case and sure enough, it is signed by Martha Kunkle/MM.

Martha Kunkle is Dead

by Sam Glover on May 26, 2010

This is old-ish news, but I just got wind of it. Debt buyers and prolific lawsuit-filers CACV and Portfolio Recovery Associates, together with debt collection law firm Johnson, Rodenberg & Lauinger, were supporting their lawsuits with affidavits of Martha Kunkle. Apparently, an employee of Washington Mutual Bank (now bankrupt) told others to sign Martha Kunkle’s names to those affidavits.

The problem was that Martha Kunkle died fifteen years ago, in 1995.

The defendants settled for over one million dollars.

This is not the first time Johnson, Rodenberg & Lauinger has appeared here. Last April, a jury awarded a Montana consumer $311,000 for violations of the Fair Debt Collection Practices Act.

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I am a producer with CBS News working on a story about the debt collection industry and would very much like to speak with people who have had faulty or questionable affidavit's filed in the legal cases against them, such as those signed by Martha Kunkle.

Please give me a call at (510)517-4737. Name is Oriana.

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