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Default on me byMidland,Alternative Service Used, Passed SOL.. HELP! Want to Vacate.


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This is a nightmare still playing out. In the abused courts of Arizona.

Midland sued me in 2007. Service attempted but never completed due to not having apartment address. A YEAR later in 2008, they asked the court for extension of time and granted, though they only had 120 days to serve.

Service was attempted in 2009... with alternative method requested AFTER 120 day extension expired which was granted in error in late 2008. Posted to my door and mailed with a receipt. Not living at the place at the time, was living with girlfriend but paying rent still. Never saw anything on or near my door anytime in 2009 and never received mail.

Default taken late 2009 and Garnishment began Fall 2010 (just recently)

SOL in AZ is 3 years on open contracts which there are a few cases/rulings stating as such in AZ already. Debt was already 5 1/2 years passed by the time initial filing. Original CC not even in business anymore. Honestly 100% no personal knowledge of ever having CC from stated bank. Orig complaint contained affidavit signed with a business address in CA and Notary in MN by one of these Robo-Signers for midland and generic contract terms, no signature. Pulled papers franticly from court after garnishment and discovered all this.

I would like to stop garnishment and get the Default Judgment set aside on the basis of lack of subject matter jurisdiction. Appeal period has ended but I read there are no time limits to set aside judgment based on lack of subject matter jurisdiction? Anyone have any feedback/advice?

I've spoken with several attorneys in AZ. They state I have a chance.. But it’s an uphill battle and it would cost me more than it is worth so I decided to go Pro Se.

What would be the steps to get this stopped? I've requested a hearing on the garnishment. Is there anything such as a Motion for Emergency Court Order to Stop Garnishment? How would I approach this to set aside default based on lack of subject matter jurisdiction? I doubt the court had personal jurisdiction due to lack of delayed service. Request and extension granted a whole year later after complaint filed when in AZ they only have 120 days. Original complaint did not contain apartment address.

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Guest usctrojanalum
Request and extension granted a whole year later after complaint filed when in AZ they only have 120 days.

Going to need a better argument than this. They asked a judge for something and the judge gave it to them? There is nothing you are going to be able to do about that.

Also if you want to have this vacated, look into having the judgment set aside on the basis of lack of personal jurisdiction and the SOL expiring before the date the suit was filed. The court most likely had subject matter jurisdiction over the case.

I'm also just a little confused how you can say this is a from a credit card you know nothing about but yet you are sure the Statute of Limitations expired? That part of the story does not really add up.

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Going to need a better argument than this. They asked a judge for something and the judge gave it to them? There is nothing you are going to be able to do about that.

Also if you want to have this vacated, look into having the judgment set aside on the basis of lack of personal jurisdiction and the SOL expiring before the date the suit was filed. The court most likely had subject matter jurisdiction over the case.

I'm also just a little confused how you can say this is a from a credit card you know nothing about but yet you are sure the Statute of Limitations expired? That part of the story does not really add up.

Well quite simply I have no idea what this NAME OF BANK credit card was from. The affidavit notarized by the JDB had a statement date of Early 2002. SOL on open account/contracts as ruled in Arizona is 3 years though this is still being frought case to case. No written contract with my signature was provided in the case file.

My main question is there is no doubt this would have been thrown out if I was served and knew this was going on and fought it. It's midland for crying out loud. It sucks to find out when your pay check is gone. How do I overcome the alternative service method in regards to persona jurisdiction. I too will use the SOL/Subject Matter Jurisdiction.

As for the 120 days expiration and the court not granting it UNTIL a YEAR later... even if the judge signed off on it.. wouldn't that still be fraud the court committed upon it self?

My only other option is to quit my job NOW and move. I was already in the process of moving to another state.

The credit report is spotless so bankruptcy is out of the question. (the judgement is not on the credit report as of a year past the default)

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I'm also just a little confused how you can say this is a from a credit card you know nothing about but yet you are sure the Statute of Limitations expired? That part of the story does not really add up.

To clarify this, I saw the date on the affidavit of last account with oc. This is all I have to go on. I am going by that date on the affidavit since this is the date used for SOL. It was 5 years passed then they filed.

For all I know, this could have been a case of identity theft. I've had 3 credit cards my entire life. All 3 are current, active, in good standing with Account Open since 1999 dates on them.

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As for the 120 days expiration and the court not granting it UNTIL a YEAR later... even if the judge signed off on it.. wouldn't that still be fraud the court committed up on it self?

Nah, judges basically can do whatever they want.

My only other option is to quit my job NOW and move.

This seems a tad bit extreme.

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I don't know Arizona law as I am not admitted to practice there but I think you have a very good chance at prevailing. Default was obtained through the use of a fraudulent affidavit. That is grounds in most jurisdictions, to vacate the default which, in turn, may stop the garnishment prroceedings.

I would keep looking for a lawyer to help you out. A NACA lawyer should see that there are FDCPA claims here that would make the case worthwhile.

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Nah, judges basically can do whatever they want.

This seems a tad bit extreme.

Not too extreme. I have already given away most of my stuff as I was planning to move to Texas January 1st. Basically all I would be doing is moving it up 2 months and not working simply for a void default judgement. I am going to fight it though until and even after. God willing this will end up in US District Court with me doing the suing.

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I don't know Arizona law as I am not admitted to practice there but I think you have a very good chance at prevailing. Default was obtained through the use of a fraudulent affidavit. That is grounds in most jurisdictions, to vacate the default which, in turn, may stop the garnishment prroceedings.

I would keep looking for a lawyer to help you out. A NACA lawyer should see that there are FDCPA claims here that would make the case worthwhile.

I'll keep looking. Thank you. Every lawyer I talk to balks when I tell them I did live at the address, or at least paid rent there. No one seems to care about the sewer service. I'll keep looking. There is only one guy in my county listed on NACA... he wanted me to file bankruptcy as the quick way to fix this. I'll have to look in another county and hope they want to come down to my little county where I'm at.

Edited by emode02
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In my view, it is not so much the sewer service. That is tough to prove and it is a he said, she said situation.

The affidavit is another story. I have seen that one myself. Show that to a Judge and I think you will get your default lifted.

I too realize the service may be hard to contend with.

But when you mention the affidavit... what are you implying?

The affidavit signed by Midland with a business address in California and a Notary in Minnesota stating debt and date? Fight it on that, regarding Subject Matter Jursidiction/etc?

Or the affidavit of service, in regards to personal jurisdiction?

Help!

In addition, I also have a garnishment hearing soon. I'll have to research that to see what all exactly I say or do there. Perhaps I should bring up the affidavit/etc and state there is a motion to set aside default filed and pending?

Thanks so much! your postings and with usc's are very much appreciated.

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"Borrowed from BV80's post reply" (TY)

You have ample evidence. Midland's affidavit is bogus. The affiant has NO personal knowledge of the debt because Affiant:

1. Is not an employee of the OC, therefore does not have access to all records created and maintained by the OC.

2. Does not have personal knowledge of the record-keeping methods of the OC.

3. Only has access to records in the possession of Midland.

4. Since Affiant is not employed by the OC, has no knowledge of the OC's record keeping methods, and does not have access to all records created and maintained by the OC, the Affiant cannot claim personal knowledge of the alleged debt, NOR can the Affiant testify as to the accuracy of the alleged debt.

Lack of Standing: Midland has not proven they own the debt, so they have not proven they are the party in interest.

If Midland does not have anything connecting your specific debt to the purchased portfolio, they have not proven ownership, so they haven't proven they have the right to collect.

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Edited by hopefulscambeater.
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"Borrowed from BV80's post reply" (TY)

You have ample evidence. Midland's affidavit is bogus. The affiant has NO personal knowledge of the debt because Affiant:

1. Is not an employee of the OC, therefore does not have access to all records created and maintained by the OC.

2. Does not have personal knowledge of the record-keeping methods of the OC.

3. Only has access to records in the possession of Midland.

4. Since Affiant is not employed by the OC, has no knowledge of the OC's record keeping methods, and does not have access to all records created and maintained by the OC, the Affiant cannot claim personal knowledge of the alleged debt, NOR can the Affiant testify as to the accuracy of the alleged debt.

Lack of Standing: Midland has not proven they own the debt, so they have not proven they are the party in interest.

If Midland does not have anything connecting your specific debt to the purchased portfolio, they have not proven ownership, so they haven't proven they have the right to collect.

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Very true! That is the conclusion I have come to as well and realize if I was served properly and showed up... It would have been dismissed in a second.

However, I have a default.. over a year old. My first notification was last week with my paycheck. I have to set aside the default first though I read even if its passed the appeal time in justice court, I can make a motion in the superior court to set aside and appeal that if need be on up the chain.

Can I use that defense to attempt to set aside a default? This is in Arizona. I plan to spend time at the local law library this weekend learning rules of civil procedure. I am pissed, feel taken advantage of and pitty the worthless souls who do this for a living... especially knowing they have falsified documents. Where is the justice?

Edited by emode02
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