roniram

Vacating Judgment in KY

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Just received a notice of garnishment for a judgement that was done on June 27th. I have 10 days to file an appeal. I am submitting a Motion and Declaration to Vacate judgment because I never received any notification of the hearing date. The plaintiff's attorney already stated that they sent the notice to my previous address, when they initially served the orignial summons to my work address. i believe they did this on purpose in order to make sure I did not show up. I originally filed a respone to their original summons last year when they filed this lawsuit.

So, do i have a chance based on they sent the notice of hearing to the worng address? I want to fight this becuase they have not provided valid proof (they sent a copy of a "screen printout" of a balance.)

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Below is what I am going to file. Please evaluate to the best of your ability. I appreciate the help.

IN THE DISTRICT COURT OF THE STATE OF KENTUCKY

IN AND FOR THE COUNTY OF XXXXXXX

XXXXXX XXXXXXX, Plaintiff

vs.

XXXXXX XXXXXXX, Defendant.

Case No. X-XX-XXXXXX

MOTION AND DECLARATION TO VACATE JUDGMENT

NOW COMES the Plaintiff, Pro Se and prays this Honorable Court to Deny the Defendant's Motion to Dismiss and Motion for Sanction for the following reasons:

1. Relief requested. The defendant(s) move(s) the court for an order vacating the judgment entered in this action and staying enforcement of the writ of restitution until the motion can be heard.

2. Statement of facts and issues. This motion is based on the following grounds: Plaintiff did not properly serve defendant with the date and time of the show cause hearing. Plaintiff sent notice to defendant previous mail address. Defendant was unable to provide proof that the debt in question was not a valid debt. Plaintiff originally only provided a copy of a computer screen printout as proof of debt.

Dated: 07/01/2011

______________________________

Defendant(s) (Signature)

XXXXXX

DECLARATION

I, XXXXX X XXXXX declare as follows:

1. I am the defendant in this unlawful detainer action.

2. I request that the judgment entered in this action be vacated for the following reasons: The Plaintiff never provided any proof that the debt was mine under the FDCPA.

I certify under penalty of perjury under the laws of the state of KENTCKY that the foregoing statement is true.

Signed in XXXXXX, KY on 07/01/2011.

__________________________________

Signature

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Below is what I am going to file. Please evaluate to the best of your ability. I appreciate the help.

IN THE DISTRICT COURT OF THE STATE OF KENTUCKY

IN AND FOR THE COUNTY OF XXXXXXX

XXXXXX XXXXXXX, Plaintiff

vs.

XXXXXX XXXXXXX, Defendant.

Case No. X-XX-XXXXXX

MOTION AND DECLARATION TO VACATE JUDGMENT

NOW COMES the Plaintiff, Pro Se and prays this Honorable Court to Deny the Defendant's Motion to Dismiss and Motion for Sanction for the following reasons:

1. Relief requested. The defendant(s) move(s) the court for an order vacating the judgment entered in this action and staying enforcement of the writ of restitution until the motion can be heard.

2. Statement of facts and issues. This motion is based on the following grounds: Plaintiff did not properly serve defendant with the date and time of the show cause hearing. Plaintiff sent notice to defendant previous mail address. Defendant was unable to provide proof that the debt in question was not a valid debt. Plaintiff originally only provided a copy of a computer screen printout as proof of debt.

Dated: 07/01/2011

______________________________

Defendant(s) (Signature)

XXXXXX

DECLARATION

I, XXXXX X XXXXX declare as follows:

1. I am the defendant in this unlawful detainer action.

2. I request that the judgment entered in this action be vacated for the following reasons: The Plaintiff never provided any proof that the debt was mine under the FDCPA.

I certify under penalty of perjury under the laws of the state of KENTCKY that the foregoing statement is true.

Signed in XXXXXX, KY on 07/01/2011.

__________________________________

Signature

I think the underscored you meant to say Plaintiff instead of defendant.

Here is a link of what is considered when trying to get a Motion to Vacate.

Kentucky Rules of Civil Procedure 60

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Interestingly, just received the notice of Judgement Summary AFTER we received the Notice of Rights To Assert Exemption To Wage Garnishment. This law firm is sneaky...they think they can win, and immediately collect money.

By the way, can we file a stay to prevent the Wage Garnishment Notice from being enforced? They sent this to my wife's employer the same day as the Summary Judgment even though they were suppose to wait 10 days according to state law from what I can tell.

Any comments are greatly appreciated!

IN THE DISTRICT COURT OF THE STATE OF KENTUCKY

IN AND FOR THE COUNTY OF CHRISTIAN

XXXXXXXXX, Plaintiff

vs.

XXXXXXXXX, Defendant.

No. XXXXXXXX

MOTION AND DECLARATION TO VACATE JUDGMENT

NOW COMES the Defendant, Pro Se and prays this Honorable Court to Deny the Plaintiff's Summary Judgment for the following reasons:

1. Relief requested. The defendant moves the court for an order vacating the judgment entered in this action and staying enforcement of the writ of restitution until the motion can be heard.

2. Statement of facts and issues. This motion is based on the following grounds: Plaintiff did not properly serve defendant with the date and time of the show cause hearing. Plaintiff sent notice to defendant previous mail address. Plaintiff was unable to provide proof that the debt in question was not a valid debt. Plaintiff originally only provided a copy of a computer screen printout as proof of debt.

Dated: 07/01/2011

______________________________

Defendant(s) (Signature)

XXXXXXX DECLARATION

I, XXXXX XXXXXX declare as follows:

1. I am the defendant in this unlawful detainer action.

2. I request that the judgment entered in this action be vacated for the following reasons: The Plaintiff never provided any proof that the debt was mine under the FDCPA.

I certify under penalty of perjury under the laws of the state of KENTUCKY that the foregoing statement is true.

Signed in XXXXXXX, KY on 07/01/2011.

__________________________________

Signature

XXXXXXX XXXXXX

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Why specifically did you miss the MSJ hearing? You seem to have received other information/documents concerning this case. It has to be a legitimate reason for not responding tp the MSJ or the court will rule aginst you. You seem to be somewhat versed in writing a motion, so it doesn't makes sense to back yourself in this corner. Sorry, I cannot tell enough from your post to direct you in the appropriate direction. I will say this, please do not take it wrong, I think you are off base. In that, you are not raising an issue that warrents justification to reverse the decision. I am on your side, you need to read the RCP's and understand them more.

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roniram, google " Kentucky Debtor Exemptions".

In my opinion, you should concentrate on exempting not just your wages, but ALL QUALIFIED ASSETS from attachment and levy.

I do suggest you run this past a bankruptcy attorney for advice. You can usually file your exemptions with the court without filing bankruptcy.

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The plaintiff's attorney sent the notice of the court date to my old address. Interestingly enough, they have my old address on all the filings, but they mailed the filings to my correct address. We talked to them, and they claimed they didn't have my new address until after the summary judgment was granted.

Based on this, I believe I have a good defense. I have the envelopes that show our correct address where they sent the notices, and the incorrect addresses on the filings. I think that can show they did this on purpose. I filed the motion to vacate yesterday, and have a hearing in a week.

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Could I ask who it is that is suing you, what law firm and what JDB (I assume the JDB or OC got a local lawyer to sue you).

Did you file a notice of appearence with your anwser. On that you demand that all filings and notices are to be sent to your home address, you definatly should have done that.

As far as getting a judgement vacated, I suppose that can really depend on the particular judge or court. The way some off these courts and judges streamline these things for the benefit of the JDB's seeing as they both are so used to defaults, they may not give you the benefit of the doubt. I have no doubt these scumbags have pulled their tricks as you have suspected.

Unless it is a matter of improper service, where it is pretty easy to get a vacated judgement, if proper service was executed it might be tougher, not impossible, but tougher. It really is going to come down to the judge and whether or not he believes you over them.

Are you able to check the status of your case online?? Not being critical, but I have checked to see if any hearings in my two cases have been scheduled for over 5 months online. I am sure to do it every 4 or 5 days, nothing ever comes up but knowing how crooked these companies are it is smart to check and not count on them to send notices to you and play by the rules.

Not being critical of you, again they are the scumbags (the JDB's), but I just kinda wonder how much attention you paid to it after you became aware of the suit through service at your work. It does take some time and attention in the beginning, but once you do some basic things to counter them, they often have no legs to stand on.

Emphasize to the judge that you don't believe that they can prove the debt they won the judgment on along with the improper notification they gave you on the hearings. It really is going to be a toss-up I hope you are successful.

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Unfortunately, this is a MSJ and the road uphill is step. It is so much easier to just show up and respond. They do not want a trial. Especially, in KY where the appellate Court has ruled in the consummer's favor.

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fightemdontfold - I actively paid attention to this suit from the very beginning. I filed a response to their initial filing of the suit, and asked for proof of the debt. Like I said, they then sent me a screen printout from their computer of the balance due. Like if you hit "print" on your screen right now. There was no summary of the debt or anything. And they included a payment settlement. I didn't respond to this. This was over a year ago. About a month ago, I received a copy of their filing to continue the case (obviously the local court told them they were about to dismiss the case) And the next letter I received was a notice of wage garnishment (the next day I recieived the summary judgment) The legal assistant at the firm admitted they sent the hearing notice to my old address, but miraculously they had my new address to send the wage garnishment notice, summary judgment, and the continuance of the suit filing as well. Doesn't that sound suspicious? Four filings in a month, but the one that was the most important they sent to my old address.

I don't think this is a toss-up. They already admitted they sent the Notice of Hearing to the wrong address. I don't see why a judge would allow a plaintiff to send 3 notices to the right address, and get away with sending one to the wrong address. They didn't do their due diligence, so they shouldn't be allowed to automatically win their case.

I don't think they are even going to show up at this hearing. Should I also file a Motion to Dismiss this case? Can I do that before I have this hearing to Vacate Summary Judgment? Or do I have to wait? Any other advice is always appreciated.

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A Motion to Dismiss is treated the same as a MSJ. At this point, in my opinion, you need to get the Court to set aside their decision and place the case back on the active calender. It appears the mailing of the MSJ was done in error and the Judge will probably reinstate the MSJ and give you chance to respond. You are in District Court and they are more lax there than Circuit.

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From what I understand, the courts will send them a letter when they have let a suit sit for a year to see if they want to continue on or drop it, that is typical. I am without a clue on why a month later your wages were garnished, no clue but I will be sure to apply that information to my own situation, I will be extra careful here in about 5 months when my case turns one year old to look for similar shenanegans.

You said that they admitted they didn't send it to the wrong address, I think you mentioned the legal assistant told you this on the phone. I just don't know how much water that claim will hold, the scumbags will probably deny that. Unless you have her on tape saying that, that is.

Don't take offense to my comments, I have no doubt they have been as sneaky as can be with you, I hate to think that as careful as I have been that the same could happen to me.

Proof is what you need, the scumbags are not going to admit they sent anything to any address other than the one they were supposed to.

I don't think you can get the whole thing dismissed, you will do well to get the judgement set aside. The thing is if they had the hearing and you weren't there, they would have had to tell the judge that they sent you proper notification (I have observed it in the past when I have sat in on defaults). It is so quick and streamlined.

I can guarantee you they are not going to admit they sent the notice to your prior address, even though the legal assistant told you that. If you had that on tape, you would have them caught in a lie no doubt, as again, they more than likely told the judge at the hearing you missed that they gave you proper notification.

You should have a positive attitude going in there as you seem to have now, I just hope this judge doesn't bias your claims because your opponent is a lawyer that said at the last hearing that they gave you proper notification. Without written proof otherwise, the judge might not even consider it.

Even if the garnishment stands, which I hope it doesn't, I hope you get a chance to make them prove the debt by getting the judgement set aside, you still might be able to get the garnishment set aside if you can prove it will prevent you from paying for basic needs.

Again, I wish you good luck, I hope to never be in your position and would be furious if the creeps suing me tried something similar.

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You know what, I didn't even think about this before.

The fact that they let the case sit for a year, and then the judge gave them a judgement after one hearing makes me even angrier for you. That is total BS. That is the thing though, it makes me think that the judge who did that would not rule to set the judgment aside.

How long did the case set dormant?? The fact that the judge would not call for another hearing at the one you missed, a second hearing to give you another chance to contest it, bearing in mind they let the thing sit for ????? (not sure how long) is evidence that your particular court/judge is bias toward the few that fight the JDB's.

I doubt the SOB even made them substatiate anything relative to what you took issue with in your prior filings.

At the very least assert your claims with righteousness and, without getting to far out of line to where it might get to charged with contempt or something, voice your displeasure with the ruling in light of the fact that the thing had sat for so long without any action. The court should have bent over backwards to make sure you knew about the hearing, after all the court's letter to the idiots suing you seemed to wake them up to the fact that "hey we filed a lawsuit against that person".

Edited by fightemdontfold
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Fightem...I don't take offense to anything you've typed. If it appears that way, I'm sorry. Sometimes, written communication is effective in conveying what you are trying to express. I am more frustrated with this whole lawsuit process. I was told by my employer that the amount they are trying to garnish is the smallest they have ever seen. But, a grand is a grand, and I don't want to give it to them when they aren't owed it.

On Monday (7/18) I have my hearing for my motion to vacate judgement. I am assuming at that point the case will be reinstated. By the way, they can't lie about mailing it to the wrong address because in the case file, they submitted proof of service to the wrong address. The actual proof of service of all the documentation (which is on the bottom of their motions) they sent is to the wrong address, but they MAILED the last two documents (Writ of Garnishment and Summary Judgment) to my current address. So, I think the judge will just take that into account.

By the way, they did not attend the hearing themselves. They were automatically granted the summary judgment because I didnt show up. I got a call Friday from the lawyer stating she wanted to settle, but I didnt return the call. I dont expect her in court on Monday. Remember...this is a small case ($1100) so it is really a waste of the lawyer's time if they have to come to court. Especially since the court is 200 miles from their office

Once he reinstates the case, can I ask for an immediate dismissal? Based on lack of evidence (i.e. no actual bill) Or do I have to wait for another hearing? If this case is reinstated, I think I have a good chance from that point.

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You can go back in some of my past posts and see that I too think the entire process is just another sign of the corruption of the society as a whole, we agree on that 100%. I personally don't think it is a proper function of the court to even allow these JDB's to file massive amounts of lawsuits all in the hope that they win by default. Once they show the court that they cannot prove their claims there should be a higher standard of proof that they should have to show in order to even file any further suits.

The fact that the lawyer called you and even offered a settlement, and the documentation is there showing it was served at the address you are not living at, would lead me to believe that you stand a pretty damn good chance of getting the judgement vacated. Why would the lawyer try to bargain for less if the judgment was in the bag??

I have heard that before, some of these default judgements are taken care of by phone call, they don't even have to show for a hearing. I don't think that is the case everywhere.

As for the distance thing, remember the scumbag can hire a rent-a-lawyer to show up at the hearing as a warm body. Expect that guy to know next to nothing about the case and I assure you he/she will be a real winner too, that is why you go to law school so you can show up to be a warm body in a hearing for a lawyer/"law firm" that represents a client (the JDB) who files suits they cannot back with any evidence or proof. He'll be a long way from successful Ican assure you.

I am not familiar with the ins and outs of dealing with a case after a judgement has been vacated. I would advise you that you need to begin by sending them off discovery, but it might be different with it being a case with a vacated judgement.

I think the best thing you could do is start another thread in the "is there a lawyer in the house" category, right now you are in the "post judgement" sub category and I am not sure that gets as many visits. I would post something along the lines of "got judgement vacated -now what???" and wait for some advice, again the process might be different now. Perhaps the judge can give you some idea as to how things are to proceed.

Hope it went well today.

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