Received summons today in the mail

[BTO429]

recinded

Edited April 13, 2012 by BTO429

[chiquita55]

Can't you look it up on a credit report to see if they really have a judgement against you?

[BV80]

Not all judgments show up on credit reports. Does the court post cases online?

[chiquita55]

Some courts do. You can try your area to look it up and see. My court gives some info. Did they give you the court case # or anything?

[legaleagle]

Indiana Clerk of Courts: Online Docket

Check this out, Gunny. Maybe you can find it here. Semper Fi. My uncle went in with the first wave at Iwo Jima. Family tradition!

[1stStep]

Sounds like they coulda sewer served you Gunny...make them pay if they did!!

[BTO429]

recinded

Edited April 13, 2012 by BTO429

[Guest usctrojanalum]

Seems they filed several affidavits of non military status. Thing is when they filed those affidavits I was on active duty and have orders to prove so.

Im gonna nail them and the process server for filing a false affidavit.

This doesn't mean they did not do their due diligence. A lot of times it is either a neighbor of yours was clueless and did not know, or that this website >>> https://www.dmdc.osd.mil/appj/scra/scraHome.do was not properly updated.

[KentWA]

That Sec Def site has been very accurate since long before 2001 as it pulls directly from the Finance Centers, so if someone is getting a military pay check they are listed. The major problem is most CAs and JDBs do not even have a proper address, little lone the required info to complete a search (i.e. proper birth date, correct spelling, etc)

[BTO429]

On 8/15/2002 R/S P/S AS me PERSONAL SERVICE.

There is no address as to where the summons was sent. I will have to find this out

9/23/2002

Affidavit Of Non-Military Service, Competency and Proof Of Claim filed

byplaintiff. Default Judgment is entered against defendant(s) in the sum

of$4,667.78 together with interest and Court costs. CCS ORDERED ISSUED.ch

I was Still in the Military in 2002 but I was in the reserves for four years, but deployed for training.

9/23/2002

Motion For Proceedings Supplemental filed by plaintiff namingMuncie Recep. &

Diagnostic as garnishee defendant. Order To AnswerInterrogatories approved.

Return date: 11/19/2002. Order To AppearIn Court approved. Hearing is set

for 11/19/2002 at 9:30a.m. NOTICE ORDERED ISSUED.

9/25/2002

CCS ISSUED

R/S P/S AS TO me PERSONAL SERVICE. I imagine it was sent to the wrong address again as before.

11/19/2002

aintiff appears. Defendant fails to appear. This cause is continued

9/9/2003

Alias Order to Appear In Court submitted and approved. Hearing is setfor

October 22, 2003 at 9:30 a.m.

9/10/2003

R/S P/S AS TO me LEFT IN DOOR AND MAILED

Probably because it went to the same vacant address again

10/23/2003

Plaintiff appears. Defendant(s) fail to appear.

Yea I wasn't in the state at this time either

9/23/2005

R/S P/S AS TO me PERSONAL SERVICE. mlr

Yea duh I was In Iraq

1/6/2006

Order To Show Cause submitted and approved. Hearing is set for

06/21/06 at 9:30 a.m. CLERK DIRECTED TO ISSUE NOTICE.

1/9/2006

R/S P/S AS TO me PERSONAL SERVICE

Duh still on active duty

6/21/2006

Plaintiff appears by its representative and by counsel, J. Thomas

Hurley. Defendant(s) fail to appear.

Yea Still on active duty

3/17/2007

Alias Order to Appear In Court submitted and approved. Hearing is set

for 05/24/07 at 9:30 a.m. CLERK TO ISSUE NOTICE.

3/15/2007

P/S RETURNED AS TO me UNABLE TO SERVE "VACANT"

yea this house was vacant since 2004 when my father filed bk. I was home from Iraq but living in a different county in the same state.

5/24/2007

Plaintiff appears in person and with counsel, J. Thomas Hurley.

Defendant(s) fail to appear due to lack of service.

I"d say so

9/16/2008

R/S P/S AS TO me PERSONAL SERVICE.

RECEIVED IN CLERKS OFFICE 09/16/08

I don not know what address this went to but i did not get service

here is where it gets screwy

11/26/2008

Plaintiff appears by counsel, and defendant Douglas Bird appears in person

and the proceeding supplemental is conducted.

I do not ever remember going to court on this, now I know the the small claims court in this area does their supplemental in the hall way and sends you home.

2/4/2012

R/S P/S AS TO me LEFT IN DOOR AND MAILED

RECEIVED IN CLERKS OFFICE 02/08/2012 AMT

It was not left in the door it was mailed from the county sheriffs office in my county.

[KentWA]

Gunny, the only thing you are going to have to nail down is where you were 11/26/2008 and submit a declaration that you were not there and not aware of the proceedings. Then motion for it to be vacated. When you go to the hearing I would suggest you go in dress uniform and a copy of your service record if you have it. Watch the lawyer expel a brick when he sees you.

[BTO429]

I could see the expression every ones face when i walk in in dress blues, all my awards on my chest and a dd214 and other service records

[1stStep]

Gunny- I hope you're prepping a motion to vacate and including service records...I imagine that motion will he half an inch thick...

This would be one for the local news to embarrass the other side...set up the interview w/ all the awards and photos behind you...just a thought...

[BTO429]

Ok I have the actual court case summary not just the docket sheet.

The case started on August 14 2002 for assigned open account.

The first court date they claim they had personal service, but there is no affidavit that states where they sent service.

On the default judgment that was signed it has a ten year old address, I moved from this house in 2001. It was my parents house, my mother died in 1998 and my father had to file bk on the house so the family all went their own ways.

I see no copy of the original papers that were supposedly served that says when the first court date would have been.

They sent rogs and discovery on 9 28 2002. and a new court date for 11-19-2002 and filed the affidavit of non military service. But nothing with the affidavit to back up their claim just the affidavit.

I was at twenty nine palms CA in 2002

Nothing went on for three years

In December 2005 they sent an order to appear for 12-25 2005, they claim personal service. I was on operation Iraqi Freedom.

I was released in Aug 28 2006

A few more court dates for 06 and 07 They claim personal service

The process servers in my area have a bad habit of putting summons in the holes of your chain link fence, rubber banding it on your mail box, putting it in your door handle or any other place they can find and then claiming personal service.

All of those summons to appear went to the above house that I had not lived in since 2001. On the court papers it even say empty vacant they sent six to the vacant house.

The court docs show an appearance by me in 2008, I do not remember that.

Now of course I have the date on march7 to go to.

Since it took her six years to serve me I am going to ask to vacte due to lack of service, if that does not work I will ask the court to reopen the case so I can properly defend it. If that don't work I'll tell the CA to drop dead im on VA disability and I have the homestead exemption and my vehicles are already under bank loans.

[Coltfan1972]

The court docs show an appearance by me in 2008, I do not remember that.

This is the only entry that concerns me. Everything else sounds like a slam dunk vacating of the judgement.

[BTO429]

Yea I know, i do not remember showing up for supplemental hearing

[Coltfan1972]

Well if you did show up then I can only assume you at least spoke a word or two. Therefore, the record should reflect some type of exchange with yourself and the judge or at least a good day Your Honor or something.

Might get a transcript of the hearing you were allegedly at?

[BTO429]

recinded

Edited April 13, 2012 by BTO429

[BTO429]

The more I research the case the more I do remember going to that court date for supplementals. I found buried in my files where I filed a motion to reopen the case because they had a judgment against me that was obtained while I was on active duty. I also put in that motion that I would give them a chance to dismiss on their own or I would file a separate suit for violation of the soldiers and sailors act. That was in Sept 08.

I see no order signed by the judge as to whether or not it was denied or reopened.

As i look through the court case papers I see where the supplemental was in Sept of 08, the following month I see where the lawyer filed with the court a voluntary with drawl from the case. It does not specifically say why.

two years later there is a motion where the new lawyer took the case.

Maybe the lawyer decided he didn't want anything to do with it after I filed that motion.

The more I think about it the more I think I gave the lawyer a copy of the motion and gave hiw 30 days to make a decision or I would file the motion, and the separate case for the Soldiers and sailors act. I am not sure if I actually filed it or not.

I do see a letter in my files from the lawyer that says he is withdrawing from the case. Maybe I just forgot about it after the lawyer withdrew from the case.

But it took her three more years to find another lawyer the try to reaffirm on the judgment? Wow a lot of dead time.

[BTO429]

I finally had time from school to sit down and really review this case. In the original complaint it is for assigned open accounts There are four different accounts listed and the amounts.

I see no affidavits from any of the the original creditors or from the collection agency. All I see is the original complaint

Comes now the plaintiff, blah blah Collections, and council blah blah, and for the cause of action against the plaintiff would say

1. The Plaintiff in a Indiana corp duly licensed as a CA

2. That as part of their regular business they accept assignment of accounts for collection.

3. That as part of regular business the Plaintiff accepted the following accounts for collection

Then lists the four accounts

That said accounts are due and payable and defendant has refused to pay said accounts.

Aug 14 2002 was the first court date. on Aug 15 the default order was signed by the judge.

The affidavit of non military status was filed on Sept 23 2002 after the judgement.

Sept 2002 the ca filed a motion for me to answer for wages etc.

Indiana small claims rule 10

( Default. If the defendant fails to appear at the time and place specified in the notice of claim, or for any continuance thereof, the court may enter a default judgment against him. Before default judgment is entered, the court shall examine the notice of claim and return thereof and make inquiry, under oath, of those present so as to assure the court that:

(1) Service of notice of claim was had under such circumstances as to establish a reasonable probability that the defendant received such notice;

(2) Within the knowledge of those present, the defendant is not under legal disability and has sufficient understanding to realize the nature and effect of the notice of claim;

(3) Either (a) the defendant is not entitled to the protections against default judgments provided by the Servicemembers Civil Relief Act, as amended (the “Act”), 50 U.S.C. appx. § 521, or ( the plaintiff has filed with the court, subscribed and certified or declared to be true under penalty of perjury, the affidavit required by the Act (i) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or (ii) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service; and

(4) The plaintiff has a prima facie case.

After such assurance, the court may render default judgment and, upon entering such judgment, shall assess court costs against the defendant.

The affidavit was filed after the default was entered. Plus the only evidence offered for evidence to support the affidavit of non military status was an affidavit by a representative of the CA

It reads being duly sworn under oath says that the defendant bto429 is/are not member of the armed forces of the US. It does not show any evidence to support the claim

The service members civil relief act clearly says the following:

(50 U.S.C. App. § 520)

In any action or proceeding commenced in any court, if there shall be a default of any appearance by the defendant, the plaintiff, before judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service. If unable to file such affidavit plaintiff shall in lieu thereof file an affidavit setting forth either that the defendant is in the military service or that plaintiff is not able to determine whether or not defendant is in such service. If an affidavit is not filed showing that the defendant is not in the military service, no judgment shall be entered without first securing an order of court directing such entry, and no such order shall be made if the defendant is in such service until after the court shall have appointed an attorney to represent defendant and protect his interest, and the court shall on application make such appointment. Unless it appears that the defendant is not in such service, the court may require, as a condition before judgment is entered, that the plaintiff file a bond approved by the court conditioned to indemnify the defendant, if in military service, against any loss or damage that he may suffer by reason of any judgment should the judgment be thereafter set aside in whole or in part. And the court may make such other and further order or enter such judgment as in its opinion may be necessary to protect the rights of the defendant under this Act. Whenever, under the laws applicable with respect to any court, facts may be evidenced, established, or proved by an unsworn statement, declaration, verification, or certificate, in writing, subscribed and certified or declared to be true under penalty of perjury, the filing of such an unsworn statement, declaration, verification, or certificate shall satisfy the requirement of this subsection that facts be established by affidavit.

Subsection 200(1) states that the plaintiff's affidavit shall set forth facts showing that the defendant is not in military service. This should require more than a statement that the defendant is not in the service. Some facts are required before the court will enter a default judgment. If the defendant is in service, the plaintiff should so state in the affidavit. If the plaintiff cannot determine whether defendant is in the service, the plaintiff must so state in the affidavit.

All this affidavit has done is make a statement and no evidence to back it up. It does not say how she determined this.

Edited March 4, 2012 by BTO429

[BTO429]

after all the ramble in the last post I have this question.

If you file an affidavit without facts to back up the affidavit, is that affidavit a false affidavit?

Since you knowingly filed such an affidavit without facts to back up the affidavit are you guilty of filing a false affidavit?

Section 200(2)

(50 U.S.C. App. § 520

Any person who shall make or use an affidavit required under this section, or a statement, declaration, verification, or certificate certified or declared to be true under penalty of perjury permitted under subsection (1), knowing it to be false, or not verifying it to be true,shall be guilty of a misdemeanor and shall be punishable by imprisonment not to exceed one year or by fine not to exceed $1,000, or both

[1stStep]

It would seem so Gunny...this could be the leverage you nned to get rid of the judgment.

Also, you might (stressing might) be able to sue the affiant for fraud.

[BTO429]

Well thats where I am kinda going with this. The problem is in order to do this I will need to file my own suit against the CA for all this.

Another question I am pondering is I have been told several times that I could not get credit due to judgments. This the only judgement on my cr.

I am wondering about financial injury as well.

[legaleagle]

Here, we call that an affidavit made in bad faith. You would have to prove that the affiant knew or should have known that the information sworn to was false or incorrect but they did it anyway. This also comes back to bite the attorney who filed it with the court. I did one of these, and it isn't over yet, altho I was ruled against because of a technicality. I added in wording designed to strike the affidavit but neglected to cite the rule of procedure for a motion to strike. I should have used preclude, or some other title. Minor, but it lost the motion for the time being. I don't know how you would actually prove the affiant knew the information was false, getting inside somebody's head is difficult. They'll claim permissible error, or that they believed the information they were provided with was true, and you now have "my word against yours." I would suggest a different attack, use some form of statutory negligence. That just attacks their professional duties, not their thoughts. Affiants have specific guidelines to follow, and so do the attorneys who submit this stuff as evidence without verifying it. It's the classic case of a circular firing squad.

[BTO429]

I would say this; many of these type of debt collection suits place the court in a situation where it needs to examine the vality of the debt, either with or without a response from the defendant.

Thus, in general terms courts rely on the assertions within an affidavit to determine whether the debt is valid and whether judgment is awarded.

Generally, affidavits are supposed to contain material facts. material facts, according to Blacks law dictionary, are ones which might influence ones decision on a matter.

So, When an affidavit is submitted there needs to be along with the affidavit the facts that were used to determine what is said in the affidavit. If no supporting evidence is with the affidavit to back up the statements, how can that affidavit be true. Even if it is the belief of the person making the statement that it is true, on what information did the person use to make the determination of the truth?

What I am leading to is trying to prove that they did not actually perform any task that may have given them any information that they used to determine that I was not on active duty

When they present that evidence and perjure themselves i will then present my evidence, my orders.