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Motion to Vacate Judgement. Can you please see my rough draft


NeverServed
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Hi I am in the process of writing the court to vacate a judgement. I used the sample letter here but could use any advice you have to offer.

I am not sure if I should quote the FDCPA violations which they have commited. 1 was 1692 i (a) 2 Brought any legal action in a location other then where contract was signed or where consumer resides.

1692 (e) 10 any false representation or deceptive means to collect debt or obtain information about consumer ( not sure if this one applies because they asked for my bank account records)

They have told me they do not own the debt but represent capitol 1,

here is what I have so far any help would be great. I talked to mi court they said GA has jurisdiction now. So My goal is to get the judgement dismissed where they cannot take me back to court. But possibly try to settle with them. Or go after them for violating my rights.

Also should I put in there the discovery rule. Ga has a discovery rule the judgement is from 2008. I was not a resident of MI and I just found out about this. So could I put in there the discovery rule?

IN THE STATE COURT OF COUNTY

STATE OF GEORGIA

CAPITOL ONE BANK (USA, N.A

Plaintiff

VS

Defendant

CIVIL ACTION NO.

MOTION AND DECLARATION TO VACATE JUDGMENT

NOW COMES the Plaintiff, Pro Se and prays this Honorable Court to Deny the Plaintiffs Motion To File FOREIGN JUDGEMENT. 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: 1. Defendant was not properly served. 2. Defendant was a resident of the State of GA at time of Judgment, and Court hearing. Which took place in Michigan 3. Defendant had no knowledge of court proceedings in which defendant was not entitled the right to defend herself.

Dated: .

Also they are using my former name in this case. I should file the case with that name and then AKA my current name??

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I believe my situation is similar I have posted for help as well with the exact affidavit that you are using. Here's my question for you. How long ago was the default judgement enter? if more then 2 years I don't know what to tell you. The questions I had regarding my affidavit has to do with mailing and how, registered or certified and also if the affidavit needs to be notarized or if I need to hire an attorney as I am very far away

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I don't see it working at all. Just my opinion.

You state minimal facts and don't really support the minimal facts you do state. You don't list the ways service is legal and under what cirmustances. You don't point out how their "alleged service" does not fall into the catagory of proper service.

You don't give dates, you don't support any documents to support your proof where you live. You don't address the certificate of service. In other words you're just relying on your own self serving statements, that are probably 100% correct. You don't list laws, sections of the laws. It's like defeating summary judgment. You can't just rely on your denials. You must show proof.

You have the burden of proof. The court will start out with the assumption that the service was proper. You saying you were not properly served is not going to cut it.

In my opinion, you need to-

State where you lived and support that with proof

State how you were served and provide proof

State how you should have been served and cite proof

Then point out how all the factors = improper service.

Then you can ask for the judgment to be vacated citing the 14th amendment right to due process.

The way your motion is written right now is like telling the judge you did not run the stop sign with the cop says you did, and then resting your case and expecting to win.

You have to tell a story, support that story with documents and proof, point out the law that your story falls under, and then show how the law your story falls under was violated, show how you have been prejudiced, and then state your claim for relief. In this case the judgement being vacated.

Edited by Coltfan1972
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I don't see it working at all. Just my opinion.

You state minimal facts and don't really support the minimal facts you do state. You don't list the ways service is legal and under what cirmustances. You don't point out how their "alleged service" does not fall into the catagory of proper service.

You don't give dates, you don't support any documents to support your proof where you live. You don't address the certificate of service. In other words you're just relying on your own self serving statements, that are probably 100% correct. You don't list laws, sections of the laws. It's like defeating summary judgment. You can't just rely on your denials. You must show proof.

You have the burden of proof. The court will start out with the assumption that the service was proper. You saying you were not properly served is not going to cut it.

In my opinion, you need to-

State where you lived and support that with proof SO SHOULD I ATTACH SOME TYPE OF PAPERWORK TO PROVE WHERE I LIVED AT THE TIME? I HAVE A BUNCH OF RECORDS TO PROVE I LIVED IN GA.

State how you were served and provide proof I AM WAITING ON MICHIGAN TO SEND ME PAPERWORK. THEY STATED I WAS SERVED BY WHOEVER SERVED ME TAPING IT TO THE DOOR. I HAD NOT BEEN RESIDING IN THE STATE FOR OVER 2 YEARS.

State how you should have been served and cite proof WHERE CAN I FIND THIS INFORMATION? IN GA TO MY KNOWLEDGE THEY CANNOT TAPE IT TO YOUR DOOR. BUT WHICH LAW SHOULD I CITE MICHIGAN OR GA. SINCE I WAS A RESIDENT OF GA

Then point out how all the factors = improper service. SO BASICALLY SUM IT UP AS IMPROPER SERVICE DUE TO THE ITEMS LISTED ABOVE.

Then you can ask for the judgment to be vacated citing the 14th amendment right to due process. WOULD I ASK THIS IN THE MOTION TO DISMISS? OR IF I GET MY DAY IN COURT.

The way your motion is written right now is like telling the judge you did not run the stop sign with the cop says you did, and then resting your case and expecting to win. I HAVE NO IDEA HOW TO WRITE THIS I AM ADDING MY AMMENDED ITEMS.

You have to tell a story, support that story with documents and proof, point out the law that your story falls under, and then show how the law your story falls under was violated, show how you have been prejudiced, and then state your claim for relief. In this case the judgement being vacated.

SO WOULD I DO THIS IN THE MOTION TO VACATE OR EXPECT TO DO THIS IN COURT?

IN THE STATE COURT OF COUNTY

STATE OF GEORGIA

CAPITOL ONE BANK (USA, N.A

Plaintiff

VS

Defendant

CIVIL ACTION NO.

MOTION AND DECLARATION TO VACATE JUDGMENT

NOW COMES the Plaintiff, Pro Se and prays this Honorable Court to Deny the Plaintiffs Motion To File FOREIGN JUDGEMENT. 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: 1. Defendant was not properly served, according to the court in Michigan the notices were taped to the door. . 2. Defendant was a resident of the State of GA at time of Judgment In July of 2008. 3. Defendant had no knowledge of court proceedings in which defendant was not entitled the right to defend herself. 4. Defendant has still not been served in this case which has been transferred to GA.

Dated: March 7, 2012

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