Help Vacating Default Judgement in New York

[Vidster]

Facts:

Who is suing: LR Credit 14 LLC

Location: Suffolk County Long Island NY

Attorney for Plaintiff: Mel S. Harris and Associates

Original Creditor: Providian Financial

Nature of Alleged Debt: Consumer Credit Card

Default Judgement entered September 2009

Garnishment of Wages is occuring Presently

I found out that I had a default judgement against me when my employer began witholding for a Income Execution Order. I received no summons or any notification of any kind.

I went to the courthouse after contacting the Sheriff's office and picked up a copy of the court file and also the papers to file an Order to Show Cause and Affidavit in Support of Order to Show Cause. I found that on the Affidavit filed by the Process Server that they served the summons on an adress that I had not lived at in 2 years. Further, they state that they served the papers on a person who WAS my old landlord.

I am stating in the order to show cause that I never recieved the Summons and could not because I had moved 2 years prior. I have sworn affidavit from present landlord and notice from Department of Motor Vehicles for NY that I resided here well in advance of the attempt at service at my old address.

1. Affirmative Defense: The credit card they are referencing is VERY OLD. Statute of Limitations ran well before they filed suit. They have shown no documentation validating the debt and they have not shown they have standing as owner or assignee of the debt. Are there any other defenses I should include not to miss out on any possible?

2. Is the fact that they disclosed information to my OLD landlord a violation of the FDCPA? And does this qualify as proper service?

3. The Debt is being alleged to have been entered into in 2006. This is a clear attempt to re-age the debt. Is the collector violating the law by swearing that the debt originated in a year other than the time the original account was opened?

4. Since the debt is alleged to be with Providian Financial. They are / were incorporated in Delaware. My understanding is that this fact would be used in calculating the SOL in a case in NY. Even if I use their date of 2006, the SOL for Delaware would have run. Is this a correct defense?

5. In my Affidavit in Support do I state that I want the money back that they have already taken or do I have to sue separately after the judgement is vacated?

6. Do I ask for a dismissal with predjudice in the Affidavit or when I go to court?

7. Do I need to contact the attorney for the plaintiff for any reason prior to filing the order to show cause.

I appreciate any help. I do not have the money to hire a lawyer and these attorneys are known for this kind of collection activity. Thank you!

[Guest usctrojanalum]

1. Affirmative Defense: The credit card they are referencing is VERY OLD. Statute of Limitations ran well before they filed suit. They have shown no documentation validating the debt and they have not shown they have standing as owner or assignee of the debt. Are there any other defenses I should include not to miss out on any possible?

Clean it up a bit. Use Statute of Limitations and Lack of standing to sue as defenses. Not showing documentation validating the debt is not an affirmative defense.

2. Is the fact that they disclosed information to my OLD landlord a violation of the FDCPA?

No

And does this qualify as proper service?

No

3. The Debt is being alleged to have been entered into in 2006. This is a clear attempt to re-age the debt. Is the collector violating the law by swearing that the debt originated in a year other than the time the original account was opened?

When the account was opened =/= when you defaulted on the account.

4. Since the debt is alleged to be with Providian Financial. They are / were incorporated in Delaware. My understanding is that this fact would be used in calculating the SOL in a case in NY. Even if I use their date of 2006, the SOL for Delaware would have run. Is this a correct defense?

Yes and no. The plaintiff might be able to successfully argue NY's Statute applies and therefore the lawsuit would have been filed timely.

5. In my Affidavit in Support do I state that I want the money back that they have already taken or do I have to sue separately after the judgement is vacated?

Not in your affidavit in support, but in the actual order to show cause that the judge signs. That you want all restrains lifted, garnishments vacated and any money collected returned.

6. Do I ask for a dismissal with predjudice in the Affidavit or when I go to court?

You are not getting a dismissal with prejudice in Suffolk County at an Order to Show Cause hearing. The judge will set aside your judgment, you will be required to answer and waive any jurisdictional defenses. It will then be referred to arbitration or put on the trial calendar depending on the Court you are in.

7. Do I need to contact the attorney for the plaintiff for any reason prior to filing the order to show cause.

No

[KCG116]

There a lot of places here in NY to help people with problems such as this and everyone here knows Mel Harris.

If you go to the court house they can give you lists of such places.

One is called CLARO.

Good luck!

[Vidster]

The Judge has signed the order to show casue and it is on the way to the plaintiff and the sheriff. Two quick questions:

1. Has the Statute of Limitations "Tolled" the whole time since the case was opened? And will the palintiff lose all the time that they used in the "Improper Service" if the order is vacated?

2. The order to show cause included a line "Ordered, that pending the hearing of this motion, the Sheriff and Plaintiff and all his agents are stayed from conducting any proceedings to enforce the judgement" Does this mean that they have to lift the garnishment of wages pending the hearing?

Thank you so much for your help already. I have learned that these people, Mel Harris and the LR Credit people are really awful at casuing people issues. I appreciate any information that helps get these people out of my life and money!!!