Please review my motion to vacate

[unc12]

This is my 1st post but i wanted to see if i did this right.

Motion below:

NOW COMES the Plaintiff, Pro Se and prays this Honorable Court to Vacate the Judgment on the basis that when the judgment was obtained in August 2009 and original suit file September 2008 the Defendants (Worldwide Asset Purchasing II L.L.C) were not authorized the collect debts in Maryland at the time because they did not have a license which is a violation of the

MCDCA BR§7-401(a): Except as otherwise provided in this title, a person may not knowingly and willfully do business as a collection agency in the State unless the person has a license.

I have attached a recent settlement between Worldwide Asset Purchasing, LLC. and the Maryland State Collection Agency: Office of Financial Regulation verifying lack of license and subsequent violation of the MCDCA.

Thanks in advance

[unc12]

*bump*

[Coltfan1972]

How did they get the judgement against you? Default, trial, stipulated judgement?

[unc12]

here's a quick rundown:

the DC were able to get a default judgement against me in aug.2009 (even though i was there)

in 2010, the dc's settled with my state's financial regulation board saying they didnt have a license before 2010.

sooooooooooo since it was over a year the judgement was entered at the time when it was proven they violated state laws i'm filing a motion to vacate based on lack of license

[Coltfan1972]

Okay, good luck, I think your in for a lot more of a fight than you think.

Did World Wide actually sue you or did they get an atty that was licensed in Maryland to sue on their behalf. Also you will need to really get a lot more detailed in your motion. You will need to lay out a time line. I would get the settlement with the state and see what it says. Then you can highlight relevant portions. You might get lucky and it inc something to cover your situation or it might say just certain accounts.

The biggest problem you will have is that the settlement, and I have not even seen it, will say something to the effect of while world wide admits no liability and does not concede they did anything wrong, the following settlement is agreed to. The reason? To avoid stuff like this from happening.

Not saying you don't have a great argument and not saying you won't win, in fact, looks like you have a shot if they sued you. However, it is not going to be as easy as a one page motion because they settled with the state.

You will basically need to take the position that they acted with somewhat of unclean hands or some other legal doctrine when they sued you. You have to get the law on your side. The judge is not going to look up a bunch of stuff for you.

You got a default is your other problem. They will argue your time to argue has passed. However your rebuttal can be the argument you should have never had to be in court to argue the case because it should have never been brought.

Next week I'm filing a case in federal court because a debt collector, not licensed in my state, contacted me. I'm actually using another Maryland case, Brandshaw v. Hilco Receivables, LLC, No. RDB-10-113, 2011 U.S. Dist. LEXIS 17954 (D. Md Feb, 23, 2011) along with some other Arkansas and 8th CIR rulings. So in a way I'm arguing something similar but don't have a judgment against me.

You have a judgement against you. So you have the burden of proof in arguing it should be vacated. Your motion reads like they have the burden of proof. You just lay out the allegations and then don't support them with anything other than your word. The judge is not going to go over the attached settlement. You have to explain it an note the relevant parts that are relevant to your case alone. Again, I think your right, and have a real shot at winning. You just have a ton more work to do.

Edited March 29, 2012 by Coltfan1972

[unc12]

The biggest problem you will have is that the settlement, and I have not even seen it, will say something to the effect of while world wide admits no liability and does not concede they did anything wrong, the following settlement is agreed to. The reason? To avoid stuff like this from happening.

Yes, there's a section in the settlement that leaves the door open saying that it doesnt affect past judgement so long as they followed the law (fdcpa,mdcpa,etc.). Since they didnt on multiple counts, that shouldn't be too hard.

You got a default is your other problem. They will argue your time to argue has passed. However your rebuttal can be the argument you should have never had to be in court to argue the case because it should have never been brought.

I wondered about this. I think I could state to the judge that I was living out of state at the time the settlement was issued or I would have filed this sooner. I did even hear about this until this past jan.

I also redid the motion in way more detail but I wanted to see if the wording was right or if I needed to change some things. I'll repost the motion later so I can get some feedback on it from anyone.

[unc12]

OK!Now its finish lets see if this motion to vacate is better for feedback:

By the way its a little long.

MOTION AND DECLARATION TO VACATE JUDGMENT

NOW COMES the Plaintiff, Pro Se and prays this Honorable Court to Vacate the Judgment on the basis of newly discovered facts as follows:

I. A default judgment was obtained in August of 2009 on the Defendants behalf as stated within the court’s records.

II. In September of 2009, the Plaintiff filed a Motion to Vacate on the grounds that the Judgment was obtain without a merit trial which was suppose to take place at the August trial date. The Motion was denied.

III. In August 2010, the Defendants reached a settlement agreement (Attached #1/Section (7-8)) with MSCA Office of Financial Regulation which stated that the defendants violated the following:

a) MCDCA BR§7-401(a): Except as otherwise provided in this title, a person may not knowingly and willfully do business as a collection agency in the State unless the person has a license

15 U.S.C 1692e: False or misleading representations: A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

c) (2) The false representation of --

d) (A) the character, amount, or legal status of any debt; or

(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.

(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

15 U.S.C 1692f: Unfair practices A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

IV. As stated in Section 19 of the settlement: The Parties here to acknowledge and agree that this Agreement, as well as the alleged conduct and facts forming the basis for this Agreement, shall not in any way adversely impact Respondent’ applications for Maryland State collection agency licenses, nor shall this Agreement impact Respondents’’ right to enforce and collect previously acquired judgments provided that such collection efforts are conducted in compliance with applicable law.

V. Since “applicable law” includes: the MCALA, MCDCA and the FDCPA in which the Agency was allowed to bring actions against, the Defendants, when the suit was legally filed, were in violation of the following:

a) MD. Code Ann. CTS. AND JUD. PROC. § 5-101: Three-year limitation in general

A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.(Proof Attached #2.)

The date of “last payment” was July 2005 which started the SOL and the suit was legally filed in September

Md. CL Code Ann. § 13-301: Unfair or Deceptive Trade Practices (Proof Attached #3)

Unfair or deceptive trade practices include any:

(1) False, falsely disparaging, or misleading oral or written statement, visual description, or other representation of any kind which has the capacity, tendency, or effect of deceiving or misleading consumers

The Defendants used a false “Certification of Proof” which came from the Defendants themselves NOT the Original Creditors based on “hearsay rules”.

15 U.S.C 1692e (2) (10): False or misleading representations via Gearing v. Check Brokerage Corp (Proof Attached#4)

(Proof #4) To summarize Gearing v. Check Brokerage Corp, the Appellee wrote two small checks which bounced. The holder of the checks had an arrangement with appellant under which appellant would collect on any bad checks. But, if appellant wished, they could return uncollected checks to the holder after 60 days. This arrangement was an "escape clause" for appellant. Appellant attempted collection under 720 Ill. Comp. Stat. 5/17-1a as the check holder's subrogee. Appellant was sued by appellee, who alleged violations of the federal Fair Debt Collection Practices Act. The lawsuit alleged that appellant's assertion it was the check holder's subrogee was a false representation in violation of 15 U.S.C.S. § 1692e. The district court agreed and granted appellee's motion for summary judgment. Appellant challenged. The court found the escape clause in appellant's contract with the check holder rendered appellant a mere volunteer with respect to its payment to cover appellee's checks. Since appellant was a mere volunteer and not a subrogee, it falsely represented itself to the lower court and, therefore, the summary judgment grant was proper.

In the Plaintiffs case the Defendants (Worldwide), were acting on their own behalf and Not the Original Creditors (Bank Of America) noting the bill of sale which relives BOA from any liability on purchased debt.

IV. WHEREFORE, since the Defendant violated the terms of settlement by violating multiple Debt Collection Acts (Federal and MD State), as the Plaintiffs in this motion I pray that this Honorable Court provide such other, different and further relief as the Court finds proper here.

[Coltfan1972]

Does the settlement agreement actually say if they follow the law and then have the FDCPA listed?

Also was this an attorney that was licensed in Maryland that sued on behalf of the collection agency or junk debt buyer?

[unc12]

Does the settlement agreement actually say if they follow the law and then have the FDCPA listed?

: there's a section in that says: The Parties here to acknowledge and agree that this Agreement, as well as the alleged conduct and facts forming the basis for this Agreement, shall not in any way adversely impact Respondent’ applications for Maryland State collection agency licenses, nor shall this Agreement impact Respondents’’ right to enforce and collect previously acquired judgments provided that such collection efforts are conducted in compliance with applicable law.

talking with the one of the lawyers in the office of financial reg. he said that if i could find something that they violated when they brought the suit, i would likely have grounds to file.

Also was this an attorney that was licensed in Maryland that sued on behalf of the collection agency or junk debt buyer?

I think he was licensed but in Md the persons who own the debt have to be licensed. in a way, the lawyer was the assignee and WAP was the assignors

[Coltfan1972]

Okay, well good luck. I think you have a shot but I think it is going to be tough. If you are determined, I bet you win.

I would 100% ask for a hearing on the matter. Don't let them just send it some opposition. They might just want to drop it if they see you are going to fight. They might want to put all this behind them.

[unc12]

Yes, i'm definitely going to ask for a hearing on this.

Also, i wonder if i can ask for an motion of dismissal at the same time if/when the vacate motion is granted?

[Coltfan1972]

Don't know, but I can't imagine that would be allowed.

[unc12]

Yea, didn't think so but since i dont mind filing them one at a time, its fine.

So, is the wording of that motion ok? maybe too excessive?

[Coltfan1972]

Defiantley not too excessive. I'd throw in more if you can find it. You have the burden of proof. You can't just make a prima facie case like you would in a regular lawsuit complaint, and get this vacated.

The assumption is the judgement is valid and the facts will be looked at in the light most favorable to the other side. Your arguments look good and solid, but I'd tweek it even more. I'd throw in the fact they were acting with unclean hands when they sued you and that fact alone should warrant the judgement be vacated. I'd argue you timely (assuming you did timely, let's hope) moved for this order to vacate.

You're relying too much on the FDCPA violations. Generally speaking, FDCPA vioations don't get a lawsuit dismissed. They just allow for a countersuit or a seperate claim. You need some other laws and theroy. That is why I'd throw in an affirmative defense of unclean hands.

[unc12]

The way I wrote the motion was so it would look like a timeline of events:

first the judgement;

then the settlement;

within the settlement, a clause that would keep the CA from being liable unless they violated the law;

stating which laws they broke that makes they liable (including the judgement being vacate and suit being dismissed)

Also, those Fdcpa violations are part of the main settlement because they also violated similar MD statues so if I can tie the settlement and my motion together, i should be ok.

P.s: the unclean hands defense would work well if i sued them later for relief also.

[Coltfan1972]

P.s: the unclean hands defense would work well if i sued them later for relief also.

Actually unclean hands means they never had the right to bring the action in the first place, due to misconduct on their part, even if their claim(s) had legal merit. I'd use it in my original arguments.

[Seadragon]

That is usually the weakest link. also bring up arbitration as a reason to get the judgment thrown out.

Did you get served and did they attach any documents to the complaint?

I mean you have to answer I would bring up the cross complaint stuff also.

So you have injury already.

Good luck I am rooting for you

[unc12]

Thanks

[unc12]

Hey just posting an update:

I sent the letter to both defendant and filed with the clerk's office and waiting for the judge to rule.

question though: is the defendant supoose to send me a copy of the response (motion to oppose) and if so can i do something about that?