Being sued, out of state, unemployed, help!

[Guest COresidentsuedinWA]

My partner and I used to live in Washington state. We moved to Colorado in November of last year. A lawyer/collection agency is suing her for credit card debt. We sent a letter for validation of debt to them before we left, and did receive the invoices that showed the debt. Nothing else happened. Apparently a judgement was awarded after we moved, that were not aware of. We have not received anything from them since last year. Recently we checked the county website and found this:

10 11-22-2011 DECLARATION Declaration Of Malisa L Gurule

11 11-22-2011 JUDGMENT Judgment

12 01-03-2012 AFFIDAVIT OF GARNISHMENT Affidavit Of Garnishment 20.00

13 02-06-2012 ANSWER TO WRIT OF GARNISHMENT Answer To Writ Of Garnishment

14 03-13-2012 MOTION&AFDT EXAM OF JDGMNT DEBTOR Motion&afdt Exam Of Jdgmnt Debtor

- 03-13-2012 FILING FEE RECEIVED Filing Fee Received 20.00

15 03-13-2012 NOTICE OF HEARING

ACTION Notice Of Hearing

Suppl Proceedings 05-09-2012SP

16 03-14-2012 ORDER RE: SUPPLEMENTAL PROCEEDINGS

EXP0007 Order Re: Supplemental Proceedings

Ex-parte, Dept. Seattle - Clerk 05-09-2012

Also, my partner is unemployed and has been for several years. We are confused about the answer to writ of garnishment. We also don't know if anything has been sent to us regarding the above, as we have recieved nothing at our new address. I think maybe the 5/9/12 date is a court date.

From what I have read, if that is a court date and we don't go, she can be arrested. A couple of things. First, we can not afford to get to Washington. Second of all, she is unemployed, and there are no wages to garnish. We looked into a "slow pay motion" to pay small amounts of the debt to the court, but Washington does not do that. We can't afford a lawyer. Can we get the case dismissed since she is unemployed and owns nothing, no car, no house, nothing. Can they garnish MY bank account? How do we respond from Colorado? I am completely unsure as to how to deal with this, any help would be appreciated.

[Coltfan1972]

Answering the garnishment. Let's see, tell them they are free to garnish their 25% of nothing. In fact, your feeling like you want to get this paid quicker and they can garnish 50% of nothing.

You won't get arrested but you can't get the case dismissed simply because you have no money. If that was the case, millions of judgments a year would be dismissed. I've read that 80% of judgements go uncollected. That sounds a little high to me, but who knows. Either way they can't take what you don't have and even if there was some money coming in they could only take 25% of it (generally speaking).

[chrisbbadd]

My partner and I used to live in Washington state. We moved to Colorado in November of last year. A lawyer/collection agency is suing her for credit card debt. We sent a letter for validation of debt to them before we left, and did receive the invoices that showed the debt. Nothing else happened. Apparently a judgement was awarded after we moved, that were not aware of. We have not received anything from them since last year. Recently we checked the county website and found this:

10 11-22-2011 DECLARATION Declaration Of Malisa L Gurule

11 11-22-2011 JUDGMENT Judgment

12 01-03-2012 AFFIDAVIT OF GARNISHMENT Affidavit Of Garnishment 20.00

13 02-06-2012 ANSWER TO WRIT OF GARNISHMENT Answer To Writ Of Garnishment

14 03-13-2012 MOTION&AFDT EXAM OF JDGMNT DEBTOR Motion&afdt Exam Of Jdgmnt Debtor

- 03-13-2012 FILING FEE RECEIVED Filing Fee Received 20.00

15 03-13-2012 NOTICE OF HEARING

ACTION Notice Of Hearing

Suppl Proceedings 05-09-2012SP

16 03-14-2012 ORDER RE: SUPPLEMENTAL PROCEEDINGS

EXP0007 Order Re: Supplemental Proceedings

Ex-parte, Dept. Seattle - Clerk 05-09-2012

Also, my partner is unemployed and has been for several years. We are confused about the answer to writ of garnishment. We also don't know if anything has been sent to us regarding the above, as we have recieved nothing at our new address. I think maybe the 5/9/12 date is a court date.

From what I have read, if that is a court date and we don't go, she can be arrested. A couple of things. First, we can not afford to get to Washington. Second of all, she is unemployed, and there are no wages to garnish. We looked into a "slow pay motion" to pay small amounts of the debt to the court, but Washington does not do that. We can't afford a lawyer. Can we get the case dismissed since she is unemployed and owns nothing, no car, no house, nothing. Can they garnish MY bank account? How do we respond from Colorado? I am completely unsure as to how to deal with this, any help would be appreciated.

Were you ever served? If not the judgment is void. What entity sent you the dunning letter?

[Coltfan1972]

Were you ever served? If not the judgment is void.

Most likely, but it's not automatic. The OP will have to be proactive. Also, legal service can sometimes be something other than actually handing the summons to somebody.

[NeverServed]

Were you ever served? If not the judgment is void. What entity sent you the dunning letter?

I disagree. That judgement is valid and they will domesticate it where you are. I had the same thing happen to me 4 years ago and I'm just finding out about it now. I tried to get the motion vacated since the domesticated the judgement where I am no luck. Now I'm going after the original judgement. Call the court house and ask if you can file a motion to dismiss for improper venue explain the situation. Then send proof to the court along with your motion.

[KentWA]

I am a little more litigious than most, but since this is a CA that sued you and you were in a different state I would just sue them in CO for FDCPA violations. Some people will say that since you used to live in WA and probably got the card in WA, they can sue you there. However that is far from settled case law as the determination of where the contract was created is a matter of fact to be examined at trial and these guys will not want to go to trial. It could have been in the Banks home state, where the servers are located, where the call center is located, etc.

However most of these guys are going to yield pretty quick. Your chance of getting them to dismiss their case in WA right after you serve the CO case on them is pretty high.

[CalParalegal]

My partner and I used to live in Washington state. We moved to Colorado in November of last year. A lawyer/collection agency is suing her for credit card debt. We sent a letter for validation of debt to them before we left, and did receive the invoices that showed the debt. Nothing else happened. Apparently a judgement was awarded after we moved, that were not aware of.

You may have been served by alternative means. The State of Washington provides that a copy of the summons may be left with a person of suitable age who is resident, proprietor or agent, and thereafter mailing a copy of the summons and complaint by first class mail to the person served at his or her usual mailing address. It does not include a US post office box. See: RCW 4.28.080 (15) and (16).

If this method was used to serve you and you left a mail forwarding address with U.S Postal Office in Washington, then it will be hard to argue that you were not served, since they would have forwarded the mail to your new address in Colorado.

If, however, you did not leave a forwarding address, then you may be able to argue in Colorado that you were never served and were denied due process. Therefore, you will need to find out for sure if they served the summons in Washington pursuant to RCW 4.28.080 (16) [in lieu of service under subsection (15) of this section].

In any event, the Washington sister-state judgment will have to be domesticated in a Colorado court in the county where you reside to gain jurisdiction over your property and assets. They can authenticate the judgment in any county you move to, so moving won't help. Colorado follows the Uniform Enforcement of Foreign Judgments Act (UEFJA), so the process is fairly straight forward for the judgment creditor. See C.R.S. § 13-53-101.

Once they domesticate the sister-state judgement in Colorado, you will have a chance to object. Under the UEFJA, the Colorado court is statutorily constrained to limit its inquiry to generally jurisdictional or other procedural grounds, such as you were denied due process by not being served properly and were living in Colorado at the time.

In short, if the judgment appears to be facially valid and the creditor made a prima facia showing in Washington that you owed the debt and they served you properly, the burden shifts to the debtor (your partner) to produce evidence that they were not served.

Because you will only have one chance at challenging the sister-state judgment in Colorado, I suggest you contact a legal aid lawyer who will be able to draft a motion to vacate sister-state judgment.

Edited March 29, 2012 by CalParalegal

[legaleagle]

My partner and I used to live in Washington state. We moved to Colorado in November of last year. A lawyer/collection agency is suing her for credit card debt. We sent a letter for validation of debt to them before we left, and did receive the invoices that showed the debt.

I think this may come up as an issue. You affirmed to them that this was your valid address when you asked for validation, and that is where they likely had you served, probably very shortly after. If you moved and did not inform them of the new address, it isn't going to look like they made any mistakes.

[NeverServed]

You cant get an OC on fdca violation. I had thought I could but you cant. I wanted to do it.

[1stStep]

You cant get an OC on fdca violation. I had thought I could but you cant. I wanted to do it.

But you can get their law firm...that's twice the fun!!

#1 - they will go hat in hand to the OC to pay for their defense and have to answer how and why they are being sued...

#2 - the OC will probably fire the law firm you sue and hire another one to make it go away.

[IndiraMehta]

It is possible to vacate the judgement, but like others said before, you will have to prove you were not served.

Since you replied to the dunning letter, you should take a second look at the debt validation sent to you. Search the forums and the site to see what qualifies as "debt validation". If what you received doesn't pass muster, then seriously consider trying to vacate the judgement and possibly counterclaim on the grounds that the debt validation you received was not consistent with the FCRA.

If you can determine you were NOT served and you want to vacate, know that you can file forms with the court via fax or mail, and it is possible to appear by phone/conference call to court hearings or case management conferences. I think you may have to file a motion or a form with the court to specifically request this prior to your hearing.

Let's pretend you decide to try to vacate the judgement. Getting something vacated gets rid of the judgement TEMPORARILY, but the effect is more-or-less a "do-over" for the suit. You still need to file an answer, and do all of the other procedural stuff as if it were fresh litigation. (NOTE: If you put up a decent argument when you move to vacate AND put forth a strong proposed answer, it is possible to scare the plaintiff into a voluntary dismissal. Particularly if it's Midland Funding or one of the sloppier CA's)

As for court costs, you can file for a fee waiver in most --if not ALL -- courthouses.

Edited March 30, 2012 by MehtaMar
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