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Questions about judgement (6 years old)


ms406
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I could really use some help understanding the complicated world of credit collections right now. I recently uncovered something on my husband's record that I want to understand and try to take care of.

Some of the facts (We are in NYC):

This past year, we found out that my husband had a default judgment on his credit report. I was checking our credit for the first time since we hope to get a mortgage this year if we find a home. That's the first time that we saw he had any credit issues. His SS# was new since 2010. Before that he had only a Tax ID number.

Based on the judgement listed on the credit report, I did some research at the Civil Court. Found a default judgment from 1/17/2006.

1. Who is the named plaintiff in the suit?

CCU, LLC

2. What is the name of the law firm handling the suit?

Cohen & Slamowitz

3. How much are you being sued for?

~$3,500 including fees. According to the papers, the original debt (last statement) was last requested on July 15, 2004.

4. Who is the original creditor? (if not the Plaintiff)

Citibank

5. How do you know you are being sued? (You were served, right?)

Found on credit report. He was never served.

6. How were you served? (Mail, In person, Notice on door)

Never served.

In the court papers, they claim they sent a "copy of the summons in separate post-paid envelopes in an official depository of the US Postal Service addressed to defaulting defendant's last known residence.... More than 20 days have elapsed".

The affidavit of service says that it mailed the "Summons and Complaint" on July 11, 2005. The address listed is a rental address my husband lived at in NYC, but the apartment listed is simply "Apt 2". This building has ~50 apartments on the each floor. So the apartments are 2A, 2B, 2C, 2D, etc. Needless to say, something that just says "Apt 2" was never delivered. A box is also checked claiming it "Affixed to Door" a copy, but that never happened either (they obviously didn't know which apartment on the 2nd floor). Another box is checked for "Other" and states "Address confirmed with Neighbor "Jane Doe"."

In summary, he was never served.

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

Again, this was from 2004, so my husband's memory from 8 years ago is that he did have a debt with Citibank from a credit card, but he remembers settling with them and mailing payment after a bunch of late notices.

9. What state and county do you live in?

NYC (Queens)

10. When is the last time you paid on this account?

Had to be 2004.

11. What is the SOL on the debt?

NY is 6 years, but I don't know what happens when it is a judgment?

12. What is the status of your case?

Default Judgment from January 2006

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No, just doing our research now since we just found out about this.

14. Did you request debt validation before the suit was filed?

No. Unaware of the suit before it was filed.

This is what I was aware of from requesting the records from the Civil Court after seeing the judgment on his credit report.

THEN, this week, we received a letter at my husband's place of employment. It is a copy of a letter for income execution, describing that "the following judgment was duly entered in favor of the plaintiff (judgment creditor)" with the date of 1/17/2006. It lists my husband's last known address as an apartment in Manhattan that I lived in before we were married and that he never lived in. They show his SS# as his old tax ID #. Then there is a copy of a letter from the Marshal of NYC describing a 10% levy that should be taken from his wages.

Why are they suddenly making contact after this much time? They never reached out to his work before. The interesting thing is that my husband's place of employment is a small business that my husband owns... I doubt they know this.

Why would it list an old rental address of mine as his last address when he was never connected to it?

And why haven't we heard from this collectors and now they come out of no where?

What happens with a judgment? I am angry because he was never served 6 years ago! This seems so unlawful.

What are our next steps? Do we need a lawyer?

Thank you to anyone that can help. :confused:

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Why are they suddenly making contact after this much time? They never reached out to his work before. The interesting thing is that my husband's place of employment is a small business that my husband owns... I doubt they know this.

Why would it list an old rental address of mine as his last address when he was never connected to it?

And why haven't we heard from this collectors and now they come out of no where?

What happens with a judgment? I am angry because he was never served 6 years ago! This seems so unlawful.

What are our next steps? Do we need a lawyer?

Probably no one here can give solid answers to your questions. We're not privy to the inner workings of the people collecting this judgment. Possibly they've had a breakthrough in their skip-tracing efforts, due to a new entry in your credit report, or whatever.

In a perfect world, you would be able to contest the judgment and get it vacated (overturned) due to improper service, and you have some evidence to support that position. Unfortunately, having default judgments reversed must often be done within a limited time frame, like one year. It's a nasty catch 22 if a judgment creditor can let things sit idle until this protest window closes.

Unless more knowledgeable forum members step up, consulting a lawyer certainly can't hurt, and he/she will be able to give you solid answers and advice. You should consider using the lawyer search feature at:

National Association of Consumer Advocates | Consumer Protection Advocates and Attorneys - Help for Consumers

to find a lawyer in your area who specializes in this field. You may get the answers you need during an initial phone call that costs you nothing.

Good luck.

DH

Edited by debtorshusband
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Thanks. Roughly what does a lawyer cost? I was just starting to look into vacating a judgment, and came across this:

"There is a time limit for moving to vacate a judgment because of excuseable default -- one year from the date you were served with a copy of the judgment. (If you were never served with a copy of the judgment, your one-year clock has not started.)"

So the one year wouldn't apply for us since he was never served.

What happens if the employer doesn't levy wages?

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Lawyers usually charge by the hour. I can only give you one data point. Five years ago, hiring a lawyer to handle my wife's case ran $275/hour. But most lawyers will offer an initial consultation for free or very cheap, and certainly the first phone call is free. And if you have a case to claim damages, the lawyer may work on contingency, so you don't need to put any money up front.

The wording you found is certainly very encouraging with regard to getting the judgment vacated. It occurs to me that the plaintiff may be in for a scolding if this ever gets in front of a judge. Even forgetting the improper service of the Summons and Complaint, I think they are supposed to serve a copy of the judgment before they can enforce the judgment.

It sounds like your husband is self-employed, so I don't know what happens if he rejects the garnishment order.

I think asking a lawyer these questions is the way to go. Just keep this in mind: if you succeed in getting the default judgment vacated, it may only get you service of the lawsuit and the chance to defend yourself against it as the case goes through normal channels. So you'll want to dig up any evidence you can about any payments and settlements. Also, the Statute of Limitations was probably "tolled" (it stops running) once the lawsuit was filed, so the time that passed since then doesn't help you in that respect.

Good luck.

DH

Edited by debtorshusband
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I think asking a lawyer these questions is the way to go. Just keep this in mind: if you succeed in getting the default judgment vacated, it may only get you service of the lawsuit and the chance to defend yourself against it as the case goes through normal channels. So you'll want to dig up any evidence you can about any payments and settlements. Also, the Statute of Limitations was probably "tolled" (it stops running) once the lawsuit was filed, so the time that passed since then doesn't help you in that respect.

DH

Thank you again, very much, for your responses. It's very helpful. So even though the "debt" was from 8 years ago, it's not past SOL because there was a lawsuit filed in 2005/2006? This is crazy. I wish we'd known about it 6 years ago to take care of it.

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So even though the "debt" was from 8 years ago, it's not past SOL because there was a lawsuit filed in 2005/2006?

That's right. The SOL is the period during which a creditor can turn to the courts for relief. They just have to file their suit before the SOL expires. That seems to be the only thing these jokers have done right.

I hope this all works out for you. Let us know what the lawyer has to say.

Regards,

DH

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Here's some information you may find interesting:

Debt Collection - Cohen & Slamowitz - New York Consumer Protection Attorney

To whet your appetite, here's a sample:

"Cohen & Slamowitz has been sued repeatedly by New York consumers for its unfair and deceptive debt collection practices. For example:

•Earlier this year, Schlanger & Schlanger LLP along with co-counsel Roddy, Klein & Ryan brought t a class action lawsuit against Cohen & Slamowitz and several of its attorneys for violation of the Fair Debt Collection Practices Act (FDCPA). The case relates to collection actions taken on judgments obtained via fraudulent service of process of which Cohen & Slamowitz had knowledge. Specifically, in 2006 a process server who had spent years working for Midlantic Process admitted under oath that his former employer, who worked extensively for Cohen & Slamowitz, systematically filed thousands of false affidavits with New York courts."

Maybe the Schlanger's are the attorneys you should call.:)

DH

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I would not assume that the limited time to set aside a default applies to your case. If your defense of no service holds, there never was a valid case and the court had no jurisdiction to enter the judgment in the first place. It's similar to what happens if a creditor gets a judgment in one jurisdiction and tries to collect on it in another. Your only defense tends to be jurisdictional - either you are not the proper defendant, or if you are the correct defendant you were never served, or some other standing or jurisdictional error. You lose the ability to contest the merits of the case. So your defense sounds like a jurisdictional issue. My suggestion is to call an attorney and get some legal advice based on your whole picture and jurisdiction.

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One question I have on this case is SOL. One of the reasons we have SOL is so that a defense does not have to depend on records that were considered (by the SOL statute) reasonably old. If this judgment is vacated, does that give the plaintiff a new opportunity to file? If they do, can defendants use SOL now ... on the basis that they no longer have records to establish a defense, because they were discarded after SOL?

I see the failure to serve as an error on the part of the plaintiff, even if it was just some clerk failing to type a letter following the number in the apartment number AND this not being returned by their service processor who should have discovered the problem and returned it to be fixed (and it may have been returned, but not fixed and they allowed the case to go on). Being an error on the part of the plaintiff (as opposed to things like the defendant evading service), they have lost their defense against the SOL defense. But is that valid legal argument?

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One question I have on this case is SOL. One of the reasons we have SOL is so that a defense does not have to depend on records that were considered (by the SOL statute) reasonably old. If this judgment is vacated, does that give the plaintiff a new opportunity to file? If they do, can defendants use SOL now ... on the basis that they no longer have records to establish a defense, because they were discarded after SOL?

I see the failure to serve as an error on the part of the plaintiff, even if it was just some clerk failing to type a letter following the number in the apartment number AND this not being returned by their service processor who should have discovered the problem and returned it to be fixed (and it may have been returned, but not fixed and they allowed the case to go on). Being an error on the part of the plaintiff (as opposed to things like the defendant evading service), they have lost their defense against the SOL defense. But is that valid legal argument?

I am very interested to know if this is the case for us.

In the papers to vacate the judgment, it also asks if you would like to enter defenses. One of them is SOL... The improper service I think it obvious. However, I don't know how that affects the SOL...

Another defense is "no debt collector's license number in the complaint". I don't see one anywhere. Where would I find that? I don't know if I should list defenses, but I would like to understand what they are.

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