How to Vacate my Default Civil Claim Judgment?

[arularasu]

There is a default civil claim judgment in my credit report for an original balance due $150. Now the claim amount is $800. The credit card in dispute is the one that I have used till 2007, then I remember closing it before leaving the country in 2007. My work visa got expired and I left the country in 2007, then I came back only in 2012. So I haven’t got any notification from the creditor or from the collection agency.

Now the collection agency sued me, which I have realized only after looking at my credit report. The civil judgment has been passed in New Jersey court on Sept 2012. Now I am currently living in Texas. Below are my questions.

1. Can I file a motion to vacate my judgment? If so, what should I do?

2. What should I do to remove this civil judgment public record from my credit report?

3. Does the collection agency has the right to seize my bank account/ property in my current state of Texas.

your comments/advice are greatly appreciated.

[creonxxx]

There is a default civil claim judgment in my credit report for an original balance due $150. Now the claim amount is $800. The credit card in dispute is the one that I have used till 2007, then I remember closing it before leaving the country in 2007. My work visa got expired and I left the country in 2007, then I came back only in 2012. So I haven’t got any notification from the creditor or from the collection agency.

Now the collection agency sued me, which I have realized only after looking at my credit report. The civil judgment has been passed in New Jersey court on Sept 2012. Now I am currently living in Texas. Below are my questions.

1. Can I file a motion to vacate my judgment? If so, what should I do?

2. What should I do to remove this civil judgment public record from my credit report?

3. Does the collection agency has the right to seize my bank account/ property in my current state of Texas.

your comments/advice are greatly appreciated.

You will get incredible advice from some very educated and prepared individuals.

What I can offer is this... To vacate you are on a time table. It's been about a month since judgement. I think you have longer to appeal so you may have to do that instead of vacate.

Your situation has a lot of room to get this entire judgement yanked for now. You weren't served but you have to prove that.

If you don't attempt to stop this judgement my guess is that their whole reason for getting a default against you was to seek garnishment. Worried about that go yank your money out NOW! But honestly the first step is contacting the county court they filed and got the judgement.

[BTO429]

File a motion to dismiss for lack of service.

[arularasu]

You will get incredible advice from some very educated and prepared individuals.

What I can offer is this... To vacate you are on a time table. It's been about a month since judgement. I think you have longer to appeal so you may have to do that instead of vacate.

Your situation has a lot of room to get this entire judgement yanked for now. You weren't served but you have to prove that.

If you don't attempt to stop this judgement my guess is that their whole reason for getting a default against you was to seek garnishment. Worried about that go yank your money out NOW! But honestly the first step is contacting the county court they filed and got the judgement.

Hi creonxxx, thanks for the response. I will contact the court first thing Monday morning. if they get the garnishment order, can they seize my bank account even if I am residing in different state than the civil case filed state?

[1stStep]

No- the judgment would need to be domesticated into your home state. Keep in mind that the big national banks often do not pay attention to these technicalities.

[BTO429]

Hi creonxxx, thanks for the response. I will contact the court first thing Monday morning. if they get the garnishment order, can they seize my bank account even if I am residing in different state than the civil case filed state?

Now you have improper venue.

I would file a motion to vacate judgement/dismiss

1) Lack of process of service

2) Improper venue

I would also call the court clerk and ask for a copy of the case be mailed to you. You need to examine the process servers affidavit. If he states any facts on the affidavit that are not true they can be sued for perjury.

Now I know a lot of you will argue about this and that IIED is hard to prove, which I agree, but if it were not illegal for peocess server to lie on affidavits then why in 2010 did Las Vegas Justice of the Peace Joe Bonaventure sign an arrest warrant for suspects in a sweeping process serving scheme to file false court affidavits.

Edited October 28, 2012 by BTO429

[nascar]

If you can live with the judgment, you've really got nothing to worry about. In order to collect on the judgment, it must first be domesticated into Texas. It is doubtful that will ever happen.

Even if it does, Texas does not allow garnishment. Judgments are very difficult to execute on in Texas.

Rather than engaging in frustrating litigation in an anti-consumer state, let it go. If, as I indicated above, the judgment creditor attempts to domesticate, you'll have an opportunity to contest the validity of the underlying judgment in a much more favorable forum, Texas.

[arularasu]

If you can live with the judgment, you've really got nothing to worry about. In order to collect on the judgment, it must first be domesticated into Texas. It is doubtful that will ever happen.

Even if it does, Texas does not allow garnishment. Judgments are very difficult to execute on in Texas.

Rather than engaging in frustrating litigation in an anti-consumer state, let it go. If, as I indicated above, the judgment creditor attempts to domesticate, you'll have an opportunity to contest the validity of the underlying judgment in a much more favorable forum, Texas.

Hi Nascar,

Thanks for responding to my post. Good to know that they can't execute garnishment against me in my state with this judgment. But I am much worried about my credit report, last week my car loan re-finance got rejected and I believe that is due to this judgment. So I am planning to hire a lawyer in NJ to deal with this case. Please suggest me if you know any good credit card lawsuit laywer.

[BTO429]

Why was it filed in NJ, did you used to live there?

This is nothing you can not handle yourself. Since you live in a different state then where the suit was filed the judgment is void because the court in NJ had lack of personal jurisdiction.

Jurisdiction refers to a court’s power to hear a legal controversy and issue orders regarding it. When a court for legal reasons does not have authority over the parties to a case or the subject matter of the case, it is deemed to have a lack of jurisdiction. A court which lacks jurisdiction cannot hear the case or render any decision about it.

Jurisdiction over parties refers primarily to their state citizenship. A court in state A has a lack of jurisdiction over a citizen of state B, unless the citizen committed a criminal offense or civil wrong in state A. If the citizen of state B wishes to contest the jurisdiction of state A, he/she can file a “special and limited appearance.” This allows him/her to raise the jurisdictional objection without submitting to the court’s authority on any other issue.

"Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but, rather, should dismiss the action." Melo v. US, 505 F2d 1026.

"There is no discretion to ignore that lack of jurisdiction." Joyce v. US, 474 F2d 215.

"The burden shifts to the court to prove jurisdiction." Rosemond v. Lambert, 469 F2d 416

"Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted." Lantana v. Hopper, 102 F2d 188; Chicago v. New York, 37 F Supp 150.

Need any more case law I have tons on jurisdiction.

Judgments rendered without proper personal jurisdiction are void.

Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828):

Under Federal law which is applicable to all states, the U.S. Supreme Court stated that if a court is

"without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers."

[Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828)]

“A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere. Pennoyer v. Neff, 95 U.S. 714, 732-733 (1878).” [World-Wide Volkwagen Corp. v. Woodson, 444 U.S. 286 (1980)]

A void judgment which includes judgment entered by a court which lacks jurisdiction over the parties or the subject matter, or lacks inherent power to enter the particular judgment, or an order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court. See Long v. Shorebank Development Corp., 182 F.3d 548 (C.A. 7 Ill. 1999)

A void judgment is one which, from its inception, was a complete nullity and without legal effect. See Lubben v. Selective Service System Local Bd. No. 27, 453 F.2d 645, 14 A.L.R. Fed. 298 (C.A. 1 Mass. 1972)

A void judgment is one which from the beginning was complete nullity and without any legal effect. See Hobbs v. U.S. Office of Personnel Management, 485 F.Supp. 456 (M.D. Fla. 1980).

Void judgment is one that, from its inception, is complete nullity and without legal effect. Holstein v. City of Chicago, 803 F.Supp. 205, reconsideration denied 149 F.R.D. 147, affirmed 29 F.3d 1145 (N.D. Ill. 1992).

Void judgment is one where court lacked personal or subject matter jurisdiction or entry of order violated due process, U.S.C.A. Const. Amend. 5-Triad Energy Corp. v. McNell, 110 F.R.D. 382 (S.D.N.Y. 1986).

Judgment is a void judgment if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process, Fed Rules Civ. Proc., Rule 60((4), 28 U.S.C.A.; U.S.C.A. Const Amend. 5. Klugh v. U.S., 620 F.Supp. 892 (D.S.C. 1985).

A void judgment is one which, from its inception, was a complete nullity and without legal effect, Rubin v. Johns, 109 F.R.D. 174 (D. Virgin Islands 1985).

[BTO429]

Subject matter jurisdiction

Prerequisites for Subject Matter Jurisdiction

Subject matter can never be presumed, never be waived, and cannot be construed even by mutual consent of the parties. Subject matter jurisdiction is two part: the statutory or common law authority for the court to hear the case and the appearance and testimony of a competent fact witness, in other words, sufficiency of pleadings. Subject matter jurisdictional failings:

No Petition in the record of the case, Brown v. VanKeuren, 340 Ill. 118, 122 (1930)

Defective Petition filed, Brown v. VanKeuren, 340 Ill. 118, 122 (1930)

Fraud committed in the procurement of jurisdiction, Fredman Brothers Furniture v. Dept. of Revenue, 109 Ill.2d 202, 486 N.E.2d 893 (1985).

Fraud upon the court, In re Village of Willowbrook, 37 Ill. App.3d 393 (1962)

A judge does not follow statutory procedure, Armstrong v. Obucino, 300 Ill. 140, 143 (1921).

Unlawful activity of a judge, Code of Judicial Conduct.

Violation of due process, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019 (1938); Pure Oil Co. v. City of Northlake, 10 Ill.2d 241, 245, 140 N.E.2d 289 (1956); Hallberg v. Goldblatt Bros., 363 Ill.25 (1936);

If the court exceeded its statutory authority, Rosenstiel v. Rosenstiel, 278 F.Supp. 794 (S.D.N.Y. 1967).

Any acts in violation of 11 U.S.C. §362(a), In re Garcia, 109 B.R. 335 (N.D. Illinois, 1989).

Where no justiciable issue is presented to the court through proper pleadings, Ligon v. Williams, 264 Ill. App.3d 701, 637 N.E.2d 633 (1st Dist. 1994).

Where a complaint states no cognizable cause of action against that party, Charles v. Gore, 248 Ill.App.3d 441, 618 N.E.2d 554 (1st Dist. 1993).

Where any litigant was represented before a court by a person/law firm that is prohibited by law to practice in that jurisdiction.

When the judge is involved in a scheme of bribery (the Alemann cases, Bracey v. Warden, U.S. Supreme Court No. 96-6133; June 9, 1997)

Where a summons was not properly issued.

Where service of process was not made pursuant to statute and Supreme Court Rules, Janove v. Bacon, 6 Ill. 2d 245, 249, 218 N.E.2d 706, 708 (1955).

When the Rules of Circuit Court are not complied with.