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Is there a way to get a judgement vacated? I was never served.


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I pulled my credit report last night and I noticed there is a default judgement for 10,000.  the account was from a credit union that I was co-signor on.  (stupid me)  I co-signed a truck loan, and the boyfriend defaulted. He gave the truck back, and they auctioned it off.  He was never served any papers, nor did he get sued.  I was never served any papers, didn't even know anything about being sued, and I find this judgement listed on my credit report dated feb. 11, 2011.  Now on feb. 23rd, 2011 I filed for bankruptcy, which was dismissed. (due to other problems, not that one) I made 75.00 more than the feds red line for granting the bankruptcy. (so here I am 2 years later fighting off the JDC's)  Anyway, I am sure this is why they have not tried to collect on this summary judgement, but now I am afraid they will try being years later.  Or should I let sleeping dogs lie?  I am really pissed they got this without me ever being notified.

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 Now on feb. 23rd, 2011 I filed for bankruptcy, which was dismissed. (due to other problems, not that one) I made 75.00 more than the feds red line for granting the bankruptcy. (so here I am 2 years later fighting off the JDC's) 

 

If it is still your intention to file BK, or do you still believe you'd fail the means test? If so, perhaps you could do a Ch.13? 

 

As for the lawsuit, the first thing you need to do is to go to the courthouse and get a look at the court file (make a copy of the entire file if you can). These things have a way of disappearing over time. Get a consult with a lawyer regarding filing motion to vacate, take the file with you; get some advice on how to proceed. Make sure you understand what you're being told. After that, you should be in pretty good position to file your own motion.

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Agree with Nascar.  Colorado should have codified under the rules of civil procedure the ways in which one may be able to vacate or set aside a judgment.  You need to consult with an attorney to see if this is so and if it is, how the rule would apply to you.

 

In addition, it sounds like a Chapter 13 may be in your best interest if you already tried a Chapter 7.  Your payment plan even in a three year shouldn't be that high given your income.

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I would say that, like most states, if you did not file in the proper time frame you will have more problems getting it vacated. But all is not lost. There are ways to beat court ruled time frames and statute of limitations.

 

Another choice you have is to sue your ex.

 

Did you list this debt on your bk papers, if you did it could hamper things.

 

There are some doctrines that enable a person to beat the SOL that are imposed by state laws.

 

You have an argument that you were never served a notice of repo, a  notice as to when and where the auto will be sold, nor a deficiency notice. If these were never delivered to you they have no claim,

 

There is lack of process of service, you will have to prove you were not served, You will have to review the servers affidavit of service and deny what he says on it. Chances are the process server lied, happens a lot with these kind of cases.

 

One doctrine to beat the SOL is called the discovery rule(or some states call it the delayed discovery rule). But burden of proof will be on you to prove when you discovered the judgment.

Indian case. but most states follow the same guide lines.

Landers v. Wabash Center, Inc
Senior Judge Shepard’s distillation.
Under Indiana’s discovery rule, a cause of action accrues, and the statute of limitation begins to run, when a claimant knows or in the exercise of ordinary diligence should have known of the injury. The party pleading a statute of limitation bears the burden of proving the suit was commenced beyond the statutory time allowed. Once the party makes a prima facie case, the burden shifts to the other party to prove such facts as will prevent the running of the statute. Nevertheless, the ultimate burden of persuasion remains on the party asserting the bar. Determining when a cause of action accrues is generally a question of law. However, where, as here, application of a statute of limitation rests on questions of fact, it is an issue for the finder of fact to decide.

 

There is the doctrine of fraudulent concealment:This can be either by deception or by a dereliction of duty. Use this in conjunction with the lack of process of service. It is because of their violation of duty you were not served properly.

 

The doctrine of continuing wrong; The conduct of the other party's conduct causes harm and delays the SOL.

Frady v. Hedgcock (1986)
When an entire course of conduct combines to produce an injury, the conduct may constitute a continuing wrong so as to delay the running of the statute of limitations.

 

There is also conversion. If they took control of that vehicle illegally, by there violation of their duty or fraudulently, they have committed conversion. Conversion, exerting unauthorized use or control of someone else's property. You were a co borrower so you had interest in the property. How was the truck titled both names or just your ex? Any time you co borrow, title it in both names. Contrary to popular belief, the bank does not own your property when you get a loan, you own it and the bank has a lien, The lien can be used to transfer title. As far as the court is concerned the legal owner is whom ever the name is on the title. A bank in no way OWNS your property until they exercise the lien and the court gives an order that they can have title in their name.

 

I know there will be someone that says different so here is the legal definition of a lien: The right to retain the lawful possession of the property of another until the owner fulfills a legal duty to the person holding the property. A lien is an encumbrance on one person's property to secure a debt the property owner owes to another person. Lien if French for knot or binding, that is where the term my property is "tied up." A lein is not a complete transfer of title, it is only the right to do so if you fail in performing the contract. A lien is a passive right to retain (but not sell) property until the debt or other obligation is discharged. In other words they have to take title, by court order, before they can sell the property. This is where conversion comes into play.

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http://www.lexisnexis.com/hottopics/Colorado/

 

 

This is the rule of procedure that explains how to do this. There is even case law included in the rule. You could try suing the ex, but I don't know how far you'd get. You did sign the note, and you accepted that risk when you did. It might be a tough argument to make. Maybe they got a judgment against him too, check it out. They would do this if they could, the more chances to get paid the better.

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One doctrine to beat the SOL is called the discovery rule(or some states call it the delayed discovery rule). But burden of proof will be on you to prove when you discovered the judgment.

 

There is the doctrine of fraudulent concealment:This can be either by deception or by a dereliction of duty. Use this in conjunction with the lack of process of service. It is because of their violation of duty you were not served properly.

 

The doctrine of continuing wrong; The conduct of the other party's conduct causes harm and delays the SOL.

Frady v. Hedgcock (1986) When an entire course of conduct combines to produce an injury, the conduct may constitute a continuing wrong so as to delay the running of the statute of limitations.

 

There is also conversion. If they took control of that vehicle illegally, by there violation of their duty or fraudulently, they have committed conversion. Conversion, exerting unauthorized use or control of someone else's property. 

 

For the benefit of our readers, please provide a citation to a case where the "discovery rule" has been successfully used to vacate a judgment. Also, please provide a citation to a case where "fraudulent concealment" has been successfully used to vacate a judgment, and; where the doctrine of "continuing wrong" has been successfully used to vacate a judgment, and finally; please provide a citation to a case where a plaintiff, who was a mere co-signer to an automobile loan succeeded in bringing a conversion claim against the secured party.

 

So you don't waste too much time on the conversion issue, "An action for damages for the conversion of personal property cannot be maintained unless plaintiff had a general or special property in the personalty converted, coupled with possession or the immediate right thereto. Byron v. York Investment Company, 296 P. 2d 74 (Colo. 1956).

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One doctrine to beat the SOL is called the discovery rule(or some states call it the delayed discovery rule). But burden of proof will be on you to prove when you discovered the judgment.

 

The delayed discovery rule has nothing to do with "discovering" that a default judgment has been rendered against you.  

 

Indian case. but most states follow the same guide lines.

Landers v. Wabash Center, Inc

 

Nevertheless, the ultimate burden of persuasion remains on the party asserting the bar. Determining when a cause of action accrues is generally a question of law. However, where, as here, application of a statute of limitation rests on questions of fact, it is an issue for the finder of fact to decide.

 

 

The details in the case you cited has nothing to do with the OP's default judgment.  In Landers, the original case (cause of action) had been filed outside the SOL.  

 

 

There are some doctrines that enable a person to beat the SOL that are imposed by state laws.

 

The SOL for filing a complaint and the SOL for vacating or appealing a ruling are different issues.  State SOLs are based upon causes of actions.  A motion to vacate is not a cause of action.

 

Please provide supporting precedent in which a judgment was vacated or reversed based upon applying the standard for the discovery of a cause of action to the one year limitation in Rule 60(e).

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  • lol I think I will take the lawyer advice.  I would today fail the means test (again) but not by 75.00, but by much more as I took a 2nd job to try and dig myself out of this hole.  I have settled 5 cc cases, 2 a-1 collection company cases that were medical type collections. It was the medical that got me into this, as they to got a summary judgement without me ever being served, and garnished my wages.  I only found out about it when I got the notice from my employer.  That is what started the BK in the first place, and it all snowballed from there.  I don't know, maybe my address is hard to find lol, it is 638 1/2-- somehow that 1/2 throws people.  I have lived in the same place for 8 years, and the bills have no problem making their way to my door, so I don't think a server should have much trouble.   So now I have this judgement I just found out about, and probably 4 more cc debts out there.  I am just getting discouraged tho, that the JDC are making bank on my hardship.  I think if the big banks are willing to sell their debt, they should offer it to the person with the debt first, even if it means a hit to the credit. JMHO.

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