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CIR Law Firm and improper service (help!)


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Many years ago (November of 2007) I left the US to live abroad. Because at the time I did not intend to return, I closed all my credit cards and made sure everything had a zero balance. I sent a check for the full balance amount to Capital One. I sent it registered and I know they received it, but for reasons that escape me, they did not cash the check...they also never contacted me about the account again. Seriously. Not once. I had my mail forwarded to my parents and I never saw anything when I would come back for a visit. 

Fast forward to today (10.21.2013) I am back living in the US and married. I go to my parents house (same address) and there is a letter waiting for me from CIR (first one) it says I owed Capital One and that they will settle the debt for 40% of the amount I owed (2400). I check my bank account  history and sure enough, the check was never cashed. So I owe them the money. Okay...no biggie. I call the agency and explain and they guy says I can pay them the amount and we are all square. I give him my account info and then he says "are your accounts okay?". I say i think so and log on and sure enough everything is fine. this strikes me as a weird thing to say so i ask him why he would ask that question. He says that they levied my account!!! I ask why they would send me a letter telling me to respond by 10/24 if they intended to levy my account on 10/21! He says there is nothing he can do about the levy, but i should pay him anyway and then we can see what happens. I refuse and tell him i wont pay him until i understand the levy and why it was placed. He tells me that with interest I owe 5600 and that if i dont pay him right then i will have to pay the whole amount. 

 

I race to the back and withdraw all the funds (so far the levy has not attached to my account). I then do some research and find that capital one sued me in 2009! They served someone (not my signature and not my address) during a time I can definitively prove i was not in the country (via airline tickets and the stamps in my passport). Further the judgement and levy are for 5100 not 5600. Finally they have never sent me any documents (registered or otherwise). I only know this because my county has a civil case access website that lets me download documents for a small fee. 

I do some research and find that i can ask for the court to vacate the judgement based on improper service, but i also discover that the statue of limitations for collecting a debt is 4 years in california.

 

My question is..is that true? My reading of the law has left me confused, is it 4 years since default, or 4 years since judgement? If they obtained judgement in 2009 (illegally because I was most certainly not served) can they still try to collect the debt now?

 

My county says i have 180 days from the day i discovered the judgement, to file for them to vacate the judgment. so im doing it tomorrow, on day two since discovery. But can i also ask the court to vacate based on the statue of limitations?

 

Thanks so much

 

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Nope - if you defaulted in 2007, the SOL would have elapsed in 2011. You state they sued in 2009. That is well within the statute.

 

You also have missed the time frame to get the judgment vacated - it generally needs to be done within 6 months of the judgment... 

 

You're best bet is to try to negotiate the judgment down - let them know you've left the country once, and you'll happily do so again (and take your $$$ offshore). This is their best chance to collect something. 

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But my county clearly states that i have 180 days from the time i DISCOVERED the judgement, not from the time the judgement was entered. I called the clerk and she affirmed this...am I understanding this incorrectly?

 

The website says 

 

If you were NOT PROPERLY SERVED with the Plaintiff's Claim, you have 180 DAYS from the date you DISCOVERED there was a judgment against you to file a motion to vacate.

 

 

Frankly, I was inclined to settle with them, but the fact that they levied my accounts before this deadline and that they seemed to have jacked up the price make me think something isn't right.

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