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I have a default money judgment against me from midland funding at civil court in NY, however I was never served because they used my old address. Now I've received a letter from my bank stating they are going to allow the plaintiff to garnish my bank account in 20 days.

 

 

1. What do I ask for in my order to show cause?

2. I was advised to file a stay enforcement. What is this?

3. When and how can I ask for proof from the plaintiff?

 

Any advice will be appreciated. 

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I have a default money judgment against me from midland funding at civil court in NY, however I was never served because they used my old address. Now I've received a letter from my bank stating they are going to allow the plaintiff to garnish my bank account in 20 days.

 

 

1. What do I ask for in my order to show cause?

2. I was advised to file a stay enforcement. What is this?

3. When and how can I ask for proof from the plaintiff?

 

Any advice will be appreciated. 

 

The stay of enforcement stops them from being able to garnish your paychecks.  

 

Now that they have a judgment they don't have to prove anything to you unless you get the judgment vacated and make them sue you again.

 

If you are not comfortable filing what you need to on your own I would hire a consumer attorney because Midland likely violated the law with that sewer service to get the default judgment.  They might take the case on contingency or for a flat low fee to file the stay and vacate for you.

 

Use www.naca.net to find a recognized consumer attorney in NY first thing tomorrow morning.  CALL do not email!!

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Go to the court where it happened. Get a copy of all the paperwork filed. Especially get the copy of how you were served by the process server. Find out who it was allegedly served to. If you can prove you did not live there at the time this goes a long way to having it vacated. Come back here with the information.

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Go to the court where it happened. Get a copy of all the paperwork filed. Especially get the copy of how you were served by the process server. Find out who it was allegedly served to. If you can prove you did not live there at the time this goes a long way to having it vacated. Come back here with the information.

Ok I'm back. I have a copy and it says that it was a nail and mail and confirmed by a neighbor who doesn't even exist. 

 

They are also being represented by Cohen and Slamowitz. The judgment was filed last year. What do I do now?

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The stay of enforcement stops them from being able to garnish your paychecks.  

 

Now that they have a judgment they don't have to prove anything to you unless you get the judgment vacated and make them sue you again.

 

If you are not comfortable filing what you need to on your own I would hire a consumer attorney because Midland likely violated the law with that sewer service to get the default judgment.  They might take the case on contingency or for a flat low fee to file the stay and vacate for you.

 

Use www.naca.net to find a recognized consumer attorney in NY first thing tomorrow morning.  CALL do not email!!

 

I have to file myself because I can't afford an attorney with my account frozen. :(

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StacieM it would be great if you could respond to this forum to update us with what you did and if it turned out positive or not. My sister is in a similar situation and it appears Midland Funding LLC has a reputation for serving "neighbors", usually people you don't know or in addresses you no longer reside. Based on my research most judges will not dismiss a case simply because a non-existent neighbor was served if the company proves that the debt is in fact yours.

 

However I am talking to an attorney about a Class Action Lawsuit about this. The laws are in place for a reason, Midland Funding LLC is cannot get away with serving neighbors when the documents never actually get to you. My sister happened to be living out of the country when her supposed neighbor was served. If anyone has experienced a similar situation, I encourage you to post your story and I will contact you. 

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Howdy,

 

Found something that might help you in this one.  This is a brief that was filed in your state for an appeal.  Consumer was sued, never served, and found out years later.  She filed to have it vacated, and the court seems to have erred by assuming personal jurisdiction over her in the case, which it does not have if proper service never took place.  This has a lot of case law and statute cites in it that could help you:

 

http://www.mfy.org/wp-content/uploads/Jimenez-Brief-FINAL.pdf

 

Of special mention is the fact that three separate statutes in NY relate to getting a money judgment vacated.  Two of them assume that the court has personal jurisdiction over you in the case, but the third does not, and that is the one you want to focus on.  It would not hurt to mention the other two as well, and differentiate by showing that they make the assumption of personal jurisdiction that cannot properly be applied in this situation.  Those are CPLR § 317, Rule 5015(a)(1), and Rule 5015(a)(4).  Rule 5015(a)(4) is the one that applies to you most closely.  It states:

 

Rule 5015. Relief from judgment or order. (a) On motion. The court
which rendered a judgment or order may relieve a party from it upon such
terms as may be just, on motion of any interested person with such
notice as the court may direct, upon the ground of:
1. excusable default, if such motion is made within one year after
service of a copy of the judgment or order with written notice of its
entry upon the moving party, or, if the moving party has entered the
judgment or order, within one year after such entry; or
2. newly-discovered evidence which, if introduced at the trial, would
probably have produced a different result and which could not have been
discovered in time to move for a new trial under section 4404; or
3. fraud, misrepresentation, or other misconduct of an adverse party;
or
4. lack of jurisdiction to render the judgment or order; or
5. reversal, modification or vacatur of a prior judgment or order upon
which it is based.

 

 

The court lacks jurisdiction over you because you were never properly served the summons.  So the court cannot properly rule against you on any other aspect of the case, since there is no personal jurisdiction.  In the case I mentioned, the address was one that the defendant had never once lived at, and the planitiff's process server claimed to serve a relative that, as it later turns out, does not even exist at that or any other address.  In your case, you mentioned that the service was confirmed by a neighbor that does not exist.  How can you prove that this neighbor that is mentioned does not exist?  It would help your argument if you can provide something to the court to show that.  Consider the address of that "neighbor".  What if you were to do a records search at the county recorder's office and show that no person by that name is on record as ever having lived there?  These are the kinds of things that would support your argument that the judgment should be vacated.  

 

Wheels up, 

 

Stick

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