Beach Phoenix

Lawsuit, Default Judgment(s).....where to begin? Need some advice please

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Newbie here.  I have been reading all of the information on this site for several weeks now, and believe I now am "up to speed" enough to post here for suggestions and/or advice.

 

I also realize there is a basic list of questions I should repost (along with pertinent information) to get the ball rolling, but frankly I have so many issues to address, I will most likely need the assistance of the Moderator in determining which thread my posts/questions belong in.  I do know that I must address the legal issues first (like the default judgments) but after starting the ball rolling with those, I have other  "fish to fry" if I (we) are to better our credit situation.

 

Long story short - like most folks, DH and I both suffered job losses (1 month apart actually) in late 2008/2009 due to lousy economy.  Almost lost house, had car repossessed, and had to use credit cards to make COBRA payments and to pay basic living expenses.  Able to regain employment, but at nowhere near previous income levels.  Was advised by counsel (at the time) to stop paying the credit cards (which we did in 2009).  Took in terminally ill in-laws (both have now passed) DH had major health problem....life happens.  Discovered recently that DH has TWO default judgments against him, one discovered by accident (won't bore you with details) and one discovered when he was mailed a copy of a Subpoena Duces Tecum served upon the Custodian of Records for another banking institution who has NOTHING to do with the original creditor (Cap One).

 

He filed a Motion to Quash the subpoena, and the SDT was promptly cancelled by counsel for Cap One.  Presumably the original SDT was filed in order to attempt to gather info so they can collect on the Judgment, but when they saw what evidence we intended to introduce at the motion hearing, they very quickly cancelled the subpoena.

 

Fast forward to now, and we discover a second default judgment in the Court record, and SOL issues pending for us to attempt a motion to vacate the judgment due to the fact he was never served with either Complaint.  I have seen a few recent posts from others in California asking for input and advice with respect to motions to vacate judgments with no responses.  Is that because it is impossible at this point?  We are living very happily (and efficiently) without credit cards and have been for the last 5 yrs. - we don't really want or need another.  However, we are really in need of a reliable (newer) car that we can drive to and from chemo appointments, without the risk of breakdown, and in order to even have a chance to buy a newer vehicle, we need to clean up some of this "mess."  Also, the always lurking threat of a garnishment due to either of the Judgments is now in the back of our minds.

 

Specifically, looking for input from those who have undertaken motions to vacate, preferably in California.  TIA for any input or guidance you can provide. :please:

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If you can gather enough evidence that you were never properly served on the lawsuits it may be possible to get the judgments vacated.  The big issue is it is hard to follow your timeline in your post about when things happened.  If it has been more than a year since they got the judgment and you have known about them for some time it is possible the court will not vacate under the theory you should have reacted sooner knowing about them.

 

I would start with a consumer attorney and discuss your options with them since your situation is quite complicated.  I would get current hard copies of your credit reports so you know what is reporting and by whom as that will make it easier to help target what to start tackling as well.

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Thank you, Clydesmom.

 

Finding competent advice from a consumer attorney in my area will be a challenge - we were originally told when some of this started happening that it is "impossible" to vacate a judgment in California (?). Personally, I think the local attorneys are lazy and don't want to waste their time when they can make more money handling divorces, etc. DH is battling some very serious health issues, and sometimes dealing with health issues means that these sorts of credit issues take a back seat. 

 

The Cap One Judgment was apparently entered in 2011, but the subpoena wasn't issued until 2012.  The latest (surprise) judgment was filed last year, and as I mentioned, we just discovered it by a random search of records.  Unfortunately, it is quite obvious DH is very ill, and since he is the one who ultimately has to do the Court appearances, he isn't always up to that.  That is also legitimately one of the reasons why it has taken us so long to address this.  I am also the primary caretaker for my 95 year old mother, I have one minor child still at home AND I work a very demanding 40+ hour per week job.  So, doing all of  that leaves me stretched VERY thin.  DH is doing a little better at present, I have a few hours of respite care for my mother, so I have some free time on the weekends to work on this.  I found this website, and thus my post and inquiry.

 

If I can do this myself, this would be preferable to hiring an attorney (of questionable competence) with money better spent on other things more pressing (like medical bills).  Do you still believe my case to be too complicated for self-help?

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Sorry, Clydesmom, forgot to add that all of the past due debts are 5+ years old now, all but 1 or 2 medical bills have been "charged off" by the original creditors.  Some bought by JDBs and CAs, who are still reporting each and every month as if they are "new" delinquencies.  Lender who repossessed the car is still showing a deficiency amount outstanding and reporting a remaining balance due as well even though the repo took place 4+ years ago as well.  EVERYTHING reporting on my credit report (such as joint accounts - default judgments against DH were on his personal accounts) is now well outside the 4 year SOL in California, so I know I need to deal with that next. 

 

However, we  do rely on what's left of DH's income to pay our bills, and if a garnishment or levy is ever sent to his employer or made against his bank account, our family is in trouble, as we can't pay our living expenses on my income alone.  Thus the need to see if we can address the default judgments. 

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If I can do this myself, this would be preferable to hiring an attorney (of questionable competence) with money better spent on other things more pressing (like medical bills).  Do you still believe my case to be too complicated for self-help?

 

With all of this on your plate:                                          YES

  • DH is very ill
  • I am also the primary caretaker for my 95 year old mother
  • I have one minor child still at home
  •  I work a very demanding 40+ hour per week job.

Taking this on pro-se is demanding even when you are not stretched thin.  If you are over whelmed already:  nearly impossible.  That does not mean you need to hire an inexperienced lawyer.  Go to www.naca.net.  These lawyers specialize in consumer rights and while they may not be close to you that does not mean you cannot hire one that will represent you from a distance or advise you over the phone how to handle it yourself.  You need to move quickly because the window is probably still open to get them vacated.

 

 

Sorry, Clydesmom, forgot to add that all of the past due debts are 5+ years old now, all but 1 or 2 medical bills have been "charged off" by the original creditors.  Some bought by JDBs and CAs, who are still reporting each and every month as if they are "new" delinquencies.  Lender who repossessed the car is still showing a deficiency amount outstanding and reporting a remaining balance due as well even though the repo took place 4+ years ago as well.  EVERYTHING reporting on my credit report (such as joint accounts - default judgments against DH were on his personal accounts) is now well outside the 4 year SOL in California, so I know I need to deal with that next. 

 

"Charged off" is simply an accounting term that means they have written your account off on their profit and loss statements as bad debt.  It has nothing to do with how long they can report the debt or sue for it.

 

There is a deficiency balance because when a car is repossessed it is sold at auction and they typically do not sell for the amount owed on the loan but far less.  There is nothing illegal about reporting that balance.

 

The judgments are reporting on your CR because CA is a community property state and you benefited from the accounts and therefore were sued alongside him most likely.

 

However, we  do rely on what's left of DH's income to pay our bills, and if a garnishment or levy is ever sent to his employer or made against his bank account, our family is in trouble, as we can't pay our living expenses on my income alone.  Thus the need to see if we can address the default judgments. 

 

While we are sympathetic to your situation they will not care ONE bit if it puts you in financial peril.  

 

Have you considered bankruptcy?  With all the financial problems and medical bills it might be the easiest option to take care of the judgments and all the debts in one move.

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Thanks again, Clydesmom.  Unfortunately, the attorney who told us the "impossible" tale is indeed a NACA attorney (just looked it up).  No, I wasn't sued alongside my DH - the Judgments are in his name only, and do not appear on my credit report.  I have been able to see a scanned copy of the caption/summons on my County Court website, and I am mentioned NOWHERE in the documents. I should also add that I *know* with certainty we weren't properly served in either of the lawsuits.  I was able to view the Proof of Service for both Complaints, and they listed subservice at our home and gave physical descriptions of the "person served" who look ABSOLUTELY NOTHING LIKE (and in fact, aren't even the same race) as anyone who lives or has access to my household.  One of the process servers they used apparently traveled 800+ miles from their place of business to "personally serve" my DH.  I believe all it will take is  for the Judge to lay eyes on my DH and the other members of my household in order to see that the process server definitely perjured himself by signing the proof of service "under penalty of perjury."  Same as for the second proof of service from what I can tell.  They too listed they served a "competent member of the household" and that physical description is also nothing close to what any of us look like. 

 

I have asked previously referred to NACA attorney if they will provide "offsite coaching" for these issues (for a fee of course) and the answer was "no". 

 

We were going to file BK a few years ago, but could not come up with the filing fee, as we needed to use the $$ for unpaid medical bills.  We have been  informed it is now not an option, due to our "frugal living" over the past 5 years.  Not enough $$ to pay off the outstanding debts, and too much in income/assets to qualify for 7.  Due to DH's health, advised NOT to  consider 13 as the repayment schedule may *outlive* him. 

 

Maybe I need to consult another NACA attorney, but my spare time is limited, and I have so far not been impressed with the attorneys I have met with in my County.  I may have to travel to another county to  find competent representation, but for now, I am trying to do all I can in the time I  have.  I am grateful for your input and replies. xxheartxx

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Check with another attorney.  The worst that will happen is they tell you the same thing and at least you know the other one was not putting a half effort in.

 

Also you could check with legal aid to see if you qualify for their help in drafting the motion to vacate the judgment.  Law schools often offer low or no cost clinics for people in your situation that could be an option for legal help with the motion as well.

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Thank you again, Clydesmom.  I have just fired off an email requested appointment availability for a consult with another NACA attorney in a neighboring county.  Hopefully I can either set a telecon to discuss the issues, or an appointment after hours.

 

In reading through all of the materials on this site, I  honestly believe we also have FDCPA violations as well, but of course have not been addressed due to the other issues in our lives.  Maybe bringing these to light with another NACA attorney may make them more likely to be interested in this case, as it may be more "worth their while" than just tilting at windmills (if that's what they believe it to be with fighting the default judgments).  Once again, thank you for taking the time to respond. 

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My girlfriend is going through the exact same thing right now so I can give some advice based upon what I've seen and two things you should definitely look for.

 

#1:  Any motions to vacate should be supported by SWORN affidavits.  It is not enough for you to simply explain to the court that you never received notice, you must swear to it or the opposing side will immediately point this out and everything will be dismissed.  JDB Attorneys have these responses ready to go knowing full well most non-lawyers have no idea that certain things need to be sworn to. 

 

#2:  Order a copy of the complete case.  Trust me, it will help.  You can get it from the Clerk of Court.  If it is a default case, it shouldn't be that big.  The reason is, once you have the documents you can start looking for things that will aid you in your attempt to overturn it.   The two major things I would look for immediately are whether service was proper and followed the statutes, and whether there are any unliquidated amounts in the Final Default Judgment.  Liquidated means that the amount can be properly determined from a mathematical calculation based on the record.  Unliquidated amounts are amounts that can not be precisely determined.  The biggest cause of unliquidated amounts is the awarding of attorney's fees.  The Judge is without authority to make an award for an unliquidated amount without an opportunity to be heard first and a Default Final Judgment including an unliquidated amount can be overturned as Void at any time.  So, it makes sense to check the record to see if that happened in your case. 

 

Even if there isn't anything directly improper such as insufficient service, or a final judgment based upon an unliquidated amount, if service was proper but not served directly on you and the record shows you never made an appearance or filed any papers, you can still file a Motion to Vacate supported by a sworn affidavit stating the reasons why you did not receive service and plead for the court to allow you to argue the case on the merits since you did not previously have notification of the proceedings.  It depends on the Judge, but it could work and I'd recommend at least trying.

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You might also try the legal section on craigslist. Sometimes you can find a paralegal or law student willling to draft up motions for you. It takes an incredible amount of reading and work and filing etc.....  Can't even count how many hours I've spent on my case so far. I really feel for you!!

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Thank you both.  I can tell you right now that neither service was considered "proper" here in California.  In both instances (I have seen both Proofs of Service and the attached Declarations) they say they "served a competent member of the household over the age of 18 years." and proceed to provide a physical description of someone who is not a member of our household (stating that person is of a completely different race).    Also, in one of the POS, they indicate the process server who served the documents is licensed in a county and city more than 800 miles from where he served us.  I wouldn't think they would hire someone from 800 miles away to drive here serve papers for a case worth less than $5000, would you?  I did Google the name of the individual, and it says he is a licensed process server in this state, but lists his business address as a PO Box 800+ miles from where we live.

 

The second POS isn't much better.  Says they served someone not matching any physical description of anyone living here on a day that I know I was home, as was my child.  I remember the day very clearly as both of us were home in bed sick with the flu, as we were supposed to go somewhere with friends that day and had to cancel.  Nobody served anything at our house on that day.

 

I will take your advice and order a complete copy of the Court record, and see what I can find about unliquidated amounts.  I must say this is very, very disturbing.  I scrolled through the Court website and see literally dozens of these sorts of cases on the system by the same individuals for the same reasons.  Hard to believe some folks believe the way to make an "honest" living is by filing falsified documents against many people who are victims of the economy or circumstance (like we are/were).  How could we as a society get so greedy and sink so low.  No answers needed - this  is a rhetorical question.

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Okay, I took the advice and found out that I can actually view (and purchase) documents from our county court website, and just went online to the ROA to find out a Writ of Execution was issued for the latest Judgment on March 27, 2014!!

 

I have printed the document out and upon examination, looks like they are not requesting a "notice of sale at this time"?  Says they are enforce the Judgment, but it doesn't say whether it will be a bank levy, wage garnishment, or property seizure.  Does this automatically mean bank levy or wage garnishment?  Of course, I have no access to an attorney because it's the weekend, and DH is undergoing medical procedure on Monday so that day is most likely shot too.

 

Any ideas?  If there is something I can file to at least stay this thing until I meet with a lawyer next week, I can have a neighbor do the filing for us, but I can't seem to find anything on this site that deals specifically with Writs of Execution.  Help.

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@Beach Phoenix I'm so sorry to hear about the many challenging issues you are facing at once. I agree that consulting with an attorney, especially regarding vacating the Judgments is appropriate. There is an attorney on these message boards with the screen name CAlawyer. I don't want to speak for him or her, but hopefully this member may offer some support here.  One of the things I think you'll gain from meeting with another attorney for potential representation is important feedback and info. If you hire that attorney, great. If not, the info you may obtain during your meeting may still help you. If you believe there are FDCPA violations being committed against you or your husband, most attorneys who are experts in this area of law work on a contingency. 

 

In my credit / legal matters I met with several attorneys who were quite helpful. However, at the time I could not afford their fees and I proceeded Pro Se. While the issues that led to the initial consultation are behind me, I may come back to those attorneys for representation on a new matter today.

 

I would prioritize your issues, and post them as separate threads on this site. It would appear the Judgments are of great importance. You appear to be rounding the corner where you can start to make some positive headway towards improving your credit. There are great resources here for repairing credit, too.

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Thank you, Determined 1.  I think we now have a greater problem, since the "bottom feeders" have issued a Writ of Execution, and I cannot sit by and wait for them to seize what's left of either DH's bank account or paycheck.  Gee, when it rains it pours.

 

Is there another forum/thread to post regarding advice for Writs and bank levies?  I couldn't locate one, and I'm afraid I'm not forum savvy enough to know how to re-title this thread and bump it to the top. :hmmmmm:

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You're welcome @Beach Phoenix. I suggest posting your Post Judgment questions on this section:  http://www.creditinfocenter.com/community/forum/197-post-judgment-forum/

 

You could probably copy and paste your original post in its entirety there. However, I'm going to PM the Moderator to see if they want to move the whole thread.

 

I looked online and found a few resources to give you additional background on these issues. Please see:

 

http://www.creditinfocenter.com/community/topic/322658-california-wage-garnishment/?hl=%2Bcalifornia+%2Bwrit+%2Bexecution

 

http://ask-a-lawyer.freeadvice.com/law-questions/how-to-stop-wages-from-be-57248.htm

 

http://www.justanswer.com/business-law/5lf0d-stop-writ-execution-los-angeles.html

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P.S. Once you get to 10 posts, you can send Private Messages (PM's). I don't think anyone will object to a bump or two :-)

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Thank you  again, Determined1!  I did read the links you provided, and it looks like we may have some time to at least stop things, provided that the Sheriff won't lie about the Notice of Levy (we haven't gotten one of those yet). 

 

Does anyone out there reading this know if a Notice of Levy has to be delivered via personal service?  I have just done some reading regarding the 10 day time period in which to object to the Notice of Levy, but see that the "bottom feeders" oftentimes have the Sheriff (and others) in their back pockets, and will routinely "lie" when it comes to actually serving the documents (like the liars who signed the Proofs of Service for the Summons and Complaint in these lawsuits).

 

If we still have time, I may try to cobble together a Motion to Vacate the Judgment and have my neighbor file it for us on Monday, if that will stall the process of the levy.  Need any advice here, as this is a weekend, and if I need to draft this thing this weekend, I have to start now.  If I will  just be throwing good money after bad, I need to know that too, as the earliest I can get to talk to a lawyer is next Tuesday.  A meeting in person can't take place until Friday.  I need to know if I need to do something right away.

 

As always, TIA to those who try to assist.  We are eternally grateful.

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Hopefully, @calawyer will pop in here and have some suggestions.  He may also know the name of an attorney who could help you.

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San Diego. FWIW, I did stay up last night and have drafted what I believe to be a fairly decent Motion to Vacate the Judgment (for a layperson of course) but what I don't have and don't know how to handle is whether or not I should include a General Denial with the motion papers (if it comes to that). The original complaint does contain a last page entitled "Verification" and is

signed by the attorney whose name is on the lawsuit for Unifund (whoever they really are).

I am ready to have our neighbor file the motion papers for me tomorrow if necessary, but don't know if I have to prepare a

regular answer, or a general denial will do. Thanks again everyone for giving us hope that we don't have to take this lying down!

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Make sure you include a sworn affidavit as well.  If it's a writ of execution it's most likely going after a bank account of yours.  I'd have to look it up but you could possibly file something like an emergency motion to stay execution of the writ pending the outcome of your motion to vacate. 

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EMPTY the bank account in the mean time.  If there is nothing there they get nothing.  Stop husband's direct deposit too.  

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Interestingly enough, if they do take money from you in a post-judgment proceeding and you end up successfully overturning the original judgment and winning on the merits, you would have cause to sue them for damages in a separate suit.  Also what I found interesting at least, a Garnishee can be subjected to double liability if the original judgment is later found to be void.  The reasoning behind it is that the Creditor is suing an innocent third party that is liable to the debtor, such as an employer.  The court orders the employer to pay the Creditor and reduces the liability of the Employer to the Debtor for an equivalent amount.  So if they take $200 from your paycheck to pay the Creditor, they owe you $200 less on your paycheck.  It is the court order itself that reduces their liability to the debtor when they pay the Creditor.  If the original judgment is later found to be void, all subsequent orders based on that Judgment are also void.  Thus, the court's order which reduced the liability of the Employer to the Debtor when they paid the Creditor is also void and the Employer is once again on the hook for paying the full amount of their liability to the Debtor (Employee's rightfully earned wages).  The fact that they might have already paid this amount to the Creditor is irrelevant.   The employer might be stuck paying the same debt twice so it is always in their best interest to defend the proceedings and raise all possible defenses.

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Thank you all. @calawyer, are you out there? I have some down time for a few minutes while DH is with the doc, so I called

another NACA consumer lawyer about our dilemma who admitted it had been more than 10 years since she had drafted a motion to

vacate a default judgment, and she had NO IDEA whether or not filing such a motion would stay the Writ or a bank levy (?).

Consumer attorney in San Diego county ANYONE?? Went to the bank this am and drained the account, so we are safe with that for

now, but we still have to worry about a wage garnishment. I am all but ready to file my Motion but need to finish the Answer/

General Denial first, and want to at least know I am on the right track.

Thanks again to all of you who have responded and keep reading my posts. :~)

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