Jump to content

What to do when three courts refuse to vacate a clearly Void Judgment?


graym
 Share

Recommended Posts

Just because a state court ruled in their favor doesn't mean they didn't violate the FDCPA.  

 

The problem she has is that the time limit to pursue the FCDPA claim has long expired.  The garnishment does not renew it no matter how you try to spin it.

 

Also, my dad not wanting to help had absolutely nothing to do with the merits of the case itself.  It was overwhelmingly location and a small portion because he just considers it small potatoes and doesn't want to spend time on it. 

 

It most certainly does have to do with the merits.  The two reasons you listed are the default ones attorneys use to avoid arguing with a client over the fact there isn't a case.  If there truly was a case and jurisdiction was not convenient for your father to defend it he certainly has colleagues in that area he could refer the case to.  He isn't doing either because the case exists only in your mind.  A seasoned attorney and officer of the court he recognizes that once your girlfriend signed the consent judgment it was over.  Too bad you can't recognize that.  He is telling you it is "small potatoes" or inconvenient to avoid the incessant arguing that happens when you aren't told what you want to hear like happens here.

 

That right there is the entire reason people have a right to be sued in a proper venue.  It's extremely difficult to defend a suit hundreds of miles away from where you live.  It's an entire day travel just to make an appearance and that's the problem, not the merits of the case. 

 

Your girlfriend had the option to consult an attorney back then and to object to the venue.  She DIDN'T.  It is OVER.  Drop it already.

Link to comment
Share on other sites

@graym

 

The time for a venue violation has passed.  She had the opportunity to object to the venue before she signed the stipulation and when the writ of garnishment was issued, but she never did.  She accepted the venue.

 

I don't think there is any case law on the matter, but if they are taking funds in December 2013 wouldn't that constitute a legal action upon a debt?  Garnishment is a legal action, and the Judgment is for a Continuing Garnishment so at least to me it would be logical that each act of Garnishment would create a new violation under the Continuing Violation Doctrine.  After all, the Judgment itself specifically contains the word "Continuing".   I don't think there is any case law on the matter, but it would seem silly that they were actually taking her money in December of 2013, but the Statute of Limitations would start on the much earlier filing date/service date.  That would mean, depending on the length of the Garnishment, you could have a situation where someone is currently Garnishing you from an improper venue while simultaneously being outside of the Statute of Limitations on being sued for the FDCPA violation of it.  It's possible, it just doesn't make a whole lot of sense to me. 

 

 

There's no continuing violation.  First, the garnishment is not illegal because a judgment was rendered and the appeals refused.   An FDCPA complaint would not survive due to the fact that there's no violation and because of the Rooker-Feldman Doctrine. 

 

Under the Rooker-Feldman doctrine, lower federal courts lack subject matter jurisdiction over claims that effectively challenge state court judgments. See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 486-87, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).

 

In addition to claims that were actually litigated in state court, the Rooker-Feldman doctrine bars lower federal courts from exercising jurisdiction over claims that are "inextricably intertwined" with state court determinations. Feldman, 460 U.S. at 482-83 n. 16, 103 S.Ct. 1303.

 

A claim is inextricably intertwined if it would "effectively nullify" the state court judgment, id. (internal quotation marks omitted), or it "succeeds only to the extent that the state court wrongly decided the issues." Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1332 (11th Cir.2001).

 

 

Second, the judgment creditor is not taking the funds out of her check each month.  The court has ordered her employer to do so.  "Continuing writ" merely means that wages will be garnished on a continuing basis until the judgment is paid.  The judgment creditor is not taking a new action each month.

 

As the other posters have stated, it's time to face reality.   You're giving her false hope.  If you file an FDCPA complaint, you could end up costing her more than she already has to pay. 

Link to comment
Share on other sites

  • 2 weeks later...

Everything you said about Rooker-Feldman is true, but many courts also apply a fraud exception to the doctrine and she is asserting fraud.  I don't know what she is going to do, she's contemplating it and wants a break from this legal crap.  They falsified her driver's license, I can't see how that's not an FDCPA violation.  You're misunderstanding the facts as well.  The only argument that was raised and litigated in the courts so far was the issue of venue and service in the original case. Her letter to the court, which she sent trying to stop the garnishment, simply stated she didn't live there and never saw any documents in the case.   The court took that letter as a Motion to Vacate the original judgment.  The trial court ruled that she waived her right to venue when she signed the stipulation agreement, and didn't consider her argument of fraud (Stating they called her and threatened arrest) because the Judge stated his friendship with the opposing Attorney and through personal knowledge knew the Attorney would never do what she was claiming.  It was a ridiculous ruling considering the Judge was referring to the WRONG ATTORNEY.  However, there was no court reporter so the only thing she could raise on Appeal was venue under the FDCPA (which the appellate court never even addressed).

 

Nothing else was raised in the court, and has not been ruled on by any court.  She raised the issue of improper service in the Garnishment proceeding for the first time in her Petition as it was a subject-matter jurisdiction issue.  However, denial of a Petition does not constitute a ruling on the issue and it was never raised in the trial court/Appellate Court.  For all we know the court specifically didn't rule on it because it was not raised in the trial court.  I'd say the more likely scenario is that the 1st DCA never actually read her Petition, because there's no excuse for the other arguments raised -> introducing new evidence into an Appeal and denial of Due process by not allowing her to file a Reply Brief.

 

As the other arguments were never raised in the trial court, there's nothing preventing her from filing a motion to vacate a void judgment and raising the issues that were not previously raised. 

 

1) No service on the Affidavit which was required and misrepresentation on the amount of debt on the Stipulation Agreement.  

2) Attorney's fees awarded without a hearing

3) Judgment awarded exceeded small claims amount.

4) Service in the Garnishment action.

 

Specifically, she needs to find case law in Florida as to the proper calculation of pre-judgment interest in account stated.   There is no contract, and no evidence.  They started the calculation from the date of default, months prior to the date they purchased the debt.  If I recall correctly, I think I remember someone posting caselaw in another thread that Debt Collectors are not entitled to Pre-judgment interest or Attorney's fees in Account Stated claims specifically because there is no contract and no evidence to support the awarding of these things.  If she can show that they were not entitled to Attorney's fees and Pre-judgment interest, and they obtained them through misrepresentation on the Stipulation Agreement, that would make it hard to justify not overturning the Judgment.  As it stands, it should be set aside simply due to the fact that they failed to serve her the Affidavit.  Courts are a two-party process, not one-party.  She has a right to oppose the Affidavit, and she has a right to know the facts of which they were basing their claim on.  It's a violation of due process to withhold that information in the court proceeding, I don't even get how you can argue that it's not. 

Link to comment
Share on other sites

This is an interesting case in just how far you can go to overturn a Void Judgment.

 

http://leagle.com/decision/199879879CalRptr2d719_1702.xml/ROCHIN%20v.%20PAT%20JOHNSON%20MFG.%20CO.

 

In this case, they lost, but afterwards, without notice, the Plaintiff proposed an amended judgment without serving the Defendants.  The court entered the amended judgment after only 1 day's notice to the Defendants.  The Defendants appealed that amended Judgment issued without due process and lost.  The Defendants sought Petition and lost.   They then initiated a new case collaterally attacking the Judgment which was dismissed.  They appealed that dismissal and finally won, overturning the Void Judgment. 

 

The Doctrine of Res Judicata Is Inapplicable to Void Judgments

 

Defendants contended below and the trial court agreed in sustaining plaintiffs demurrer that the present action is barred by the doctrine of res judicata. Specifically, defendants assert that plaintiffs failure to file a cross-appeal from the amended judgment resulted in the amended judgment becoming final and having preclusive effect. Defendants also contend that plaintiffs failure to file a notice of appeal (rather than a petition for writ of mandate), from the trial court's May 23, 1996, order denying plaintiffs motion to vacate the amended judgment also resulted in that order becoming final and having preclusive effect. We disagree.

The doctrine of res judicata is inapplicable to void judgments. "Obviously a judgment, though final and on the merits, has no binding force and is subject to collateral attack if it is wholly void for lack of jurisdiction of the subject matter or person, and perhaps for excess of jurisdiction, or where it is obtained by extrinsic fraud. [Citations.]" (7 Witkin, Cal. Procedure, supra. Judgment, § 286, p. 828.)

As discussed above, the amended judgment was void and of no effect. Plaintiffs failure to file a cross-appeal from the amended judgment, thus in a sense allowing it to become final, plainly does not give the amended judgment preclusive effect.6 The amended judgment is a nullity, and can have no such effect.

 

In addition, the trial court's subsequent order denying plaintiffs motion to vacate the amended judgment, in that it gives effect to a void judgment, is itself void. (County of Ventura v. TilMt, supra, 133 Cal.App.3d at p. 110, 183 Cal.Rptr. 741.) While defendants are correct in stating that the order denying the motion to vacate was itself appealable, plaintiffs failure to appeal from it, thus allowing it to become final, makes no difference. A "final" but void order can have no preclusive effect. "`A void judgment [or order] is, in legal effect, no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one.' [Citation.]" (Bennett v. Wilson (1898) 122 Cal. 509, 513-514, 55 P. 390.) We conclude that the trial court erred in sustaining defendants' demurrer on the basis of res judicata.

Link to comment
Share on other sites

To simplify the whole thing, they filed an Affidavit with the Court (without serving her) in which they stated the debt was for $4,044.81 + Court costs of $295, attorney's fees of $450, and prejudgment interest of $1590.90.  Afterwards, they obtained a stipulation agreement which hides all of this, and simply states the actual debt is $6278.60, including costs.  She made one payment of $200, and then they filed a 2nd affidavit stating the debt was $6,078.60 + fees + pre-judgment interest from the date of the Stipulation. 

 

Based on the 2nd affidavit, the court issued Final Judgment verbatim for $6,078.60, pre-judgment interest from the date of stipulation to the date of Judgment of $123.28, and $50 in court fees for a total of $6,251.88.

 

So, they were awarded $450 in Attorney's fees despite the fact this was never disclosed, and they were awarded pre-judgment interest on both the Attorney's fees and on the previously included pre-judgment interest, essentially they were awarded compounded pre-judgment interest.  All of this misrepresentation allowed them to balloon an original debt of $4,044.81 into a Final Judgment of $6,451.88.  Tack on another 5 years interest and they were awarded just over $9,000 in Garnishment, which was also improperly calculated.  So without any evidence at all, they ballooned a debt of $4,044.81 into a Garnishment Judgment of over $9,000 in 5 years.  They sought $10,000 in Garnishment, the court actually reduced it to just over $9,000 in the Final Judgment of Garnishment, but the correct calculation would've been around $8,000 based on interest.  It's like the Judge just took a guess instead of actually doing the math so she's out another $1,000, no biggie right?

 

She was never served in the Garnishment proceeding so she could not object to the wrong amount being awarded.  She was never served the Affidavit so she no idea they had included $1,590 pre-judgment interest and $450 Attorney's fees.  It's also not even her debt.  I think anyone would be pissed if put in the same situation. 

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

 Share

×
×
  • Create New...