mlarken

Help! Can I file a motion to vacate default summary judgment American Express

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Hi, in Dec 2014 Amex obtained a default judgment against me for $15K, I did not defend because honestly my husband and I have lost everything in the last couple of years and it just got buried under all my priorities. In any case, I received another envelope from Amex with a copy of Plaintiff's Motion for Entry of Default Final Judgement.and a questionnaire as to my assets and so forth. I have contacted an attorney but was he is just interested in having me file for bankruptcy.I am not ready to file for bankruptcy yet but I would like to try to vacate and defend agaisnt Amex.

Is there anything I can do or file with the court at this point??

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Once they get a judgment it is often difficult to get it vacated.  Were you properly served?  The elements you have to meet in Florida are that you moved expeditiously (with due diligence) upon knowledge of the default, that you had excusable neglect, and that you had a meritorious defense.  It sounds like you might be able to allege facts sufficient to prove excusable neglect.  The elements you might have more trouble with are the due diligence (if you were aware of the lawsuit and were properly served) because it is now 5-6 months from when a judgment was entered; and the element of meritorious defense.  Going up against an original creditor is much more difficult than a collection agency.  Generally an original creditor is going to have all the documents necessary to prove their case.

 

You can still try to get it vacated, but it may be an uphill battle if you were properly served.  The other thing you can do is go ahead and file any claim of exemptions you might have, because the next move for the judgment creditor is to levy (clean out) any bank accounts with your name on them, and to garnish your wages if you're working.  They don't have to tell you before they do this, either.  But you can pro-actively file any claim of exemptions you might have.  In Florida, there is a head of family exemption if you support another person and pay 51% of their support.  

 

You can't ignore their requests for your asset information if it is a post-judgment request.  Otherwise they can file a contempt against you.  

 

I would file a motion to vacate/set aside and any claims for exemptions you might have.  It won't hurt to try and have it vacated, but just understand it's an uphill battle once they have the judgment already (if you were properly served).  Bankruptcy is usually a last resort.  In the meantime, don't keep a bunch of money in any bank account with your name on it.

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Thank's for the information. Can they levy my bank account even if it's held jointly with my husband?

Where can I find a sample motion to vacate? I'm going to have to this myself because I haven't found a lawyer willing to take my case.

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In Florida, yes, they can levy your bank account even if it's jointly held with your husband, unless the bank account is set up as a tenancy by the entireties.  Most bank accounts are not set up this way unless you specifically ask the bank to do so.  Another way to tell is if the bank account is listed in your name AND his name.  If it is listed as your name OR his name, then it's just a joint account and they can levy it.  It will be up to you (or your husband) to prove to the court how much of the funds in the account belong to him and he would get those funds returned if the judgment is not against him.  But they will levy the whole account and you will have to file a claim of exemption as to the funds that are his.

 

This is how it's done in Florida.  I'm not sure where you are though, so it is different in every state.

 

Many attorneys don't like to handle cases like this because it is an uphill battle to get a judgment vacated, if you were properly served.  And many clients don't want to shell out money for legal fees without getting positive results.  I've done cases where we tried to get a judgment vacated but if it wasn't going to be successful, then the clients went ahead and did a bankruptcy.   That isn't as bad because at least the client is going to feel like they got something for what they paid in legal fees, which is that the judgment is going away one way or the other.

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