EPAJ

EX Did not tell her, Default JDGMT JH Portfolio Arizona

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A friend of mine in Arizona recently divorced her husband. She just received a letter in the mail from JH Portfolio that is a Subpoena for Production and Copying of Documents. She has no income and no assets other than her car. Her husband is a veteran on disability. He is not paying her any spousal support. If they were ever served...most likely they were...he never told her anything about it.

 

Any advice on what she can/should do at this point?

Although she has lived in the US for 11 years or more, married to the same man, she never applied for US Citizenship. She would like to do so now, but is worried about how it will look to have cases filed against her so she would like to clear it up. She is currently residing with friends until she gets her life together.

 

Any help would be appreciated!

 

I looked up her case and found the following activity:

 

 

 

3/23/2016 SUBPOENA P 1 
3/23/2016 FUND: FEES - MISC P 1 
5/12/2015 DISCHARGE OF GARNISHMENT P 1 
4/17/2015 CERTIFICATE OF SERVICE P 1 
4/3/2015 WRIT OF GARNISHMENT FILED P 1 
4/2/2015 FUND: CONST ETHIC COMM FUND P 1 
4/2/2015 FUND: FEES - MISC P 1 
2/13/2015 CERTIFICATE OF SERVICE P 1 
2/4/2015 FUND: FEES - MISC P 1 
2/4/2015 FUND: OVERPYMT FORFEITED P 1 
1/30/2015 FUND: FEES - MISC P 1 
1/30/2015 SUBPOENA  
12/12/2014 CIVIL DEFAULT JDGMNT GRANTED  
11/25/2014 MOTION FOR JUDGMENT P 1 
9/9/2014 APPLICATION/ ENTRY OF DEFAULT P 1 
8/5/2014 CERTIFICATE OF SERVICE  
7/15/2014 CIVIL COMP FILED P 1 
7/15/2014 FUND: PC JUDICIAL ENHANCEMENT P 1 
7/15/2014

FUND: BASE FEES

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7 hours ago, EPAJ said:

Any advice on what she can/should do at this point?

Start with her divorce attorney and have him review the paperwork and see if the debt(s) were attributed to him in the divorce.  She may have to haul him back into court on contempt to deal with it.

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Thank you....

The only problem is, she couldn't afford a divorce attorney and did the divorce herself. She split everything 50/50 including debts. He never responded or revealed any debts...she knew they probably existed but mostly wanted to end the relationship without making him too angry. He is very intimidating and has been trying to hurt her in any way he can.

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Phase one is she needs to go to the courthouse and get a copy of the complaint that was filed.  Prepare an answer in which she would respond to each allegation in the complaint with a simple 'admit' or 'deny'.   I recommend denying everything but her name and where she lives (lived).   Also, include a section of affirmative defenses (accord & satisfaction, estoppel, laches, statute of limitations and waiver should cover all the possible bases).  In the answer, additionally include a statement in the affirmative defense section like "defendant reserves the right to invoke private contractual arbitration in accordance with any agreement that may exist between the parties."  Then draft a Rule 23(b ) motion to set aside entry of default and judgment and file this and the answer with the court.  She will have to pay an answer fee of $237 for Superior Court or $65 for Justice Court.

Phase two is preparing a defense, if available.  The best scenario here is if he incurred the debt before they were married and she never benefited from any of the money that created the debt.  The next best scenario is if the debts were disclosed in the divorce and were attributed to him.

If she cannot prove the debt was his separate debt and/or not attributed to the ex in the divorce, and if she doesn't want to make the ex responsible, she will have to defend the lawsuit as if this was her own debt (Arizona is community property/community debt).  If this was a credit card debt, her best course of action will be to demand private contractual arbitration if this option is available.  To find out if it's available, she will have to track down a copy of the credit card agreement that was issued when the account was opened.  Some have reported having luck contacting the original creditor to get a copy of the agreement.  She is being sued by Portfolio.  They are not the original creditor, but the original creditor will almost certainly be identified in the complaint she's going to get a copy of from the courthouse.

So in this order:
1. Go to courthouse and get a copy of the complaint.
2. draft and answer based on the info in the complaint and file it with the motion to set aside entry of default and judgment.
3. If a credit card debt, contact the original creditor to get a copy of the card agreement.
4. while waiting on #3, research the divorce decree to see if any debts were identified.
5. If #3 reveals that arbitration is available, send a letter to Portfolio of her intent to utilize arbitration to settle the dispute and then file with the court a motion to compel private contractual arbitration pursuant to the credit card agreement.

Anything she files with the court will have to also be mailed to Portfolio, and on the last page of any pleadings or motions filed with the court she will have to include a 'certificate of service' which says the date and name & address where the copy was sent.

She really needs to be here asking these things herself, but if she needs you to 'translate' or whatever, make sure she is with you any time you read and post updates here.

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6 hours ago, Harry Seaward said:

Prepare an answer in which she would respond to each allegation in the complaint with a simple 'admit' or 'deny'.  

It is too late for that.  The case was filed in 2014 and they got a default judgment according to that court time line.  This is likely a debtor's exam.

9 hours ago, EPAJ said:

She split everything 50/50 including debts. He never responded or revealed any debts...she knew they probably existed but mostly wanted to end the relationship without making him too angry. He is very intimidating and has been trying to hurt her in any way he can.

She needs to get copies of everything in the case file and head straight to Legal Aid.  If this is a debtor's exam she cannot ignore it or the court will have her arrested.  The good news is she has nothing for them to take while she sorts this out. 

Another option is www.consumeradvocates.org and doing a free consult with a consumer attorney who may be able to assist her fast as well.  Either way she needs copies of the entire case.

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4 hours ago, Clydesmom said:

It is too late for that.  The case was filed in 2014 and they got a default judgment according to that court time line.  This is likely a debtor's exam.

Did you see where I said to file a motion to set aside the default judgment with the answer? Rule 23 (which I cited) provides for setting aside a judgment "any time" on the grounds that the defendant was not served with the complaint, or "any other reason to prevent a manifest injustice."

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13 hours ago, Harry Seaward said:


2. draft and answer based on the info in the complaint and file it with the motion to set aside entry of default and judgment.
3. If a credit card debt, contact the original creditor to get a copy of the card agreement.
4. while waiting on #3, research the divorce decree to see if any debts were identified.
5. If #3 reveals that arbitration is available, send a letter to Portfolio of her intent to utilize arbitration to settle the dispute and then file with the court a motion to compel private contractual arbitration pursuant to the credit card agreement.

 

Thanks so much for all your time & help! I found a form at the Pinal County Justice Court called "MOTION to SET ASIDE / VACATE JUDGMENT ".

 

Is this the correct form? It asks if "an oral argument is requested" or if it will be "by agreement". I am not sure what that means. Is that what you meant by #5 to see if arbitration is available?

For the response, would she file the "RESPONSE, REPLY TO MOTION" Form? This form also has a check box that says "Oral Argument Requested".

Does she qualify for Rule 23b if it turns out that her husband was served? He was very secretive and kept things hidden from her. I understand that the actual person does not need to be served....but it is unfortunate that she never even knew about it.

Thanks again!

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1 hour ago, EPAJ said:

Thanks so much for all your time & help! I found a form at the Pinal County Justice Court called "MOTION to SET ASIDE / VACATE JUDGMENT ".

 

Is this the correct form? It asks if "an oral argument is requested" or if it will be "by agreement". I am not sure what that means. Is that what you meant by #5 to see if arbitration is available?

Yes, this is the correct form. "Oral argument" is where you get to go in with the judge and face-to-face explain your reasons for the motion. You would not check the "by agreement" box. That would be for if you and portfolio had talked and they agreed the judgment should be set aside. 

Arbitration is several steps away at this point. You first have to get the current judgment vacated which will back everything up to day one when they filed the lawsuit. You'll have 20 days from then to file your answer (but I would do it with your motion to vacate, as I explained) and you can put on a proper defense of this lawsuit. 

1 hour ago, EPAJ said:

Does she qualify for Rule 23b if it turns out that her husband was served? He was very secretive and kept things hidden from her. I understand that the actual person does not need to be served....but it is unfortunate that she never even knew about it.

The rule provides for "any other reason". No guarantee, but I think the judge will set the judgment aside if you explain that the summons was served at a time there was contention due to a pending divorce and you have good reason to belive the husband never told you about it.

Is this in justice court it superior court? 

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42 minutes ago, Harry Seaward said:

 

Is this in justice court it superior court? 

It is in Justice Court. We went last week to file an answer to another case she didn't know about... that was just filed by Midland Funding (we used info from this forum). The judge granted a deferral of fees so I hope he will do the same in this case.

The only reason she knows about anything now is that she has a different address that got registered by the court after her divorce....

 

Thanks!

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I have some feelings about justice court that are colored by my own personal experiences. It seems to be a crap shoot. Some here have had some really on-the-ball JPs and others, like me, not so much. Hopefully you have a JP that will take the time to understand what's happened here and be fair with you. 

Can you tell me the ballpark amount of the debt? 

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1 hour ago, Harry Seaward said:

Can you tell me the ballpark amount of the debt? 

It is a little over $4000. Which are the JPs that are good? We are going to the one in Apache Junction.

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I think I remember someone here was in AJ, but it was over a year ago and I don't remember the outcome.

AJ is in Pinal county and case information for Pinal is not as easily accessible as for Maricopa.  I can't tell you what to expect.

If you google the judge you come up with some interesting stories.

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On March 31, 2016 at 7:46 AM, Clydesmom said:

 

She needs to get copies of everything in the case file and head straight to Legal Aid.  If this is a debtor's exam she cannot ignore it or the court will have her arrested.  The good news is she has nothing for them to take while she sorts this out. 

Another option is www.consumeradvocates.org and doing a free consult with a consumer attorney who may be able to assist her fast as well.  Either way she needs copies of the entire case.

Thanks, we will look into this as well!

 

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On March 31, 2016 at 4:40 PM, Harry Seaward said:

 

The rule provides for "any other reason". No guarantee, but I think the judge will set the judgment aside if you explain that the summons was served at a time there was contention due to a pending divorce and you have good reason to belive the husband never told you about it.

 

She got a copy of her certificate of service for this case. It says she personally was served! After I read it to her, she did remember someone coming to the door and sticking a thin paper into the door. She barely spoke english and certainly did not understand the paper...and her husband never explained it.  At the time, she had no clue what it was about. The funny thing is, the process server said she left the Summons, Complaint & Notice to Defendants in the screen door. There was no screen door! My friend never even saw a stack of papers, only the small paper slip mentioned above. Furthermore, the process server also claims that my friend agreed to look out the window so that she could see her. My friend says she NEVER agreed to any such thing. They don't even have a window right by the door!

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All of those things are grounds for setting aside the judgment.  Ask for a hearing in your motion to set aside the judgment and you can explain all of that to the judge.

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On March 31, 2016 at 0:53 AM, Harry Seaward said:

Phase one is she needs to go to the courthouse and get a copy of the complaint that was filed.  Prepare an answer in which she would respond to each allegation in the complaint with a simple 'admit' or 'deny'.   I recommend denying everything but her name and where she lives (lived).   Also, include a section of affirmative defenses (accord & satisfaction, estoppel, laches, statute of limitations and waiver should cover all the possible bases).  In the answer, additionally include a statement in the affirmative defense section like "defendant reserves the right to invoke private contractual arbitration in accordance with any agreement that may exist between the parties."  Then draft a Rule 23(b ) motion to set aside entry of default and judgment and file this and the answer with the court.

I don't know that any of those affirmative defenses will apply?

For the Response to Motion she is writing that she would like the court to "Dismiss the Complaint together with any and all legal fees, and any costs of suit, to be taxed." and that she did used to live at the address specified but that "2-9. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in this paragraph and accordingly the allegations are DENIED.  Plaintiff is left to its proof. Defendant reserves the right to invoke private contractual arbitration in accordance with any agreement that may exist between the parties."

Legal support is left blank.

Is that sufficient?

For the Motion to Set Aside Default she wrote that she would like the court to "Set aside judgement according to rule 23b." and for the Statement of facts she wrote: I was not served and the Certificate of Service that was filed is not accurate. There was no screen door and I never showed myself through the window to anyone. I never saw the Summons, Complaint, or anything for this case. "

Legal support is left blank.

She was thinking of including a photo of the front door with no screen?

 

Thanks for any help!

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4 hours ago, EPAJ said:

I don't know that any of those affirmative defenses will apply?

It doesn't matter.  Include them now because if you don't you can't use them later without going back and amending the answer.  If it turns out they don't apply, they are just ignored.

 

4 hours ago, EPAJ said:

For the Response to Motion she is writing that she would like the court to ......

 

You're not responding to their motion yet.  That only happens if they court denies the motion to set aside default judgment.  File the answer and motion to set aside the judgment first and then wait to see what happens.  (Instead of Rule 23( b), it's actually 60(c) in Superior Court and Rule 141(c) in Justice Court. Sorry!)

 

The following goes in your answer:

4 hours ago, EPAJ said:

that she did used to live at the address specified but that "2-9. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in this paragraph and accordingly the allegations are DENIED.  Plaintiff is left to its proof. Defendant reserves the right to invoke private contractual arbitration in accordance with any agreement that may exist between the parties."

although if they alleged she "lives" or "resides" (present tense) at a specific address, I would deny but then state she previously lived there.  Did she live there when she was allegedly served?  If not, say so.

 

4 hours ago, EPAJ said:

For the Motion to Set Aside Default she wrote that she would like the court to "Set aside judgement according to rule 23b." and for the Statement of facts she wrote: I was not served and the Certificate of Service that was filed is not accurate. There was no screen door and I never showed myself through the window to anyone. I never saw the Summons, Complaint, or anything for this case. "

Legal support is left blank.

She was thinking of including a photo of the front door with no screen?

Be sure to change "rule 23b" to Rule 141(c) if she's in Justice Court (or 60(c) if she's in Superior Court).  Legal support is Rule 141(c)/60(c) based on 'fraud or misrepresentation by the other party'.

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14 hours ago, Harry Seaward said:

It doesn't matter.  Include them now because if you don't you can't use them later without going back and amending the answer.  If it turns out they don't apply, they are just ignored.

 

The reason I was asking is that I found another post on here that seemed to not recommend doing that:http://www.creditinfocenter.com/community/topic/327133-served-with-a-one-page-complaint/?do=findComment&comment=1336794:

Do you think I should write it out the way Just Me Asking did? The blue lines are responses from Clydesmom.

 

On January 17, 2016 at 2:46 PM, Just Me Asking said:

SEPARATE DEFENSES

1.                  Plaintiff lacks standing to sue.

2.                  Plaintiff is barred from recovery by reason of the doctrine of payment.  Do you have ANY proof the Plaintiff was paid by someone on this account?  If not you can't use this.

3.                  Plaintiff is barred from recovery by reason of the fact that the claim and the amount are disputed and/or denied.  The claim or amount being disputed doesn't bar recovery at all from a legal perspective.

4.                  Plaintiff is barred from recovery by reason of the doctrine of estoppel.  No, the Plaintiff isn't.  They have a legal right to avail themselves of the court to seek money they believe they are owed.  Do you even know what estoppel is?  Could you argue it effectively to a court of law?

5.                  Plaintiff is barred from recovery by reason of the doctrine of failure of consideration.  This MIGHT stick if you never opened the account AND can prove that fact.

6.                  Plaintiff is barred from recovery by reason of unclean hands.  UHUH.  NOT going to work with a court of law.  While the Sherman Group may be unethical they can sue for a debt for Credit One.

7.                  Plaintiff is barred from recovery by reason of the doctrine of unjust enrichment.  NO

8.                  Plaintiff is barred from recovery by reason of the fact that there is no basis for charging interest or late charges or attorneys fees or any other charges.  The card agreement you will produce to compel arbitration will lay this foundation.

9.                  Plaintiff is barred from recovery by reason of the doctrine of laches.  A laches defense means you are claiming they waited to long to pursue the claim.  Unless they are saying this account is from a decade or more ago (which also gives an SOL defense) then this won't work either.  

10.                  Plaintiff is barred from recovery by reason of the doctrine of waivers.  NO.  The Plaintiff has not waived their right to anything.  Unless you have proof they have this won't fly at all.

11.                  Plaintiff is barred from recovery by reason of the statute of limitations.  When are they saying the default occurred?  If it is within 6 years of the date they filed you cannot use this defense.

12.                  Plaintiff is barred from recovery by reason of the doctrine of release.  What release do you have from the Plaintiff that supports this?

16.                  Defendant reserves the right to add additional Separate Defenses.  Keep this as it can't hurt you.

 

Clydesmom:

"OMG I do not know where you cut and pasted that from but DO NOT USE THIS.  You cannot type up an answer with every legal defense ever used in a case and throw it at the court to see what sticks.  ALL that document will do is tell the Plaintiff and the court in technicolor that you are absolutely clueless and they will steam roll you with the rules of civil procedure. 

Most consumer attorneys will do the first consult for free and by phone if needed.  Go to www.consumeradvocates.org and find one in NJ.  There are several excellent ones.  If this really isn't your account they will probably take the case on contingency at no charge to you up front and handle it.  You are in over your head and could very well end up paying this company for a debt that isn't yours if you proceed in a reckless fashion."

 

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14 hours ago, Harry Seaward said:

 

Be sure to change "rule 23b" to Rule 141(c) if she's in Justice Court (or 60(c) if she's in Superior Court).  Legal support is Rule 141(c)/60(c) based on 'fraud or misrepresentation by the other party'.

I looked up Rule 141c and it says that "A motion under Rule 141(c) must be filed within a reasonable time, and for reasons (1), (2), and (3), within six (6) months after the judgment or order was entered or after the proceeding occurred."

It has been longer than 6 months already!

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1 hour ago, EPAJ said:

The reason I was asking is that I found another post on here that seemed to not recommend doing that

I don't agree with most of that post for two reasons.  1.) you don't yet know what plaintiff's discovery and disclosure will reveal about the debt; and 2.) You don't know how to argue standing, foundation or hearsay either, but you have plenty of time to learn it between now and when you are likely to need to make these arguments.

I do agree that you shouldn't copy-n-paste someone else's pleadings and filings, though.  It's fine to use a sample to get an idea of what your own docs should look like, but they should be written from scratch and customized for the details of your case.

1 hour ago, EPAJ said:

I looked up Rule 141c and it says that "A motion under Rule 141(c) must be filed within a reasonable time, and for reasons (1), (2), and (3), within six (6) months after the judgment or order was entered or after the proceeding occurred."

It has been longer than 6 months already!

Keep reading:

Quote

This rule does not limit the power of the court to relieve a party from a judgment, order, or proceeding if a fraud was committed upon the court;

According to your version, the process server lied to the court about the events of the service.  If this isn't fraud, I don't know what is.

The problem you're going to encounter is that, unless you did not live at the address where the server claimed you were served or you can prove you weren't there at the claimed date and time, you're going to have a hard time proving the process server lied.  The picture of the door with no screen may be persuasive, but how can you prove a screen door wasn't removed after the process server was there?  I'm playing devil's advocate because you need to be prepared for their response to your motion to set aside judgment.  You can bolster your claims with an affidavit stating your version of facts.

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