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I am about to argue a motion to vacate a default judgement.  The original complaint was filed against me without my knowledge in late 2011.  The alleged date of default is from 12/5/08.  I only learned about the lawsuit in April 2016, when I was sent a Notice of Wage Garnishment.  I am arguing pro se.  I did already object to the wage garnishment but in addition I have filed this motion to vacate. 

The Plaintiff (Midland Funding) and their attorney (Pressler & Pressler) sent everything from the initial 2011 complaint to the wrong address, even though I had formally changed my address with Motor Vehicle back in early 2010.  The original debtor was Target National Bank.  My primary defense is lack of personal jurisdiction, improper service.  In addition, the city I moved to was in an entirely different county from where the lawsuit was filed. (Filed in Cumberland County, NJ and I reside in Salem County, NJ).  I am hoping to win the motion without putting much emphasis on the County difference.  I am comfortable with the current judge and don’t wish to change venues unless it is my only option left. 

Soon after I filed the Motion I received a letter from the Plaintiff's attorney asking me to prove my address from November and December 2011, when service occurred.  As far as I know I already did provide proof of address change and enough documentation to show a pattern of my whereabouts during this time period.  I am not sure if I should send them something right away or wait to see if the judgement is vacated?  I have requested they Validate the Debt already and Pressler & Pressler refused since they had already won the default judgement.

In any case, if my motion to vacate is successful, I would assume Midland Funding will attempt to refile. They might refile in Salem County this time, or attempt to restart or refile in Cumberland County.  NJ Statute of Limitations on Debt Collection is 6 years.  Since the original date of default on the debt is from 2008, is this debt now considered time-barred?  Or is there any reason the statute of limitations would be ignored or reset?  Of what issues should I be aware?  

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28 minutes ago, huntrosa8 said:

I have requested they Validate the Debt already and Pressler & Pressler refused since they had already won the default judgement.

P&P does not have to validate now that is correct.  Once they have a judgment it is WAY too late for that.

29 minutes ago, huntrosa8 said:

I am not sure if I should send them something right away or wait to see if the judgement is vacated?

You have NO obligation to prove anything to them.  Prove it to the court then go after them for the FDCPA violation.

30 minutes ago, huntrosa8 said:

NJ Statute of Limitations on Debt Collection is 6 years.  Since the original date of default on the debt is from 2008, is this debt now considered time-barred?

If the judgment is vacated:  yes.

30 minutes ago, huntrosa8 said:

Or is there any reason the statute of limitations would be ignored or reset?

No

Use the CFPB to your advantage and the fact that P&P has been targeted and settled for their numerous violations of the law exactly like what they did to you.  Midland too.

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Thanks Clydesmom and BV80 for the input.  I am happy to know that I am on the right track.  

BV80, New Century V Marie Pierre was a huge resource for me while drafting my motion to vacate.  

And Clydesmom, I have filed a complaint w/ the CFPB and also mentioned the Consent Orders against Midland and Pressler in my motion.  

I have called multiple attorneys that practice Consumer Law in my state and they have all suggested I handle this on my own.  However, I was concerned that I was missing key points that I would have otherwise understood if I were a lawyer.  The statute of limitations point concerned me the most.  It's good to know that if I am successful in court that they cannot go after me anymore.  

 

 

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13 minutes ago, huntrosa8 said:

It's good to know that if I am successful in court that they cannot go after me anymore.  

No, they can't but if it were me without warning or delay I would be filing a complaint in Federal Court against both Midland and P&P for the FDCPA violation(s) and forcing them to pay ME.

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20 minutes ago, Clydesmom said:

No, they can't but if it were me without warning or delay I would be filing a complaint in Federal Court against both Midland and P&P for the FDCPA violation(s) and forcing them to pay ME.

Clydesmom do you mean to say that there are potential FDCPA violations now?  Or that Midland would be violating FDCPA if they try to restart the case after the judgement is vacated?  I am attaching a copy of the motion to vacate.  Towards the end is when I mention FDCPA violations and the CFPB Consent Order.  I don't really know how to word that properly for court, but I definitely feel that it is relevant.  

Midland might be violating the FDCPA or the CFPB Consent Order, but we cannot prove that unless we are granted discovery.  However, in order to permit discovery, the motion must be void.  Since the debt would be time-barred, Midland cannot legally refile this lawsuit.  Therefore, I don't really have to prove that they violated the Consent Order or that they are in violation of the FDCPA.  Is that correct or can the judge permit discovery without throwing out this judgement?  

Thanks you are a big help!

 

Motion to vacate forum.docx

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22 minutes ago, huntrosa8 said:

Clydesmom do you mean to say that there are potential FDCPA violations now?

NOW! :)  Filing in the wrong county and using sewer service to ensure a default judgment because you have NO clue you were sued are BIG violations.  It is the primary reason(s) that Midland and P&P were targeted by the CFPB.

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18 hours ago, huntrosa8 said:

Thanks Clydesmom and BV80 for the input.  I am happy to know that I am on the right track.  

BV80, New Century V Marie Pierre was a huge resource for me while drafting my motion to vacate.  

And Clydesmom, I have filed a complaint w/ the CFPB and also mentioned the Consent Orders against Midland and Pressler in my motion.  

I have called multiple attorneys that practice Consumer Law in my state and they have all suggested I handle this on my own.  However, I was concerned that I was missing key points that I would have otherwise understood if I were a lawyer.  The statute of limitations point concerned me the most.  It's good to know that if I am successful in court that they cannot go after me anymore.  

 

 

Phillip Stern is one of the most prolific JDB defense attorneys and among the best FDCPA advocates not only in your state but in the whole USA.     http://philipstern.com/index.html

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Before we get too far ahead of ourselves here regarding SOL, let's consider the fact that in many cases like this, the judge vacates the default judgment but does NOT toss out the plaintiff's lawsuit.  Often, the plaintiff is made to serve you properly, and the court regards the original filing date as still being the valid date the case was filed.  That means that SOL will likely not come into play on this, at least, not right away.   Sometimes, even filing against you in the wrong court may not end their case either, they would just transfer it to the proper county where you live.  The thing is, courts will try to act in a way that prevents needless refiling of cases.  If the plaintiff indicates that it will simply refile a case, often the judge will not dismiss their case but allow them the chance to fix what is wrong and then continue on. 

 

CFPB has taken action against both parties.  That action might be sufficient for you to force a dismissal.  I would recommend looking at that county clerk's office where they filed, and check everything about that case.  How did they claim to have served you?  If they claimed personal service on you at that wrong address, then you have them in a violation.  Compare everything that they filed to what the CFPB order says they must provide in order to be compliant when suing a consumer.  If they missed that mark, and they most likely did, then use that.  This is possibly going to be a multi-step process, with the ultimate goals to be first to get the default vacated, and then second, to get their case dismissed.  Only then, once you have a dismissal, are you protected by SOL.  If you get the judgment vacated, there's a chance that they will drop the case themselves.  But before you go filing any lawsuits, FIRST check the docket of the default judgment case.  You might just find that there are more violations that you should add into the mix.  When MCM threatened to sue me over a debt I had never even heard of before,  I beat them by applying the full pressure of every violation I had proof that they had committed.  They chose to settle quietly.  Take a moment to look for every violation you can find, and then when you file suit, use them all.

 

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1 hour ago, kraftykrab said:

Before we get too far ahead of ourselves here regarding SOL, let's consider the fact that in many cases like this, the judge vacates the default judgment but does NOT toss out the plaintiff's lawsuit.  Often, the plaintiff is made to serve you properly, and the court regards the original filing date as still being the valid date the case was filed.  That means that SOL will likely not come into play on this, at least, not right away.   Sometimes, even filing against you in the wrong court may not end their case either, they would just transfer it to the proper county where you live.  The thing is, courts will try to act in a way that prevents needless refiling of cases.  If the plaintiff indicates that it will simply refile a case, often the judge will not dismiss their case but allow them the chance to fix what is wrong and then continue on. 

CFPB has taken action against both parties.  That action might be sufficient for you to force a dismissal.  I would recommend looking at that county clerk's office where they filed, and check everything about that case.  How did they claim to have served you?  If they claimed personal service on you at that wrong address, then you have them in a violation.  Compare everything that they filed to what the CFPB order says they must provide in order to be compliant when suing a consumer.  If they missed that mark, and they most likely did, then use that.  This is possibly going to be a multi-step process, with the ultimate goals to be first to get the default vacated, and then second, to get their case dismissed.  Only then, once you have a dismissal, are you protected by SOL.  If you get the judgment vacated, there's a chance that they will drop the case themselves.  But before you go filing any lawsuits, FIRST check the docket of the default judgment case.  You might just find that there are more violations that you should add into the mix.  When MCM threatened to sue me over a debt I had never even heard of before,  I beat them by applying the full pressure of every violation I had proof that they had committed.  They chose to settle quietly.  Take a moment to look for every violation you can find, and then when you file suit, use them all.

 

Interesting.  That is the type of information that I don't know as a layperson.  I did not realize that vacating the judgment did not necessarily mean the case would have to be refiled.  Can I move to dismiss right there at the hearing if the judge grants my motion to vacate? OR Do I have to file the motion to dismiss separately?    

They served me at an old address.  I had moved nearly two years before.  The certified letter was returned as "Unclaimed" and "Unable to Forward".  The regular mail was not returned, but I am not aware of what the occupant at the time did with the letter.  So according to the court, service was good, but I have proof that had been living elsewhere.  

I definitely plan on working that consent order angle too.  

 

 

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21 minutes ago, BV80 said:

Have you looked in the court file to find out how they claim you were served?

All the court gave me was a copy of the returned Certified Mail Stub and they verbally told me that regular mail was not returned so they consider the service to be good.  

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10 minutes ago, huntrosa8 said:

All the court gave me was a copy of the returned Certified Mail Stub and they verbally told me that regular mail was not returned so they consider the service to be good.  

Contact Philip Stern as was suggested by @texasrocker.   He could answer any questions about court rules, vacating the judgment, and possible FDCPA violations.

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The court clerk told you that the service was "good"?  Be careful not to buy too much into what court clerks say.  Many of the employees at those offices do not know what they are talking about when it comes to various laws, and it's best to verify what actually took place and compare it to what the law in your state requires.  For example, I pulled this from the NJ Courts website:

(1) Initial Service. The clerk of the court shall simultaneously mail such process by both certified and ordinary mail.

Attorneys shall submit to the clerk the mailing addresses of parties to be served and the appropriate number of copies of the summons and complaint. The clerk shall furnish postage, envelopes, and return receipts and shall address same. Mail service on each defendant shall be placed in separate envelopes by the clerk regardless of marital status or address. Process shall be mailed within 12 days of the filing of the complaint. The clerk thereafter shall send a postcard to plaintiff or the attorney showing the docket number, date of mailing and a statement that, unless the plaintiff is otherwise notified, default will be entered on the date shown. If service cannot be effected by mail, the clerk shall send a second card to the plaintiff or attorney stating the reasons for incomplete service and requesting instructions for reservice.

Check the bold text.  Pressler was to provide the correct information to the court clerk in its paperwork so that the court clerk could mail the summons to you.  Pressler provided the wrong address to the court.  Now, I would look for ways to show that they KNEW it was the wrong address.  One of the easiest would be my credit reports.  As an example, let's say that Midland was reporting this debt on your credit reports.  Let's also say that your credit reports contained your updated address.  That would show me that there's NO legit way that Midland/Pressler would be able to claim they did not know.  You probably do not have any, but if you have any credit report copies hanging around from 2011, you can check to see what address is listed at the top for you.  If it's the new address and Midland was reporting--or even if Midland just pulled your credit back then--then you would have all the proof you should need.

22 hours ago, huntrosa8 said:

Can I move to dismiss right there at the hearing if the judge grants my motion to vacate? OR Do I have to file the motion to dismiss separate

Depends.  If the judge vacates and tosses their case out, then there's no need to worry about it.  If the judge vacates and starts the whole mess over, then the court will likely wait until it can see what evidence is brought to light.  There would have to be a solid reason for the court to agree to dismiss the case at that point, and if the whole case restarts, then dismissal would most likely be premature.  You already wrote your motion to vacate and filed it, correct?  If I were doing this, I would write a motion to vacate that would also point out the evidence that they brought.  I would then compare that evidence to what the consent orders require them to provide.  I'd pretty much bet money that what they provided is not nearly enough.  I would then point to that and state to the court that, had you been made aware of the case, you would have had plenty of reason to fight their claims, and that allowing the default to stand would be an injustice in light of what the CFPB has ruled they must provide to prove their claims.  That would accomplish two things.  First, it would let the court know what standard they are required to meet, and that they did not meet it.  Second, it would put Midland/Pressler on notice that you are fully aware of what standard they must meet, and that they did not meet it.  They might choose to drop the case themselves when they know this.  If they do not have any more genuine evidence to present, and they know you intend to hold them to the consent order requirements, they might just pass and avoid spending any more money on a losing effort.

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@huntrosa8

While you were required to change your address with the DMV as you did, did you also provide a change of address at the post office?   If not, since the date of default was 2008, Target would not have your new address which means Midland could argue that it had no way of knowing it.

Was the lawsuit filed in Special Civil?  If so:

6:2-3(d):

(4) Effective Service. Consistent with due process of law, service by mail pursuant to this rule shall have the same effect as personal service, and the simultaneous mailing shall constitute effective service unless the mail is returned to the court by the postal service with a marking indicating it has not been delivered, such as "Moved, Left No Address," "Attempted Addressee Not Known," "No Such Number/Street," "Insufficient Address," "Not Deliverable As Addressed - Unable to Forward," or the court has other reason to believe that service as was not effected. However, if the certified mail is returned to the court marked "unclaimed" or "refused," service is effective provided that the ordinary mail has not been returned.

You said you referred to New Century Financial v. Pierre for your MTV, so you can see from that ruling that the clerk to whom you spoke could be correct.  However, also based on the ruling, the judgment could still be vacated.

Did Midland include an affidavit in the filing?  If so, what does it say?

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If you didn't live there and your name wasn't on the mailbox, that's all that matters. If these guys try to use the "didn't leave a change of address at the post office" excuse, that wouldn't really fly either even if you didn't. The mail would have been returned with an endorsement that wouldn't have met proof of service requirements or the post office messed up.

http://pe.usps.com/text/dmm300/507.htm#xd_507_1_4

BTW, that Judge in the Pierre case sounds like one of those doing most of the Plaintiff's work while the JDB attorney sits back.

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10 hours ago, CCRP626 said:

The mail would have been returned with an endorsement that wouldn't have met proof of service requirements or the post office messed up.

What do you mean "with an endorsement that wouldn't have met proof of service requirements"?  Are you referring to signing for certified mail?

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Long story short- get more detail from the clerk or pull the file and see what they show. See the USPS link posted earlier.

If the OP moved years prior to any lawsuits, regular (non-Certified) first class mail would have been returned to sender with an appropriate endorsement whether the addressee filed a change of address order with the post office or not. So, you've probably got years of JDB and/or OC letters in the mail then it sounds like the court for proof of service sends both first class mail as well as certified which adds a few additional endorsements.

Personal note- when I've moved into a new address, for a long time after moving I've seen mail left for names not/never been/no longer? at the address. Some of the carriers will leave a note asking if the right address or do they live here since the name isn't on the mailbox. When it's been an apartment they're more strict, like name must be on mailbox or no service will occur. I could see in this situation how both a certified letter would have been returned as "unclaimed" since no one ever showed up to sign for it and the regular mail would not have been returned. That (unclaimed certified+ unreturned regular mail) would have met the court's standard for proof of service posted above by @BV80 although the person wasn't at the address.

 

 

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@CCRP626

I see what you meant.

Well, the OP said he moved in 2010 and the lawsuit was filed in 2011.  Default was in 2008, so any collection letters from Target would have been sent to the proper address.    Unless the OP informed Target of his new address, the company would not have it and would not have been able to provide it to the JDB.

If anyone was living in the house at the time regular mail was received, it's obvious the resident didn't return it to the mail carrier or the post office with an explanation that the OP no longer lived at that address.   I'm actually very fastidious about that because my thought is that the person to whom a letter is addressed may need it, so unless it's an advertisement, I always return such a letter to the mail carrier with an explanation.

However, I don't see this as a problem.  The OP can prove he wasn't living at the address to which the summons and complaint was mailed.  Also, just like the defendant in Pierre, the OP took immediate action once he found out about the judgment.

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@BV80 Exactly, even with all these things the OP's affidavit stating he didn't live at the address at the time is what counts. The problem I see is when it takes an appeal to get fixed correctly.

I'd just be interested to see the court file the clerk said met their standards. I could even see if the system worked correctly and USPS returned all these ordinary first class and certified letters to the court if the court still forgot to file them, it all looks good in the case file. The court only knows if they don't have something, it must be fine. I guess like not answering a complaint.

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3 minutes ago, CCRP626 said:

@BV80 Exactly, even with all these things the OP's affidavit stating he didn't live at the address at the time is what counts.

I'd just be interested to see the court file the clerk said met their standards. I could even see if the system worked correctly and USPS returned all these ordinary first class and certified letters to the court if the court still forget to file them, it all looks good in the case file. The court only knows if they don't have something, it must be fine. I guess like not answering a complaint.

I agree that it would be interesting to see what's in the court's file.   But according to the rules, as long certified mail is returned as "unclaimed" or "refused" but regular mail is not returned, service is effectuated.

I can see a court's reasoning for such a rule, but I have a problem with service by "regular" mail.

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@BV80 I agree, it makes sense the way they send two different letters. If an ordinary first class one isn't returned, you must live there and if you don't sign for a certified letter that says it's from the court or a JDB, it's proof you must be avoiding service. Default Judgment.

One thing New York did due to so many default judgment problems is use the DMV address database to also send letters to. I can see how that might have helped in the OP's case.

 

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You guys have posted a lot of good insight on that angle, but there's still the angle that I mentioned about credit reporting.  Regardless of what the post office did or did not do, if there was anything at that time about the OP's correct address showing on the credit reports, and if Midland did a pull or reported to the OP's credit, then they have no excuse because there's no way they would not have seen that.  The thing is, ANY way that they would have seen that new address would be sufficient, if you could prove it, to shut down any claims on their part that they did not know what they were doing.  The USPS is one thing, but the FDCPA is another entirely.  Especially if you can show that they had access to that new address prior to filing suit, and then combine that with the consent order where they got busted for sewer service.....I'd like to see them try to wiggle out of that.

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7 hours ago, CCRP626 said:

@BV80 I agree, it makes sense the way they send two different letters. If an ordinary first class one isn't returned, you must live there and if you don't sign for a certified letter that says it's from the court or a JDB, it's proof you must be avoiding service. Default Judgment.

One thing New York did due to so many default judgment problems is use the DMV address database to also send letters to. I can see how that might have helped in the OP's case.

 

I actually beg to differ.  Lots of people do not consider it a matter of importance when they get mail addressed to someone else.  They just throw it away.  The mail carriers down here VERY frequently put mail in my mailbox for people who dont even live on the same street as us, so they are not trustworthy enough or reliable enough IMO to count upon.  That means that if a system like that for service were present where I live, a LOT of people would be deprived of their right to due process simply because some folks don't care about doing the right thing.  If the certified letter gets returned because they tried to send it to you at an address you no longer live at, it becomes assumed that you were notified of it and simply refused to pick it up or sign for it.  That assumption should not be permitted because it leads to a lack of due process.  The one and only way that ANY process service system can be effective is if it can be proven in that system that the intended consumer was indeed made aware of the lawsuit filed against them, and that system leaves too many holes, and relies upon assumptions that do not belong.

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43 minutes ago, kraftykrab said:

that system leaves too many holes, and relies upon assumptions that do not belong.

Yes, including a Judge like this-

[THE COURT:] All right, I'll hear you on your motion to vacate.

[MR. PIERRE:] Your Honor ․ the basis for the motion to vacate is that we were unaware of the pending action against us because we were improperly served.   We weren't served.

[THE COURT:] What was improper?

[MR. PIERRE:] The notice.   We didn't receive a notice or summons, anything.

[THE COURT:] Let me ask you something.   Do you owe the money?

[MR. PIERRE:] No.

[THE COURT:] Aw, come on.

[MR. PIERRE:] No.   We, we, [are] contesting that also.   It's time-barred.

[THE COURT:] Well, how is that improper?   What was improper?

[MR. PIERRE:] They sent everything to the wrong address.   We never, ever lived at 1212 Schley [Street]․  [W]e were unaware of this matter until we got a wage execution ․ from the job.

[THE COURT:] You got it because you lived a few houses away.

[MR. PIERRE:] How [does] that translate that we [got] it?

[THE COURT:] And they sent it to the right address.   The mailman knew where you were living.

[MR. PIERRE:] No, sir, no.   We never got it.

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