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SillyRabbit

I am going after Midland lawfirm. Filing Motion to Vacate Summary Judgement, same as Motion to Vacate Default and with new Answer

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Hello, board. I am in the library now, multitasking and choosing to not take my judgement against Midland lying down. It seems they do in fact have no contract with me, my original contract was with another company. This site is giving me a lot of the ammunition I will use: https://toughnickel.com/personal-finance/You-Can-Beat-Credit-Card-Debt-Collectors

My Judgement was entered less than one year ago and it is in New Jersey. I will cite NJ Court Rule 4:50-1, sections (a),(b)and (c) as the reason for the Motion To Vacate. They obtained Summary Judgement, but is not the way to use against Default the same? I do not know. This is in the Special Civil part, so i don't think there is a fee to bring this motion and action. As stated, this Judgement was entered less than one year ago. I am drafting all the forms now.

I will include a Request for Production (as the site says) and also argue that Midland was not the Holder In Due Course when it bought my defaulted debt; since a new Answer is required.

I cannot think of any counterclaims to put.

Any tips or info? I still have some time to file, so I can always amend what I am doing? Thank you!

also: http://dui.law535.com/attorneys/81-Scott-d-bullock.html

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On 3/24/2018 at 9:45 AM, SillyRabbit said:

Hello, board. I am in the library now, multitasking and choosing to not take my judgement against Midland lying down. It seems they do in fact have no contract with me, my original contract was with another company. This site is giving me a lot of the ammunition I will use: https://toughnickel.com/personal-finance/You-Can-Beat-Credit-Card-Debt-Collectors

My Judgement was entered less than one year ago and it is in New Jersey. I will cite NJ Court Rule 4:50-1, sections (a),(b)and (c) as the reason for the Motion To Vacate. They obtained Summary Judgement, but is not the way to use against Default the same? I do not know. This is in the Special Civil part, so i don't think there is a fee to bring this motion and action. As stated, this Judgement was entered less than one year ago. I am drafting all the forms now.

I will include a Request for Production (as the site says) and also argue that Midland was not the Holder In Due Course when it bought my defaulted debt; since a new Answer is required.

I cannot think of any counterclaims to put.

Any tips or info? I still have some time to file, so I can always amend what I am doing? Thank you!

also: http://dui.law535.com/attorneys/81-Scott-d-bullock.html

No, you cannot use a motion to vacate a default judgment when a summary judgment has been rendered because they are 2 completely different types of judgments.   A default judgment occurs when a defendant has failed to answer a summons and complaint.  Summary judgment occurs when the defendant has answered.

You would have needed to file a motion for reconsideration or file an appeal.  Usually a motion for reconsideration must be filed within 20 days of the judgment and an appeal must be filed within 45 days.   Your court rules will contain that information.

In regard to self-help sites, please read the following:

https://www.creditinfocenter.com/community/topic/329546-beware-of-some-self-help-sites-and-articles/

"You Can Beat Credit Card Debt Collectors" is full of inaccurate information.  Notice the author provides very little proof in the way of court rulings or laws to support his claims.  Many of his claims are unsupported by law.

 

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BV is correct, generally if the judgment that was entered was a summary judgment, meaning that you answered the complaint, and filed opposition and the judge still ruled against you - normally you could either make a motion for reconsideration or re-argument (which judges rarely overrule themselves) or file for leave to appeal that decision.  Those time frames are generally short.

The only limited exception is that if you defaulted in response to the summary judgment motion because they did not mail the summary judgment to your proper address or something of that nature (i.e., you did not put in opposition because you had no idea there was a motion pending, which would also be rare) then you might be able to vacate your default in opposing the motion for summary judgment on that ground.  

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3 hours ago, SillyRabbit said:

This site is giving me a lot of the ammunition I will use: https://toughnickel.com/personal-finance/You-Can-Beat-Credit-Card-Debt-Collectors

Sadly that site is RIDDLED with errors and has almost nothing based in legal fact.  If you really want to know if this is worth pursuing most Consumer Attorneys will do a first consult for free.  Run the entire case past one of them and see if they agree you should try and get it vacated.

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Ohhh, darn. 

It looks like then I won't be trying to get that reversed then. Default and Summary as different... makes sense.

Why don't these judgements show on my credit report?

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Could be one of a few reasons.  First, the CRA's instituted a relatively new policy of not reporting judgments unless creditors had access to certain data that can confirm the judgment.  Notwithstanding that, the court might not be a court of record or the CRA's just have not located the judgment yet through data scrubbing. 

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@SillyRabbit

If you end up having any more credit card problems, come back to this site.  The other site has too much incorrect information.

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I too have a summery judgement, now Mitland had a wage garnishment to my work and sent me its first notice, what should I do ? Please help. I do not know much the law, and I cannot afford an attorney.

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8 hours ago, Le4420 said:

I too have a summery judgement, now Mitland had a wage garnishment to my work and sent me its first notice, what should I do ? Please help. I do not know much the law, and I cannot afford an attorney.

You should have started your own thread, but the answer to your question is short and sour. 
 

Once you have lost the case, and they have filed a wage garnishment, it is too late to do anything.  Your employer will take the money out of your wages until the judgment plus interest is paid off.
 

The only exception is if you are judgment proof 

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Sorry I was not sure to start my own threat, can you tell me more about judgement proof and how to be, please.

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11 minutes ago, Le4420 said:

Sorry I was not sure to start my own threat, can you tell me more about judgement proof and how to be, please.

Judgment proof is the common phrase but the more accurate phrase would be collection proof.  Except in a very small number of states (FL is not one) where wages cannot be garnished you are not collection proof.  People on disability, social security or pensions would be collection proof.  Florida does have a head of household exemption.  You can check and see if you qualify for that.  All it will do is temporarily stop the wage garnishment but the post judgment interest will keep adding up.  It will also not keep them from levying your bank account.  

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Is really nothing I can do about my case like to make the judgement disappear or appeal... please help.

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1 hour ago, Le4420 said:

Is really nothing I can do about my case like to make the judgement disappear or appeal... please help.

WHEN did they get the summary judgment?  Most states only allow 30 days after the judgment to appeal.  If that window has closed no you cannot appeal.  Unless you qualify for bankruptcy there is no way to simply make the judgment disappear.  Especially considering they are not garnishing your wages.

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The summary judgement was in early 2007 , I was not known what to do at that time and now they start wage garnishment. 

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23 minutes ago, Le4420 said:

The summary judgement was in early 2007 , I was not known what to do at that time and now they start wage garnishment. 

Unless you were not properly served, there is probably no way you can get the judgment vacated after 13 years.  

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What is a properly served, I still don't know, all I can recall at that time back in 2007 that someone hand me a court paper told me to go to court, at the court a judge talked with me and Midland lawyer ( through a phone ) and then asked me signed the paper ( I cannot remember the conversation ), The original creditor name and the account really mine, but the amount is not like what I known (the origin debt was in 2002 or 2003).

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20 minutes ago, Le4420 said:

What is a properly served, I still don't know, all I can recall at that time back in 2007 that someone hand me a court paper told me to go to court, at the court a judge talked with me and Midland lawyer ( through a phone ) and then asked me signed the paper ( I cannot remember the conversation ), The original creditor name and the account really mine, but the amount is not like what I known (the origin debt was in 2002 or 2003).

You were handed the summons, so you were properly served.  You went to court and signed the judgment.  The time for disputing the amount was before you signed papers.  

You could speak to an attorney now to make sure the judgment was properly filed.  However, outside of that, I doubt anything can be done.  

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I was talk to some attorney yesterday and they all told me to settle with DC (DC don't accept less amount) or BK, not really help. I am looking to vacate the judgement or dissolution or dissolve my case

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1 hour ago, Le4420 said:

I was talk to some attorney yesterday and they all told me to settle with DC (DC don't accept less amount) or BK, not really help. I am looking to vacate the judgement or dissolution or dissolve my case

They told you to settle, because you knew about the lawsuit, signed the judgment, and too much time has passed. A court would not vacate the judgment now. 

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You can want something all you want, that does not mean it is not going to happen.

The way I see it, the lawyer is correct. The only 3 options you have are to let them garnish your paycheck, try to settle the debt, or declare bankruptcy. You are not going to get this vacated because this is a proper judgement which has not reached the statute of limitations for judgements. Here is why I think the lawyer is correct:

  1. You were properly served
  2. You went to court and presented your case and the judge found against you or you signed a consent judgement as a settlement. Either way, you lost and a judgement was issued against you. If the original debt SOL had passed, you should have brought that up in 2007, not now.
  3. You usually have 30 days to appeal a ruling against you. You did not do that.
  4. The SOL for a judgement in Florida is 20 years so that has not passed yet.

I see nothing wrong with the judgement or the manner in which it was issued. If you try to get it vacated, the judge is going to laugh at you so don't waste your time. If this is not what you want to hear, then you are in the wrong place because we will tell it like it is without any nonsense and in this case, you cannot do anything at this point except pay the debt, including the 13 years of interest which I sure has been added. The debt collector does not have to offer a favorable settlement to you because they hold most of the cards and you really have no leverage here.

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