Providian got a default judgement for 11k against me in 2000. Now eight years later they (Bank of America/Marcadis & Associates) sent me papers that they are trying to garnish my wages. I'm self employed and I got it off my credit but I would still like to put an end to this already. They were never able to validate the debt and never sent me notice. What should I do?
Google "statute of limitations", and go to your state's information. Within that description you might find something relating to judgments.
So there is no confusion, validation of a judgment is simply a copy of that judgment now. They no longer need to prove the original account.
I meant the OC was challenged to validate the debt and did not. I didn't notice the judgement on my public records until a couple of years later.
The OC has no obligation to validate under FDCPA. It appears you were served with a lawsuit and didn't file an answer. Unfortunately, that was your chance to dispute this debt.
Since it's eight years old, you are out of luck. Close your accounts. Then contact the judgment creditor and try to settle.
I find it hard to believe you were not served. Maybe you were not served personally, but more than likely someone you lived with was served. Almost every time someone tells me they never received anything other than a garnishment order, when i call the clerk I find out their spouse or teenage child was given the summons and lawsuit. That's proper service. Other times, I find the client was actually served personally. It is very rare there is no service when a creditor has a judgment (at least here).
I'm not out of luck. At the very least I know I can have the judgement vacated. If you don't know just say so, don't give bad advice.
In Florida you can be served by US mail. CA's simply don't send it and say they did. It's done routinely. Anyone who has "clients" knows this.
I think you'd better read the statute for how long you have to have it vacated. By your own post, you have waited six years. As enigma said, you are out of luck there. The only time you wouldn't have to worry about an SOL for filing a motion to vacate would be if the judgment was void for some reason. Lack of personal jurisdiction would be one reason. You shouldn't get pissy with people trying to help you.
Judgment was issued 8 years ago, you said you noticed it a couple of years later. SOL for filing a motion to vacate is 1 year in FL I believe.
First of all, DO NOT ever presume that I do not know what I am talking about! In Florida, a party seeking to set aside a default must establish three things under Rule 1.540: (1) excusable neglect; (2) a meritorious defense; and (3) due diligence. See Geer v. Jacobsen, 880 So. 2d 717 (Fla. 2d DCA 2004); Allstate Ins. Co. v. Ladner, 740 So. 2d 42 (Fla. 1st DCA 1999); Schwartz v. Business Cards Tomorrow, Inc., 644 So. 2d 611 (Fla. 4th DCA 1994). That being said, FLRCP 1.540(b)(5) does allow for the court to "entertain" a Motion to Vacate. The Family Law Section of the FL supreme Court has a nice form that you could use: www.flcourts.org/gen_public/family/forms_rules/922c.pdf Now, are you head of household or do you meet any of the other exemptions that are available to you?
Florida Rules of Civil Procedure RULE 1.080 SERVICE OF PLEADINGS AND PAPERS (a) Service; When Required. Unless the court otherwise orders, every pleading subsequent to the initial pleading and every other paper filed in the action, except applications for witness subpoena, shall be served on each party. No service need be made on parties against whom a default has been entered, except that pleadings asserting new or additional claims against them shall be served in the manner provided for service of summons. (b) Service; How Made. When service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court. Service on the attorney or party shall be made by delivering a copy or mailing it to the attorney or the party at the last known address or, if no address is known, by leaving it with the clerk of the court. Service by mail shall be complete upon mailing. Delivery of a copy within this rule shall be complete upon: (1) handing it to the attorney or to the party, (2) leaving it at the attorney's or party's office with a clerk or other person in charge thereof, (3) if there is no one in charge, leaving it in a conspicuous place therein, (4) if the office is closed or the person to be served has no office, leaving it at the person's usual place of abode with some person of his or her family above 15 years of age and informing such person of the contents, or (5) transmitting it by facsimile to the attorney's or party's office with a cover sheet containing the sender's name, firm, address, telephone number, and facsimile number, and the number of pages transmitted. When service is made by facsimile, a copy shall also be served by any other method permitted by this rule. Facsimile service occurs when transmission is complete. Service by delivery after 5:00 p.m. shall be deemed to have been made on the next day that is not a Saturday, Sunday, or legal holiday. (c) Service; Numerous Defendants. In actions when the parties are unusually numerous, the court may regulate the service contemplated by these rules on motion or on its initiative in such manner as may be found to be just and reasonable. (d) Filing. All original papers shall be filed with the court either before service or immediately thereafter. If the original of any bond or other paper is not placed in the court file, a certified copy shall be so placed by the clerk. (e) Filing Defined. The filing of papers with the court as required by these rules shall be made by filing them with the clerk, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note the filing date before him or her on the papers and transmit them to the clerk. The date of filing is that shown on the face of the paper by the judge's notation or the clerk's time stamp, whichever is earlier. (f) Certificate of service. When any attorney shall certify in substance: "I certify that a copy hereof has been furnished to (here insert name or names) by (delivery) (mail) (fax) this ____ day of __________, 19___. ___________________________ Attorney" the certificate shall be taken as prima facie proof of such service in compliance with these rules. (g) Service by Clerk. If a party who is not represented by an attorney files a paper that does not show service of a copy on other parties, the clerk shall serve a copy of it on other parties as provided in subdivision (b). (h) Service of Orders. (1) A copy of all orders or judgments shall be transmitted by the court or under its direction to all parties at the time of entry of the order of judgment. No service need be made on parties against whom a default has been entered except orders setting an action for trial as prescribed in rule 1.440(c) and final judgments that shall be prepared and served as provided in subdivision (h)(2). The court may require that orders or judgments be prepared by a party, may require the party to furnish the court with stamped, addressed envelopes for service of the order or judgment, and may require that proposed orders and judgments be furnished to all parties before entry by the court of the order or judgment. (2) When a final judgment is entered against a party in default, the court shall mail a conformed copy of it to the party. The party in whose favor the judgment is entered shall furnish the court with a copy of the judgment, unless it is prepared by the court, and the address of the party to be served. If the address is unknown, the copy need not be furnished. (3) This subdivision is directory and a failure to comply with it does not affect the order or judgment or its finality or any proceedings arising in the action.
If you know what to do, why are you wasting time here? I think you are screwed, and I think you've got a bad attitude.
Of course, all of what enigma quoted presumes that personal jurisdiction was acquired over the defendant/judgment debtor by effective service of process (which would include service by substitute service on the secretary of state that would allow for mailing CMRRR to the last known address of the debtor ... and that's a step that has prerequisites of its own). No personal jurisdiction ... that judgment is void, and will be subject to being vacated no matter how long the judgment debtor waits. The rules quoted by engima apply only to people who actually got served. Failure to acquire personal jurisdiction by effective service of process meeting minimum standards of notice implicates federal, constitutional due process of law standards that don't even need to be codified at the state level, although typically they are. However, waiting and waiting to fight after you learn of the judgment falls into the category of IJDLG (it just doesn't look good) and may make it very tough to establish the falsity of the method of service unless you've got dead-bang proof you were in Costa Rica or wherever at the time the process server was performing sewer service and saying that they had found you at such-and-such a place.
Also, the OP needs to check and see whether there's a personal property lien on file in Tallahasse against him. A lien will get the job done for the creditor, but if the creditor is relying on an execution... There is a very arcane argument to be made that judgments in Florida can only be executed on for one year (contrary to the Burshan and Marsh cases) since the 1967 repeal of the 1950 law that sunsetted judgments at 20 years ... the argument would be that the common-law dormancy of judgments reasserted itself in the absence of a statute to the contrary. If the argument succeeded, a judgment debtor who had an eight year old judgment against him then might be able to argue that letting it go 7 years wthout renewal constituted laches. IMHO, the chances of this flying are somewhere between the chance that Ron Paul will get elected president and the chance that gas will drop below $2.50. In other words counting on it would be a mistake. But stranger things have happened...
