I would know if a process server tried to serve me. Someone is always home and being that I live in a condo the guard tells me if someone has tried to get in. I guarantee you they can't come up with proof other than a statement that they sent it by US Mail.
I check the public records and court under my name in my county and there's nothing but a one page default judgment. Where else would I look for evidence of a personal property lein?
For substituted service the attorney's office is not the one that does the mailing ... the attorney's office prepares the envelopes with postage and the green cards, and the Secretary of State's office actually puts the items into the mail when they accept service on the defendant's behalf. It obviates the argument that the items didn't get mailed. It does not obviate the argument that the plaintiff could have used a better address ... the address the plaintiff used is on record. If the defendant can show that in the exercise of due diligence the plaintiff would have had a better address ... there may be grounds to attack the judgment. Having used the substituted service method myself, I can tell you that personal service is preferable--you're not going to do something second-best until you've done an alias and perhaps a pluries summons at places that you think the debtor can be found. Where I worked at the time, though, we had the advantage of access to the debtor's D/L records and there is a legal requirement that people update the DHSMV with their new addresses within 10 days of moving, so that pretty much covered our due diligence in terms of last known address. A private attorney's due diligence would be from a CRA credit report, from Lexis/Nexis or Choicepoint, or from the post office's mail forwarding stickers.
The address on my credit reports or DL have always been accurate. Also I might mention it's a different attorney who is trying to garnish the wages than the attorney who filed the judgment even though the plaintiff has always been listed a Providian. I guess Bank of America bought Providians paper because now they are mentioned too. BTW these undated unsigned Garnisment papers were sent by US Mail. No return receipt. Just first class mail.
I know of no instance where BofA got hold of any defaulted Providian paper and I would die from shock were I to learn of it happening. BofA isn't in the business of being a JDB. Period. It's more likely that there is perhaps a word-processing error that has BofA's name on your paperwork unless BofA is the first place they're looking for an account of yours and they're doing a serial blanket levy, simply hitting every major player in the area and working their way down the food chain until they hit the minuscule bank that opened last month (assuming they're checking the FDIC website for banks in your area). In a major metropolitan area that could take a while. It could also present "planning opportunities" for you to take your business someplace far, far away...
The initial service of process is the service that needs to be good. Eight years ago. Where were you in '00? And how easy were you to find? Right now, all they need to do is mail you things, regular mail ... but if the initial service is no good, anything they're mailing you becomes a nullity.
On the Writ of Garnishment Providian is listed as the Plaintiff, BofA is listed as the Garnishee, Ralph Marcadis is the Attorney for Plaintiff. I don't have an account at BofA but I did at one time. Does this mean they are trying to garnish my bank account and are fishing for my bank? So if they find my bank they will be able to take the money? If so, will putting it into a corporate account protect it?
Yes and yes. I'm also hoping BofA isn't a current creditor of yours... The good news is that these are the tactics of an ambush predator and not a cursorial hunter (and even the cursorials use ambush 90% of the time). Wherever your account is now, it had better not be where it's easy to find ... are there any breadcrumbs to it on your CRA reports? Do you pay any local creditors who are listed on your CRA reports from the account he's trying to find? He can subpeona the creditors and triangulate back to the account they get paid from. If he goes cursorial, though, he's going to call you in for a debtor's exam or send you interrogatories in aid of execution. Don't ignore them and get tagged for contempt. The longer you can keep an ambush predator at bay, the likelier they are to just go away. The same is less true for the cursorial hunter ... but even so, there are few Captains Ahab among them. Chasing debtors is a numbers game, and an attorney who tells another attorney a war story about a long and arduous pursuit over an $11k debt is going to be thought something of an idiot even if he ultimately collected ... there are better uses for his time.
Yes I was easy to find and I always used a forwarding address. Upon reading this writ I see they are searching for my bank. I do have a savings account with more the the 11k they are seeking. It's bearing interest so I'd hate to move it but if need be I can put it in my fiance's account which is bearing the same interest rate. I also own a car worth about 25k that's free and clear. Do you feel that money is truly in jeapordy? Should I move the money and car ownership until I take care of this judgment?
I would worry about fraud, but hey that's me. Now how the heck did you mange to find out about NOW after all these years?
Everything you have is in jeopardy ... especially if it's a matter of public record, or if your CRA reports would disclose it ... or if they would disclose anything that could lead to a disclosure of it. For that matter, a creditor who is feeling frisky could take a whack at throwing you into involuntary BK (but that's more likely to bite them back than not).
Once the low-hanging fruit is put out of easy reach it would be time to settle this ... on the low side. Assuming you're not going to try to contest the original service of process issue.
Are you saying moving anything around would be fraud? No, not fraud. Fraudulent transfer, yes ... but that's not criminal, not even a civil wrong ... just subject to being undone by the court. And the OP found out because somebody mailed him the garnishment that was sent to BofA (not sure if BofA sent a courtesy notice, or if the attorney sent the notice).
Would it be worth threatening to press civil and criminal charges for their rep impersonating an Invesigator. I read somewhere that that was a crime. I once got a case dropped for a friend by threatening to press charges under the RICO Act in addition to complaining to the bar and countersuing, so I wonder if the Investigator infraction might take some wind out of their sails.
In my county the clerk has record filings online. I see no paperwork filed. How would I find out if this is a bogus case number and if a writ was really sent to BofA?
They probably chose BofA to start with because I used to have a business account with them. Nothing on my credit report should lead them to my savings account and it's one of the smaller banks. Why do you say "I hope BofA isn't one of your creditors?" Could they max out my credit card or something?
No. If BofA were to be a creditor then a subpoena directed to them would likely tell the attorney what account you use to pay them. Unless you're paying by money order back to the dawn of time. As for court records ... you have a county clerk/recorder and a court clerk to think about. The court clerk's records will be where the meat is ... the clerk/recorder will just have the judgment on file. The court clerk may have already destroyed the file ... and if they did, that will eliminate any possibility of going after that improper service. As an attorney it would not seem a winning strategy to wait years and years for file destruction just to immunize a case from having its bad service potentially overturned, but hey, anything's possible. Many attorneys do wait for default judgments to "season" for one year so that the usual reasons to overturn them can't be used. Eight years seems a bit of a stretch though. Better to strike while the iron's hot.
