Default Judgement Entered but Was Not Served

Discussion in 'Credit Talk' started by robhasty, Aug 14, 2007.

  1. robhasty

    robhasty Member

    Hello everyone, this is my first post...trying to figure out answer but need a little help:

    A default judgment was entered on my CR for an old credit card debt.

    A debt collector's rep. served my father at his home. I haven't lived there for years but that is apparently the last known address for me. The server asked if he was Robert H., which he is, but not the right one (we have different middle names).

    So, they served the wrong person, but now I've got the judgment on my CR and he's now got a lien on his house.

    I don't have a problem paying the debt, but my question is will the judgment remain on my CR after paying. Is there a way out of this since they didn't even serve the correct person. I'm not sure the best way to settle this in the interest of cleaning up my credit as well as removing the lien off his home.

    I'm in California. Thanks for helping.
  2. init2winit

    init2winit Well-Known Member

    You might be able to get the judgment vacated on these grounds: improper service.

    If for some reason you cannot get the judgment vacated, it will remain on the report for at least 7 years, possibly longer. But if you get it vacated, and then the creditor turns around and get a judgment on their intended target (you), the new judgment will remain on the report for at least 7 years, possibly longer.

    Once the mistaken identity issue is proven, they would have to remove the lien from his home.
  3. cap1sucks

    cap1sucks Well-Known Member

    Why is it still on there? He was wrongfully sued or wrongfully joined to the suit and he should file motion to vacate the judgment on those grounds and leave you out of it.

    Of course, they will try to trick him into stating who the correct person is if he isn't but it is not his responsibility to find the right person or even admit he knows who it is.

    He can also file a big lawsuit against them for the damages they have caused him. They owe him a lot of money.
  4. robhasty

    robhasty Member

    There really is no mistaken identity, I simply was not served....they served my father with similar name at his residence. I never lived there, they got his address off my CR because we continue to get each others stuff on our CR.

    I'm sure I can get the judgment set aside due to improper service but my question was to whom should I go to....the court and tell them my story or call the atty's office that was responsible for the suit and tell them they served the wrong guy.

    I do intend to pay up, but I will do so only after the judgment is removed ( and before they serve the right guy).

  5. init2winit

    init2winit Well-Known Member

    I would pay now, then clear dad's name. They have no way to get a judgment on a paid debt. And dad might be able to recoop your losses with a mistaken identity lawsuit to boot :)

    If you clear his name first, they are surely going to start searching for you (and probably find you), file suit right away, then you are stuck with a judgment.
  6. desertrat

    desertrat Well-Known Member

    I don't think you're understanding here. Somebody OTHER THAN YOU was served with papers for a lawsuit intended for YOU. THAT person failed to respond, the party who served him filed for a default judgement and the court granted it. Now THAT PERSON has a lien on his house from a judgement that was unlawfully served.

    That's no different than if they arrested someone else for a crime that you allegedly committed! How many people are sitting behind bars who were wrongfully arrested and convicted because they just never thought to do anything about it -- they're innocent, so surely this will all get cleared up, right? NOT!

    It's YOUR DAD who needs to do something. Not you. HE needs to get the judgement vacated. That will have the effect of removing it from your credit as well. Then they have to start all over again from scratch.

    First they have to find the REAL YOU. Just make sure your dad doesn't tell them.

    Your dad should call a lawyer immediately. Or you could find one for him. But either way, this is your DAD'S PROBLEM. You keep your head down and support him in clearing up his end of the deal. THEN worry about yours when it comes back later on.
  7. robhasty

    robhasty Member

    This will just show how screwed up and one-sided the system is...

    My dad can't do anything because the judgment is in MY name. If the server would have asked him "are you John W. Doe" he would have said nope, I'm John T. Doe. But all the server did was knock on the door and say "Are you John Doe?"

    Of course he said yes because he was - he didn't know why the guy was asking.

    So the the judgment was entered under my name after they served him.

    THEN the attorney went to the county in which we both live and put a lien on my fathers house thinking it was my house. Amazing because I don't own ANY real property and his house is in HIS name with HIS SSN. The Attys office believes his house is mine because his address is on my credit report. (our stuff gets mixed up all the time on our credit reports) Their using his address as "my last known address"

    I can't believe you can go put a lien on someone's property that easy...and then THAT person will end up having to pay an attorney to fix the problem. My father should be able to sue the attys office for placing a lien on the wron g property.
  8. cap1sucks

    cap1sucks Well-Known Member

    Of course, we didn't know all that when we answered your message.

    I'm going to have to give this one some thought to see how to go about taking care of your problem before I can give any further suggestions.

    It may be a couple of days or so before I can get to it because I'm really snowed under with work for the next couple of days or so.
  9. bizwiz41

    bizwiz41 Well-Known Member

    OK,, first things first; your father should be able to take care of this at the county courthouse by first obtaining a copy of the judgement (which should be a public record), and showing them the documentation (judgement, summons, copy of deed showing HIS full name). He may want to retain an attorney to ensure nothing is missed. Then, your father may want to sue for damages, though this will be hard to show (unless he is denied for credit somewhere in this process). Make sure he gets a full withdrawal of the lien, NOT just a release.

    Next, you have bought time, you should file a motion to vacate based upon lack of service. However, this is only time you've bought, they will start the process over. If you can pay it, settle for the least amount they will accept. You may be able to use your father's "suit" as negotiating leverage.
  10. desertrat

    desertrat Well-Known Member

    I still think your best bet in this case is to get an atty involved. He'd be able to deal with it and shield YOU (atty/client priv) while fixing things for your dad.

    If you do it on your own, you're probably going to need to be sticking your neck out there and they'll find you.

    BTW, how much money are we talking about here??

    If you're prepared to pay it, that might be your QUICKEST solution. (You said earlier you wanted to.) You might be able to get them to reduce the amount by threatening to sue them for their screw-up.
  11. cap1sucks

    cap1sucks Well-Known Member

    I think I have to agree with deserrat's advice.
  12. Collector2

    Collector2 Active Member

    What happened and why

    Upon receipt of a judgment, the attorney filed an abstract of judgment which lists your social security number and your dad's address. This is not a lien, but a public notice against you and any real property that you own.

    What you can do is file a motion to vacate based on improper service, attain an affidavit from your dad. Be prepared for the judge to rehear the motion and subsequently the case once the motion is granted. The court can view that because you filed the motion, you are now notified about the action and in court so the original case can be heard if the plaintiff and you agree.

    If you full pay the balance due before the motion, the attorney should let this matter drop. I normally recommend that the defendant get a certified copy of the motion and send this to the CRA.

    so your steps.

    File and complete a motion to vacate based on improper personal service

    Pay the debt, obviously this attorney is serious.

    If you are not able to pay, I have had many of a defendent request a stipulated judgment with payments to be monitored by the court.

    Get a copy of the judgment, with your name, and when you dad tries to refinance, have this ready for the title company. This situation is common for kids who share the same name of the parent. Most title companies will confirm the identity of the judgment before paying.

    The judgment is not a lien in CA. The lien would be rolled into the property tax and the only ones who have this authority is FEDS, State , County and City. Private parties cannot lien real property.
  13. collectman

    collectman Well-Known Member

    Actually, a collection agency/law firm can lien real property.

    How do I put a lien on the debtor's real property?
    Have the court clerk issue an Abstract of Judgment-Civil (form EJ-001) for a $15 fee. Take or mail the Abstract of Judgment to the County Recorder's office in the county where you believe the debtor owns real property. Click here to find a County Recorder. The recording fee should be about $20. You will not be paid automatically, but if there is a refinancing or sale of the property, you should get paid your money with interest. Check out Code of Civil Procedure sections 697.310 through 697.410. Some county assessors will confirm if a debtor owns real property over the phone.
  14. Collector2

    Collector2 Active Member

    Here is the real deal

    There is confusion about what a lien is. An abstract follows the person. A lien follows the property. I have been doing this for over 12 years. If a lien is filed, it is filed against the property using the APN number. Whoever the property owner is, when it comes time for their tax bill, well the item listed as lien will be on their bill. That is why our agency gets calls from new owners who have abatement liens listed and they are going ape sh_t because it appeared on their tax bill. We send a release to the county and essentially, go after the person who did own the property for the violation. (note, with frequent property flipping, we sometimes eat these because during the entire process, we can't determine who was the owner at this time)

    An abstract is a public notice letting the world know that Joe Blow owes me money. It is dubious if you don't have pertinent information such as the person's ssn or drivers license. The address is irrelevant and can only be used when you have to identify the person iwhen contacted by the title company for demands.

    An Abstract is not a lien, it acts a form of public notice, and trust me, if the def moves from county to county, it magically does not follow them. Therefore as practice, we file abstracts in nine counties to cover ourselves. If the person moves to another state, and is savvy, they will remove the California addresses and dispute the judgment and in the long run have the item removed. I know this because all of our judgments that are 2002 and older, the credit reports do not show the judgment.

    Since we are not an agency that is into the direct reporting, we are what you can call a litigous group, who after all efforts, even p-notes, will take the person, if we can find them, directly to court. And this is only if the account is even worth it.
  15. Evilhomer

    Evilhomer Well-Known Member

    I had a similiar situation ..I had a default judgement against me when I was never served. The address to the complaint was to my office. They claimed that they tried on 2 attempts. One at 6am the next time at 8:30 pm. If they really tried they would of come during business hrs. I filed a motion to get the default vacated but the Judge asked me to provide proof that this wasn't my debt. I explained that I was never served. He then jsut said that I could nt provide proof that this was not my debt then he would let it stand.
  16. Flyingifr

    Flyingifr Well-Known Member

    This statement is Dad's way out.

    The Judgment is not against him, it is against you. You both perceive it to be against him because of the name similarity. The Middle Initial clears it up.

    The Lien means little until dad goes to sell the property. At that point the Title Company will pick up the Lien because of the name similarity. All dad does at that point is sign a "Not Me" affidavit and the Title Company removes the Lien from the Exceptions list.

    If the Judgment shows up on Dad's credit then he simply disputes it using the normal FCRA dispute mechanisms. They may or may not work, and if they don't then a lawsuit against the CRA would probably get that matter straightened out PDQ.

    Now... on to your Service of process issue.

    I hate to be the harbinger of bad news but if the summons was served on your dad, at an address at which the creditor's lawyer had reason to believe you resided at, the service may be legal. Your dad is a person of legal age and knows you. Many jurisdictions (including Arizona, where I am) allow service on a person not the defendant if the service is made on a person at an address the plaintiff has credible reason to believe the defendant uses or has used as a residence if the non-defendant recipient of the process is of legal age, knows the defendant and has the mental capacity to understand the importance of the process being served.

    Translating to English:

    Your dad is old enough to know the following:

    1: He is not the defendant in that suit
    2. You are
    3. The summons is an important document that you should know about
    4: Where you are and who you are so that the summons can be given to you
    5: How to contact you in order to give it to you.

    I suggest you check with the Court's Rules for service of the Summons to ascertain if this exception to the Personal service issue exists in your jurisdiction.

Share This Page