Hello everyone, I'm new to this site, has a lot of good information, anyway, My friend had an account with First USA, First USA sold the account to a collection attorney (Calvary Investments), Well to make a long story short, Calvary Investments just served him with a summons to get a Judgement and also a Wage Garnishment against him to collect on this money. (the original debt was $5000.00, now it is up to $13,000 - OUCH). He went to court to try to get this Judgment vacated on the grounds that he was not served. He has to appear back in court on Oct. 31, I have read over all of the court papers from these clowns, they have a copy of my friends application when he originally applied for the card and copies of bill notices they mailed to him, but the copies of the bill's have no charges listed, the bill notices only list his name and address and the amount of the balance changes on every bill, that's it. My question is, Is that sufficient validation. I don't think so, BUT HERE IS THE PROBLEM, being that he did not make them validate the debt when he was first contacted by them, can he do it now or is it to late? ALSO, the SOL was up on the debt in May 2002. They claimed they served my friend with a summons on Dec 2001, even though he did not recieve it. So, he is basically fighting them on saying that he was not served, but he should really be making them validate that debt and checking out the SOL. Sorry for the long post, but any advice would be greatly appreciated.
what state is your friend in.... a short answer is that yes, he can request validation at any time and can request it now if he so chooses. but did you say that they had a copy of his signed application? if so that would provide validation of his legal obligation to pay the account. they can be asked to provide copies of the charges billed to the account and to provide an accounting for late fees, and legal fees. if they did not serve him, then he does have grounds to vacate, however did they address at which they claim to have served him the same address as on the billing statements? If he was improperly served, how did he find out about the judgment? Did they provide service by regular mail and or certified mail? Did they also have Sheriff serve (in person) what does the courts copy of the judgement say?
I think your friend is on shaky ground and should get himself a lawyer, I did in a similar situation. If he is making a motion to quash original summons he can re open the case but I don't think he stands a chance against a law firm on his own. They just have too much firepower against a layman. If somebody else here suggests the contrary they are being irresponsible IMO.
You say he was served with a summons for judgement. I'm going to assume that means the judgement hasn't been entered, and that the opposing attorneys are notifying him of an intent to pursue a judgement at the date listed in the summons. If I were he/, I'd get an attorney. For me, $13,000 is just too much money to roll the dice. A procedural error on hispart could end up costing a bunch. Pay for an attorney.... even a mediocre one could negotiate it down, and a good one might get it thrown out due to errors in the serving process, SOL., etc. Good Luck.. Wait, no, you need more than luck.... Good Smarts (get an attoney) Wichita
-- They have a copy of his signed application? If so that would provide validation of his legal obligation to pay the account. Uniondiva ====================== --Signed Apps. and signed contracts do not prove any body owes anything. I have lots of these signed by many people as a result of being in the housing business for 29 Yrs. What do you think my chances of going into court and collecting would be using the signed contracts and applications as my only evidence?????? LB 59
Clipford, Review the threads below and follow the links, answer unionDiva's questions so she can help you, and summons WhyChat. Keep bumping this thread until you get the advice you need and then decide if you need an attorney. Welcome to the Board! Sassy http://consumers.creditnet.com/straighttalk/board/showthread.php?threadid=34590 http://consumers.creditnet.com/straighttalk/board/showthread.php?threadid=33382 http://consumers.creditnet.com/straighttalk/board/showthread.php?threadid=34249
Hi. I do not think that it should matter when he was served with the summons. The fact is NOW it is past the SOL. I am not an attorney, but to little to late for them it seems.
If you go to my website,linked below, under Mis. Legal Stuff you will find the first link is Court Procedures.Go to that site and check your friends State.Or e-mail me with the State & I will e-mail you back some help. Also, when did your friend last pay on the account to the original creditor.If it has been less than a year since the default was filed he can file a motion to have a new hearing.
I read your post a few times. Perhaps I misread it, but it looks to me like you are mixing up two separate issues. The way I read it, you have (1) a question about getting a judgement vacated on technical ground. (2) a question on the debtors rights to demand validation. The two are different matters. For the first issue, getting the judgement vacated, that is an uphill battle. Hire a lawyer. He is going to have to prove to the court that there was a technical violation. This first issue is about your state's legal procedures. If and when that is granted, the lawyer might be able to get the case dismissed based on SOL. It depends on the rules in your state. The second issue you bring up is the right of a debtor to demand validation. In this case, you are dealing with the FDCPA. Note: The two issues have nothing to do with one another. If your friend gets the judgement vacated on technical grounds, and he is served again and can be sued, the plaintiff will probablly use those contracts to ask for a summary judgement. In other words, there will be no court case. All they have to do is prove to the court that they have the right to a judgement and that there is no issues in dispute. The plaintiff would have to argue that they debt is not his in order to get a case. Then what? Tread carefully here. It sounds like vacate, dismiss on SOL might be the best strategy.
