What can I do to vacate a judgment that was filed after the SOL for the debt expired in my state (Florida)? In other words, the SOL expired in December and a judgment was entered in early March. How do I go about getting the judgment removed?
you would have to go to the court that rendered the judgment with some kind of compelling evidence why the judgment should be vacated. Were you served properly with the summons? Did you answer the summons? Did you show up and dispute the allegations? The SOL is only a defense to a lawsuit - it won't prevent one being filed or prevent a judgment being granted
If the actual lawsuit is filed after the SOL, is this considered compelling evidence to vacate a judgment?
Passage of the SOL is only a defense to a lawsuit. There is nothing to prevent the creditor from filing a lawsuit at any time if the contract is in default
Improper service of a summons, etc. are grounds for a judgment to be vacated. Not showing up to defend against a lawsuit...and then showing up to protest it afterwards...???
Thanks for your help. I understand that the SOL is only a "defense" to a lawsuit. However, what is the point of a SOL in the first place if it can not vacate a judgment that was based on a lawsuit filed AFTER the SOL has run out? Regardless of whether or not the lawsuit was answered or the paperwork properly served, etc., if it was filed after the SOL had run out, how can any ensuing judgment be enforceable? If the SOL has expired before the lawsuit was filed, why can't a judgment be vacated based on this fact alone? It appears that the SOL either makes a lawsuit against you enforceable or it doesn't . Thanks
The courts don't know or care if the SOL has run out if you don't show up after being served properly. The plaintiff only needs to show credible evidence that you owe the debt to get a judgement, then. The SOL does not mean they cannot file a lawsuit, but it would be a violation if they did AFTER you notified them the debt is time-barred and can show proof to the court. But as most people will tell you not answering a summons is the worst thing you can do. If you file a motion to vacate judgement, the SOL as defense tactic may not work, because you essentially waived your rights to it when you did not answer the complaint. That I believe is what PD is saying. Some states and Judges may show leniency towards that defense depending upon the circumstances, but many will not unless you can demonstrate unusual circumstances which may have prevented you from answering to the court.
SOL is an affirmative defense that has to be raised in your answer to a suit or you lose it. It doesn't mean a judgment can't be entered or that you can't be sued, it only means that had you responded to the court in a timely manner, you could have used the expiration of your state's SOL as an affirmative defense (you still have to prove it). Sassy
What is the best way to prove that the SOL has run out? Are copies of credit reports showing the first date of delinquency enough for most courts? How can I prove that I wasn't properly served? I never received anything regarding a lawsuit. How do I show the court that I received nothing? In other words, what do I tell the judge if the creditor shows the copy of a letter sent to me that was never received.
If you don't have anything and want to strategize and raise it, ask for validation first and maybe you'll get lucky and they'll send you the information that will confirm it for you. Then, you could let them know it's expired, based on their own documentation. Since there's a judgment, they only have to send you a copy of it to meet the validation requirement, maybe they'll bite if you ask for more, it's worked for some, depends on how smart they are, which isn't saying much at all LOL. You can't prove that you weren't served, you'd have nothing. But you can assert that you weren't and ask for documentation showing that they met the service requirements for your state. In most states, just mailing a letter isn't enough, by regular mail that is, it would have also had to have been posted somewhere or published or show that they'd attempted service. Here's a link for determining the requirements of service in your state: http://www.1-800-serve-em.com/servicemap.html Sassy
The rules for service vary by jurisdiction. If you never received anything by mail, is it because you may have moved? There are rules for "alternate service" including publication in the local newspaper. You should go to the courthouse and get a copy of the case. That will show how the plaintiff served your summons. You can go from there to argue whether it was proper service or not
