Judgment - How Best to Proceed?

Hi all,

I've been searching quite diligently on how best to proceed in vacating a judgment. I didn't want to post a redundant question, so I figured I'd supply a few more details so that I can get the BEST way to proceed for my situation. The legal process makes me a bit nervous, and I want to make sure I'm making the right steps from the start. Please pardon the length!

Last year, my mother authorized me to open a CL with her as co-signer (thanks Mum). I charged a few things ($450), and then thought the better of accruing too large a balance, so I stopped and began to make payments on it.

Well, my parents refinanced their mortgage last year, and one of the things that were appearing as paid late was this very card. She was very panicked about it because whomever their loan counselor was made it clear that it needed to be corrected or removed, etc. for them to finalize things/close on it. I didn't want her to worry, so I asked the CC company to issue us some sort of a document that would acknowledge the debt as solely mine so that she could present the document to her loan counselor and get things rolling again.

What was interesting about this as I recall, was that the department that handled it was the Fraud deparment. Other than that, at the moment I do not have that document available that I signed, but it basically released my mother of obligation for the balance, and made me fully liable. I had to have it notarized and then I faxed it back to the CC company. And so Mum was happy.

Then things turn sour, because for personal reasons I could no longer stay at my parent's home. I moved out of state and just recently moved back in June (in-state (NY), not to my parent's home). Not to ramble on, but things have been so topsy turvy that the last thing on my mind was that debt (I know, BAD me).

When I pulled my most recent EXP report, it lists quite boldly that I have a judgment against me for that very debt plus lawyer's fees. However, from my reading, I do know that I may not have been properly 'served'. The summons went to my parent's home. Still, I do know too, or am pretty sure that they still have that document I signed which clearly ties me to it.

A few cold facts:

1. The account was my mother as primary, me, authorized account user.

2. I believe my mother may have a copy of the document we signed. I did have a copy, but things get lost in the black hole of relocating.

3. I have a copy of the summons. Dear Mum doesn't open my mail and so I still don't think she knows about this. It is dated March 26, 2003, however, the letter that accompanied it was dated April 23, 2003, if that means anything.

4. I also already acquired the form to vacate the judgment.

So I guess I am asking:

1. Am I a candidate to have the judgment vacated successfully?

2. Are there any other grounds I might be eligible to have the judgment vacated on other than not being properly served?

3. Is it true that once the case is re-established, that if the CA lawyers do not show, a default judgment is entered on my side, and it is then thrown out?

4. What explantion would it be best to give in my motion to vacate, if other than not being properly served? Might that document I signed be already recorded somehow in the case's paperwork, even if the lawyers for the CA don't show?

5. If I do get the judgment vacated successfully, and demand validation from the CA, and they show me that document, what then?

I don't mind at all negotiating some type of payment, I simply want to try and make sure that it can be removed through this process from my credit reports.

Thank you so much for getting this far, and thanks for any advice you may have.

----------

 

<bump>

 

<BUMP>

 

Why Chat,

Thank you so much for your insight. I followed your advice and looked up the rules of service for New York. There of course was a great deal more relevant information than I'm posting, but the gist of it is (drum roll please):

Rule 317. Defense by person to whom summons not personally delivered. A person served with a summons other than by personal delivery to him or to his agent for service designated under rule 318, within or without the state, who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense. If the defense is successful, the court may direct and enforce restitution in the same manner and subject to the same conditions as where a judgment is reversed or modified on appeal. This section does not apply to an action for divorce, annulment or partition.

So yes, I can file for 'Defendant Vacating Plaintiff's Judgement' because ...

__________

 

1. When served by mail, the plaintiff should have submitted me the summons, two copies of a 'statement of service by mail and acknowledgement of receipt' in this form.

2. The 'statement of service by mail and acknowledgement of receipt' should have been in the following form:

STATEMENT OF SERVICE BY MAIL

To: (Insert the name and address of the person or entity to be served.)
The enclosed summons and complaint, or summons and notice, or notice of petition and petition (strike out inapplicable terms) are served pursuant to section 312-a of the Civil Practice Law and Rules.
To avoid being charged with the expense of service upon you, you must sign, date and complete the acknowledgement part of this form and mail or deliver one copy of the completed form to the sender within thirty (30) days from the date you receive it. You should keep a copy for your records or your attorney. If you wish to consult an attorney, you should do so as soon as possible before the thirty (30) days expire.
If you do not complete and return the form to the sender within thirty (30) days, you (or the party on whose behalf you are being served) will be required to pay expenses incurred in serving the summons and complaint, or summons and notice, or notice of petition and petition in any other manner permitted by law, and the cost of such service as permitted by law will be entered as a judgment against you.
If you have received a complaint or petition with this statement, the return of this statement and acknowledgement does not relieve you of the necessity to answer the complaint or petition. The time to answer expires twenty (20) days after the day you mail or deliver this form to the sender. If you wish to consult with an attorney, you should do so as soon as possible before the twenty (20) days expire.
If you are served on behalf of a corporation, unincorporated association, partnership or other entity, you must indicate under your signature your relationship to the entity. If you are served on behalf of another person and you are authorized to receive process, you must indicate under your signature your authority.
It is a crime to forge a signature or to make a false entry on this statement or on the acknowledgement.
B. ACKNOWLEDGEMENT OF RECEIPT OF SUMMONS AND COMPLAINT OR SUMMONS AND NOTICE
OR NOTICE OF PETITION AND PETITION
I received a summons and complaint, or summons and notice, or notice of petition and petition (strike out inapplicable terms) in the above- captioned matter at (insert address).
PLEASE CHECK ONE OF THE FOLLOWING; IF 2 IS CHECKED, COMPLETE AS INDICATED:
1. / / I am not in military service.
2. / / I am in military service, and my rank, serial number and branch of service are as follows:
Rank:________________________________
Serial number:_________________________
Branch of Service:______________________
TO BE COMPLETED REGARDLESS OF MILITARY STATUS:
Date:_________________________________________
(Date this Acknowledgement is executed)
I affirm the above as true under penalty of perjury.
__________________________________
Signature
__________________________________
Print name
__________________________________
Name of Defendant for which acting
__________________________________
Position with Defendant for which acting (i.e., officer, attorney, etc.)
PLEASE COMPLETE ALL BLANKS INCLUDING DATES
BY MAIL

3. The letter I received along with a copy of the summons was:

'Dear Madame Walker,
Enclosed you will find a copy of the summons and complaint in the above entitled action being sent to you pursuant to New York State law.

Very truly yours,
Me, Myself & I, P.C.'.

4. Also 'service is complete on the date the signed acknowledgement of receipt is mailed or delivered to the sender. The signed acknowledgement of receipt shall constitute proof of service.' Sounds kinda like CMRRR?

__________

 

<bump>