Judgment- Never Served

Discussion in 'Credit Talk' started by jen, Mar 28, 2001.

  1. jen

    jen Well-Known Member

    Hi all...I have a judgment from an account I cosigned for in 1996. I had never been served nor contacted in any way regarding the delinquincy of the account. I didn't know a thing about it until I looked at my credit report. Now I read in another post that I could file a motion to have this vacated based on the fact that I never was served. Is there a SOL on doing this? (I am in NY) I am willing to pay it...I just want to do what I can to get it off my report. I have read the posts about 5 year reporting on paid judgments for NY but I might be too late as I think it had to have been paid within 5 years from what I read. (might have a little time..gotta re-check the exact date on the judgment) Does anyone have any experience to share about this NY 5 year thing? I appreciate any help you can offer. Thanks.
  2. LKH

    LKH Well-Known Member

    I don't know anything about the NY laws but why would you pay on an invalid judgment? I would get it dismissed, and then make them go through the loops the legal way, if they will. At that point they may just give up on it depending on how much it is.
  3. N'awlins

    N'awlins Guest

    I also have a judgement that only shows on TU (why is that?). I was never served. The judgement is from 05/96. Can I still have it "vacated". Please help!
  4. Cadillac408

    Cadillac408 Well-Known Member

    You can only try to have the judgment vacated on the grounds that you were not served if it's been less than 30 days. That's what I was told and I live in CA. I had a judgment on TransUnion and Experian and it was never on Equifax. I disputed as not mine to both and TransUnino deleted and Experian verified! :(

    Junum is working on this now....
  5. jen

    jen Well-Known Member

    Yeah I am afraid that is probably the case. I am thinking of paying it because I know I am legally responsible as a co-signer. I will try to negotiate with them to take it off in exchange for removal (if I can't get it vacated over not being served) My only other question is, if I pay, will it start the 7 years over on my report? I have read that judgements report 7 years from date of payment. If this is the case I am just screwed because it is already 5 years old. Thanks again for your responses.
  6. Hal

    Hal Well-Known Member

    Jen -
    I would consider pursuing this before paying it. Although you may be responsible for the account legally as a cosigner, I am aware of no state that does not require you be served with notice of the proceeding, either by mail or person. It is not uncommon for a process server to "falsify" service, stating they served you when it never occurred.

    I have seen many judgements vacated due to lack of service, or the fact that the service was by mail to an old address. It is the responsibility of the plaintiff to locate you, and service to an old address is rarely considered sufficient.

    It is much better on your credit profile, to have this removed if you can have the judgement vacated. You can then make arrangements to pay with the creditor. If you pay it without working to have the judgement removed, and then pursue it, it may be considered an Affirmation of the debt and will be much more difficult to prove your point.
  7. LKH

    LKH Well-Known Member

    Hal I completely disagree with your statement that it is not uncommon for a process server to falsify service. In most states, a process server must sign an affidavit of service, filed with the court with the statement "I swear under penalty of perjury" that this affidavit is true. Now, if she wasn't able to be found, a lot of states allow service by publication. They publish the summons in newspapers in both the plaintiffs and defendants jurisdiction. If that was the case it was valid. That being said, if it was me, I would go to the courthouse and look at the file. If it says anything other than service by publication, I would definitely contest it by filing a motion to dismiss or quash service.
  8. jen

    jen Well-Known Member

    Hal thank you so much for the advice. I appreciate the time you took. Sorry if I am being a pain but I do have a couple more questions...if I try to have it vacated based on improper service, is the original creditior notified? They have never attempted to enforce this judgement. I have also heard about the "falsifying service" thing and how do I prove that I in fact never got the papers? Are there records I can look up about the service? Thanks again.
  9. jen

    jen Well-Known Member

    Oops..LKH sorry I missed your post. Ok so I can go look up records about the service. I am going to do that ASAP and see what I have to do to get this in motion.
  10. Lionel

    Lionel Guest

    Jen -

    If you file a notice to vacate the judgement, the orginal creditor is notified so he/she/they can attend the motion hearing. BTW, I'm in CA. If the creditor doesn't show at the hearing, the judgement is vacated. I believe at that point you can have it removed from your reports.

    In my instance, I was not served at the proper address, nor did the creditor try to garnish wages since he won the judgement in 1995. I recently got an agreement in writing that if I settle the debt with the new owner of the company that filed the judgement, they will not answer the motion to vacate. I filed the papers a few weeks ago, and have a hearing on 4/5. Good luck to us both!
  11. Hal

    Hal Well-Known Member

    LKH -

    I suppose it depends on the state. I worked as a child support enforcement officer in California for 5 years and also as a paralegal for three additional years in the private sector.

    In California, at least, process servers generally work at a low wage for an agency that provides this service as the wait time and expense of having an actual Deputy or Constable serve summons is considered too expensive and too long.

    I have worked many cases, child support and civil in which proof of service was offered but was found to be insufficient by the sitting judge. Mail service to old addresses was the most common; failure to identify the party served or ascertain that he/she was over the legal age required for service (varies from state to state), or that the actual defendant still resided at the address happened quite often. In some states a process server can leave the document with any party residing at the address over the age of 13....not difficult to picture how a wrong address and leniency of this requirement could cause a proof of service to be filed.

    In California, most agencies we dealt with paid minimum wage plus a certain fee for each successful service. The process server was bonded, which is obtainable very easily through any insurer if you have no felony conviction. If a civil action were to be filed due to insufficient service, the bonding agency was responsible for any fines.

    In my entire time working with District Attorney's Offices for Child support and in the private sector as a paralegal, I never witnessed anyone prosecuted for perjury after signing a document acknowledging this penalty. The general legal theory is that this can be defended by the 5th amendment, whereas if you are required to swear to something that you know is a crime, you are incriminating yourself.

    The prosecutors and courts also have little interest in prosecuting for perjury in regard to signing a document falsely in civil matters.

    You are correct in regard to states allowing service by publication, but this is generally defensible, and usually limited to specific types of cases. Service by publication is also usually allowed only after all efforts to locate the respondent (defendant) are exhausted.

    ***Jen - Yes you should go to the court clerk in the court this action was filed in and request a copy of the file. In it you will find a "Proof of Service" or "Affidavit of Service" as well as the other judgement documents.

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