This story is kind of long so please bear with me. I recently had a court date regarding two default judgments I wrote about on this board last month. Now I would like someone's opinion on the result of the court proceedings. Previously, I stated that on the first default, the debt wasn't verified even though I sent the CA a verification letter. The second default was that I stopped making payment because I was laid off. Anyway, restraining notices were placed on my three bank accounts and funds were seized from two of the three accounts. The thing is that the funds were seized under the judgment that was NOT verified; no money was seized for the judgment that I actually owed payments. So when I was discussing the matter with the CA's attorney, (he was very curt, by the way) he said he will not recommend that the judgment be removed off of the debt that I stopped by paying on because of case study, (I believe he said) but he said that he would ask the CA to provide proof of debt for the first judgment issued but I had my trump card because I led him to believe that the funds were seized under the second judgment even though he said that he had "no knowledge" of the marshal levy. When we went in front of the judge, she seemed sympathetic towards me and wanted to vacate both judgments especially since I said that I wanted to resume payments again. Then I dropped the bomb - I said that the funds were captured under the first judgment - the one that hasn't been verified. Boy, you should have seen how the CA's attorney's tune changed! The judge was like "maybe you need to go and discuss this situation more". LOL. He immediately called his office and now "acknowledged" that monies were received and that because of that he will obtain proof of debt from the CA and that if it is proven that they will take that as a settlement since the debt is old. (If verified the SOL would be passed already.) Also, I can resume payments on the other debt and that the restraining notices will be removed. Then he stated that he wanted this to be resolved within a week, (Wednesday will make a week and I haven't heard anything yet), and that probably we won't have to return back to court; that it could be worked outside of court. That is the part I'm weary about. A court date was set for July 23rd and I think that the CA's attorney is trying to trick me in to not showing up because now he sees that I'm somewhat educated in consumer rights and he's trying to get me on another default. Should I show up for court anyway? Thanks in advance for your thoughts and opinions.
I think it's better to show up than risk a default. Have you considered suing your bank for letting the funds be seized. A banker once told me that they are always nrevous when accounts get levied because it gets them involved with your problems and they want to stay out of it.
Wow! I can sue the bank?! I was considering that but didn't know if I can legally do it. How can I go about doing it? I was seriously considering showing up because I do think that the CA's attorney was trying to trick me. Does anyone feel that is the story also?
I will definitely show up for the court date but why would the CA's attorney tell me that if we work out our differences outside the court that we would not have to show up for the July court date?
Re: Re: My recent court date You should start reading up on having this default judgement vacated. If they didn't validate, then they shouldn't have sued because they didn't have proof that this was your account. Do you have copies of the validation letter that you sent? Did you send it certified? Of course the attorney isn't going to recommend to the judge that the judgement be vacated. DO NOT GIVE HIM TIME TO PROVIDE VALIDATION NOW! DO NOT LISTEN TO HIM EITHER. That attorney must follow the rules just like everyone else. It seems that you have 3 people involved for possible damages: 1. The Bank 2. The CA 3. The Attorney Also, did you send validation (and have proof of doing so) for both judgements? If so, see if you could file a motion to vacate on BOTH judgements. Do not admit to this attorney that these were your accounts. That's not the issue. The issue is that the attorney, the ca, and the bank didn't follow the rules. HEY EVERYONE, am I making sense here?
Re: Re: My recent court date First, show up for your next court appearance. If you don't, the Court will determine that the judgment amounts are accurate. It seems to me that it might be too late to argue verification. The appropriate time to do that was after you were served with the lawsuit(s). You might well have been able to avoid at least one judgment. As it stands now, you have two judgments waiting to be entered against you and they've already executed on one of them. The best you may hope to get is a set-aside of the one where funds were levied from your account. But if it is set aside (as opposed to vacated), it will only be until there is (a) proof of the actual amount; or (b) an amount that based upon the best available proof. Do you have documenation of payments made?
and he's trying to get me on another default. Should I show up for court anyway? Trilivonel ============== Didn't failure to appear get you into this mess in the first place? Why would you want to repeat the same mistake again? """""""""```~~~```'"""""""""
and he's trying to get me on another default. Should I show up for court anyway? Trilivonel ============== Didn't failure to appear get you into this mess in the first place? Why would you want to repeat the same mistake again? """""""""```~~~```'"""""""""
and he's trying to get me on another default. Should I show up for court anyway? Trilivonel ============== Didn't failure to appear get you into this mess in the first place? Why would you want to repeat the same mistake again? """""""""```~~~```'"""""""""
The first judgment entered (Nov. 2002) was the account that I sent out the verification letter to. That was in July 2002. I never received a response from the CA. The response was that I got a default judgment. I have proof that sent them a letter. I have a copy of the letter and the signed green card from the CA attorney's office. It was signed for three days after I sent it. The second default (entered Dec. 2002), I guess was my fault because I was already in payment status with them and I was laid off. I contacted the CA attorney's office by certified mail but my green was mistakenly thrown away by my daughter. So I guess the CA had every right to persue a judgment but I think their attorneys made a big mistake regarding the order in which they got the judgments. I didn't ask exactly for the second judgment to be vacated; I just asked for the restraining notice to be lifted so that I could start payments again. It is the first judgment that is in question. The CA was so quick to get a speedy judgment against me that I guess they mistakenly got the wrong judgment first. So what should I do now? Their attorney are trying to get proof that the debt is mine. BTW, I countersued on the first judgment for $2000 because of (1) continuing on to get a judgment against me without validation and (2) placing the judgment on my credit report. How can I sue the bank? Weren't they just following procedure? How can I sue the CA's attorney and on what grounds? Another thing - I was never served so that I could defend myself against the default judgments. In NYS, improper service is not a defense against default judgments.
Also, why would I ask for a judge to set aside a judgment if I have proof that I did send out a DV letter? And when the attorney realized the mistake they made, we never went back in front of the judge. We set a mutual date with the judge's clerk for July 23rd.
In NYS, improper service is not a defense against default judgments. Trilivonel ------------------------------ So then what is ?
You can just state your defense. Under a default judgment in NYS, it is assumed that you were served and didn't bother to answer.
Good question. I have no clear answer. It appears the attorney is trying to work things out. I would still plan on attending. I would call the clerk of the court the day before and see if it is still scheduled. Definately CYA.
Re: Re: My recent court date If you countersued, how could the service have been improper? Sewer Service is certainly grounds for a Motion to Vacate, but if you filed an answer and a counterclaim how can you allege improper service? With judgement 2 you may be confusing a Judgement witha Stipulation of Settlement. In a Stip the default clause usually contains a Confession of Judgement. So, on your default they used the Confession to enter the judgement.
Re: Re: My recent court date What is a Confession of Judgment? Update: I still haven't heard from the CA's attorney and it's been two weeks today since I been to court. What should I do? Contact them or wait?
Re: Re: My recent court date What is a Confession of Judgment? Update: I still haven't heard from the CA's attorney and it's been two weeks today since I been to court. What should I do? Contact them or wait?
Re: Re: My recent court date it is assumed that you were served and didn't bother to answer. Trilivonel ===================== What if you didn't answer because you never heard of it so didn't know anything about it.
