Hi, all. I've tried to find a thread that addresses my question, but I'm not sure I've got this exactly right: I have a default judgment from a couple of years ago from Asset Acceptance for a Discover account. IF it was entered after the SOL expired (and I am fairly sure it was), can I possibly have it vacated for improper service, and THEN claim it is time-barred? I will check on what constitutes proper service in Illinois, but I'm pretty sure I didn't sign for it, although it is possible my roomate did. I will also get the record from the court next week. Also, under what circumstances could a collection for an account be on your account longer than the original creditor? This is presuming that you have not disputed away the original creditor. *** This also makes me wonder: could you ever allow improper service while you were WITHIN the SOL, allow default judgment, wait until you are OUT of the SOL , have it vacated due to improper service, and then claim it is time barred? It's a little tricky for me, but it does sound interesting....
Erik, Here's an update to what I've learned and been told... I pulled my judgment and most likely service was proper. It is apparently pretty easy in Cook County. It was served by the sheriff and most likely one of my old roommates took it. They don't need a signature. *** LB 59 thinks that NO CA can be on your credit report after the Original Creditor's reporting period expires and I think that's right. In other words, no transfer should have the effect of re-aging the account. *** I still don't know if vacating and then claiming it is time-barred (in my case, two years after judgment was entered) would work. Seems there ought to be a protection for the plaintiff in such cases.
I found this on the web: http://www.paed.uscourts.gov/documents/opinions/97D0848P.HTM According to this case, Data Comm Communications, Inc. vs. The Caramon Group, Inc., by allowing Asset Acceptance Corporation to get a default judgement, waiting until the SOL is up to attempt to vacate the judgement, this would prejudice the plaintiff because of loss of available evidence. But read it for yourself because I'm not that good at reading legalese.
Standard rules of civil procedure give you a year after the default judgment was entered to file a motion to have it vacated for "error" or "fraud" or some other reason like it being time-barred when filed.
What is meant by "time-barred?" I think you must move to vacate a judgment within 2 years OF DISCOVERING IT. I think that's the way the law is worded. I have judgments that are 4 years old but I only discovered it a year ago. I'm going to motion for improper service. What other mistakes should I be looking for? Is there a list somewhere?
You could always move the court to hear your argument, you might get lucky especially if you can find case law to support your motion. I would be careful and make sure your argument has some merit, the other side will most likely seek costs of responding to the motion if the court denies your motion. If you have copies of the court file does it show how process was served?
