I was served by a collection attorney in '05 for an old CC debt. I did a lot of research and answered pro se asking for discovery. interrogatories etc. I thought they had to respond to me but didn't hear anything back from them and with no experience, was outmaneuvered as the next thing I found out, my wages had been garnished. This doesn't seem right but it must be legal for them not to answer me and have no notice of the next court date. Long story short, in '06 my husband was diagnosed with terminal cancer. My job involved travel and when I needed to stay home to take care of him, I was fired in Jan of '07. He passed away two weeks later. No job, nothing to garnish but the attorney went back to court this past year and I have to go to court for a debtors exam in March unless I can work it out with the CA ahead of time. I still have no job but do have a home and 2 cars paid in full. No stocks, no 401K - just a bit of savings to live on. I obviously messed up doing this pro se to start with and am scared to death. I want to protect what little I do have and don't know how. Now the other issues I think may have some merit: I've read various posts all over the web that say you have no chance of getting an old judgment vacated unless you weren't served properly. I assume that since I responded to the original lawsuit, I have no grounds to claim service was somehow improper? On the other hand, I've also read that a court will set aside a judgment if you can show that the judgment was entered in error, that you had good reason for failing to respond to the summons, and/or that there is a good chance that you will prevail if the judgment is set aside and the case reopened. In other words, the court is allowed to relax the requirement of due diligence where equity and good conscience require it. This CA is a known scumbag collector (Charlie Litow in Iowa). I'm sure he had no real documentation of the debt and would have lost the case had I known the ins and outs of the court process. Would the details I've posted above be grounds for a court to vacate? Finally, in my research, I came across a very interesting case: Cotton vs. Asset Acceptance for FDCPA violations. Cotton was seeking review of his state court default judgment and won. Cottonâ??s federal lawsuit does not target the state courtâ??s decision, but instead targets Asset Acceptanceâ??s alleged practice of filing and threatening to file lawsuits conduct in time-barred FDCPA claims. United States District Court, Northern District of Illinois I'm not able to post a link to the case because I'm new here but PM me if you'd like the link. This case gives me hope that one could bring a federal case against any CA that has violated the FDCPA even though they have already won a judgment against you. Your thoughts? Thanks much for any assistance!"
The Cotton court referred to that issue and discussed Rule 12(b) at some length Au Contrare, He was specifically not seeking review of his state court judgment. Had he been doing that Asset Acceptance could have won dismissal on the merits of that argument based on Rooker-Feldman and Res Judicata. Yes, and that is contradictory what you said earlier. Quite so. Cotton isn't the only such case by any means. There are many more. Federal courts don't have the power to overturn the decisions of state court judges except in very unusual circumstances. As you stated, Cotton wasn't asking the court to overturn the state court case nor was he making any claim that his injuries arose as a result of the state court judgment. The injury Cotton sustained happened at the time of filing of the state court case and or prior to the filing in the state court case. That is different than what you apparently wish to complain about but even so you are not precluded from bringing a federal case for violations that occurred during the course of the state court case. Cases have been filed and won in federal court because the plaintiff's attorney in state court actions violated some portion of FDCPA during trial. Attorneys use of affidavits containing false and misleading information or statements have been successfully prosecuted in federal courts in multiple cases. Other cases have been won because the plaintiff's attorney (as in Cotton) misrepresented the legal status of the debt. Others have been won for misrepresenting the characteristics of the debt. I won't attempt to tell you whether I think you can win or not, but will only tell you may very well be able to bring a case in federal court.
Hey cap1sucks! Ah yes, typo on my end. My statement should have read "Cotton was NOT seeking review of his state court default judgment." You mention there are many cases similar to Cotton. Can you give me some direction on finding some that you are aware of? I am particularly trying to find cases that include a judgement that is 2 or more years old. I searched long and hard before I ever turned up Cotton but that may just be because of my very limited knowledge in this arena. Thanks for your response!
No, that isn't a simple thing to do because most of them I know of were settled out of court and therefore no opinion was ever issued. To make it more difficult just about all of them carry non-disclosure agreements so the specifics are not available unless you happen to know the who the plaintiffs were. I happen to know quite a few but not all would meet the requirement that judgment was entered prior to the filing of the federal case. Pro Se litigants who really know what they are doing start out early in the game, at the first receipt of a dunning letter or even before that with the first phone call. They keep careful records of phone calls and often have all calls on tape or on digital voice recorders which they carry with them wherever they go. At the very least they have the calls written down in a sort of diary. They are careful to get their validation demands in the mail in a timely manner. They usually have a carefully planned series of letters that they send out at specified times. They wait until the debt collector hires an attorney then sue the debt collector in federal court. They don't wait for a judgment to be put against them. Then they start in on the plaintiff's attorney. They have a specialized packet they file with the court and send to the plaintiff's attorney. What they file with the court varies from case to case but still all follow a general pattern that is pretty similar. They expect to lose in county court and usually do but win in federal court. They deliberately plan to win twice for every debt and sometimes more often than that. But their cases almost never get into print or on the internet. One such person started out about 6 years ago. He got hit by a debt collector trying to collect Mexican income taxes. He got them on 8 violations but the case never went to trial. The debt collector gave up before the case went to court. He has been in federal court 5 or 6 times now and won every time. He claims to have won more than $30,000 out of all his cases but that is peanuts compared to what his employment brings him in yearly. He has never hired a lawyer to help him. He knows far more law now than the lawyers do but when he started out he was as ignorant as anybody else. There are a great many people who are much like that man but most of them had to lose in district courts before they even thought of doing what they do now. Of course, they didn't learn how to do all that off this or any other forum such as this one although they probably do pick up various tips and tricks from boards, news groups, e-groups, seminars, wikis and blogs or wherever. One of their most potent learning tools are in using RSS feeds. That's why I use RSS feeds so extensively. I can pick over vast amounts of information in only a few minutes a day. They are easy to set up and easy to use. Why? That makes it even harder to find cases to study. The 7th Circuit and 9th Circuit are probably the most lucrative courts to follow, especially the 7th Circuit Court of Appeals in Indiana. A couple of cases that come to mind quickly from the 7th is Spears v. Brennan and Fields v. Wilburlawfirm but I don't remember whether judgment had first been entered by lower courts or not. But why the requirement that they be at least 2 years old? That makes it even tougher to quote you cases to refer to. That's probably not the reason you had to search long and hard to find any. You not only need to learn to use RSS feeds and which feeds to watch but you also need to learn how to use Pacer, Lexis Law, Cornell University Law Library as well as your local law libraries but feeds from a wide range of blogs such as SCOTUS, May it Please the court, livinglies, Oregon Consumer Attorney, Michigan debt collector, Alabama Consumer Law, Supreme Court of Texas, and dozens more that are out there. You need to learn how to take forums such as this one that don't have RSS feeds and make RSS feeds for them. You need to learn how to take keywords and turn them into RSS feeds. Keywords like law, FDCPA, FCRA, TILA, HOEPA, RESPA, and any keywords or keyword phrases and turn them into RSS feeds. Learn to search one time and one time only then make the search engines let you know when they find some article or news release so you don't have to do all that searching. Then once you know how to do all those things learn how to use Yahoo Pipes (free) to aggregate (bundle) bunches of feeds into just one feed and then feed them into Thunderbird (a free program) so you don't have to spend the rest of your life looking for a few tidbits of usable information. By now I must have your poor head spinning and by now you must think I'm some kind of genius to be able to do all of that but that isn't even close to the truth. I'm no genius and you don't have to be either. All of those things are out there for anybody to learn about and use and it is all for free. You just have to find it, follow a very few basic steps to set each thing up and make it work. New tools to do those things are being invented faster than most people can even imagine and the web is getting easier and easier to use with each passing day. So how do I learn about all those new tools as fast as they are invented or even before they are actually ready for the public to use? Yep! RSS feeds again. There are lots of web pages and blogs that publish all the new stuff out there. Quit beating your head against stone walls and learn how to do it the easy way. I've got to go get on a nationwide conference call now where I hope to learn some new stuff. Maybe I will learn something and maybe I won't.
