I have a levy placed on my bank account (approx $1,700) in there from a collection agency/law firm for a default judgement they receieved for an old debt dated from 1997.

Well I went to civil court and file a motion to vacate and the judge approved it. I served the lawfirm/collection as well as the marshalls office by certified return receipt mail. The court clerk told me my court date is set for July 3rd at 9:30 a.m.

My question is, will the collection agency and marshall's office REMOVE the levy off my bank account till the final court date is done? Or will my account still be frozen?

Technically, don't they have to lift any levies till everything has been settled? Should I call them and tell them to do so or is that a bad idea?

Thanks

Hello Bera:

If the judgment was vacated, it's like there never was a judgment. Given that, YES, they must remove the levy. However, THEY probably won't do it on their own. However, I'll bet if you show the bank the court order, they should remove it themselves.

excon

Thank for the reply excon,

Yes, the court vacated the default judgment and now I have a court date to show up on July 3rd at 9:30am. I have no idea what's going to take place at this court trial. I don't know whether they are going to try and settle, or fight me to the end. I will use the SOL since this debt is from 1997, and also that they never validated the debt.


So I guess I'll call the Levy dept at my bank and fax them the form to release my funds.

Your first stop should have been your bank to present them a copy of the vacate order. I'm not sure if a Fax will be accepted, though, check with them.

What grounds did you use to get the judgement vacated? Prior to your court date you need to file a discovery motion with the collection agency to produce documentation of the debt.

Hi ScottGem.

I got the motion to vacate on the grounds that I haven't lived at the address since October of 2006. That's when my wife and I purchased our home and moved out of my parents house. I had all my mail forwarded to my new address, but some mail got through, and my parents discarded everything as junk mail.

Yes, I'm going to call the Levy Dept at my bank. (Commerce Bank) and let them know of the motion to vacate. I already stopped by direct deposit.

Now, I'm just worried of my court date coming up on July 3rd. Who's going to show up from their side? An attorney representing them? Some jerk collector? Etc? I don't know what's giong to take place.

A representative of the collector MAY show up. This could (and probably will) be an attorney. To reinstate the judgement, they will need to show the validity of the debt and their right to collect it. That's all. That's why you file a Discovery so you can see what they have as proof.

Take The Vacate Order To The Bank Directly, Have Them Make A Copy Of It And Release The Account.

Once Release Remove All Funds.

Well some bad new today.

I called up my bank (Commerce Bank) and they said that the Motion to Vacate means nothing, and it simply means that I have another court date set on July 3rd and when and if the judgment is made in my favor, then would they then release the account.

I was arguing that its not legally possibly, since I still haven't had my day in court, but they said that the motion merely means what it says, that its simply a motion.

I also sent out a certified return receipt VALIDATION letter to the attorney's office handling the case (Mel S. Harris & Associates). Im going to use that as my defense in court.

So basically even if you file a motion to vacate, the bank cannot unfreeze your account till you've gone back to court and have gotten a final judgement.

Either you didn't explain things properly to your bank (or to us) or you need to talk to someone who knows what they are talking about. Its true that a Motion to Vacate means nothing UNTIL ITS GRANTED. If the judge approved (granted) the motion, then its as if the judgement no longer exists. This means that any court orders based on that judgement cease to have weight and are rescinded.

I would take the judge's order and show it to the branch manager at the bank. Tell him to release the account or you will hold them responsible.

However, if all the judge gave you was a hearing on your motion, then the guy at the bank was right. In that case, the burden of proof is now on you to show why the judgement should be vacated. But you said you got the motion vacated on the ground of improper service. So you have to clarify whether you actually were granted the motion or not. What exactly does the document you got from the court say?

Hello again, Bera:

Ahhha. When you said that the judge approved it, I assumed that you won the motion. All the judge approved was a hearing to determine whether he SHOULD set aside the judgment.

Who knows? You still could win. Kick butt.

excon

Yes, the judged signed the "Motion to Vacate", which gave me another court date, which is set for July 3rd. I assumed that since the judge approved the motion, and not the actual judgement that I would still be "innocent until proven guilty" know what I mean? Apparently, until the judgment is actually vacated at court, then could the bank unfreeze the account.

I was hoping they unfreeze my bank account until I had my day in court with those scum bags.


I just got back from the post office as well, and sent out certified return receipt a letter asking them to VALIDATE the debt, and if the statute of limitions haven't expired, etc.
I don't know what to expect in court now? I really want to stick it to these guys.

Real jerk-""s these guys are at Mel Harris. & Assoc.

Thanks for everyone's help--i really appreciate it

DId you type up the order to quash the garnishment for the judge to sign? IF not you need to do so. He vacated what for you?

Type up the order to Quash the garnishment?

No I have not done this? Doesn't the "Motion to Vacate judgment" stop the garnishment?

Isn't that the purpose of getting a motion? Isn't it to hold everything till both parties go back to court? Are you telling me that they can garnish my wages even if I have a motion to vacate pending? My court date is schedule for July 3rd

Since we can't see exactly what the judge signed we aren't clear on what it was. I would go back to the court and ask for specifics.

A Motion to Vacate judgement is basically a request to rescind the judgement as if it never happened. As I said, if granted, then any court orders based on that judgement become null and void. What's not clear is whether the judge did, indeed, grant the motion. If he did then the bank should release the account. If he didn't then the orders stay pending a hearing.

Normally, if a Motion to Vacate is granted, then its uyp to the creditor to refile. So the fact that you were given a court date indicates the motion to vacate wasn't granted. But different courts and judges work differently, so you need to get clarification.

That's correct.

The judge did not approve the motion to vacate judgment YET! He/she simply approved the MOTION, and the clerk gave me a court date, which is set for July 3rd.


My question was, during this "waiting period" (until the July 3rd court date) does the bank have the right to unfreeze the levy placed on my account?

Yes, the creditor received a default judgment (because I initially didn't show up in court), in which they then levied my account, and are now threatening to garnish wages.

So I scooted down to Civil court and put in a motion to vacate judgement with the clerk. The clerk told me that the judge has to actually approve the motion (not the judgment yet), in which he eventually did. Now I have the upcoming court date set.

Thanks again for everyone's help. This site has truly been helpful and resourceful.

I agree with ScottGem. What did the judge grant? If he grant the Mtion To Vacate the Judgment it would be null and void.

See legal definition:

Vacate

To annul, set aside, or render void; to surrender possession or occupancy.

The term vacate has two common usages in the law. With respect to real property, to vacate the premises means to give up possession of the property and leave the area totally devoid of contents. To vacate a court order or judgment means to cancel it or render it null and void.

A person may vacate property voluntarily or involuntarily through the issuance of an eviction order by a court. Rental and lease agreements usually contain a provision concerning when and how the tenant is to vacate the premises at the end of the lease period. Many landlords require renters to make damage deposits, which are refunded after the tenant vacates the property if the landlord determines that no serious damage has been done and that the renter has not left behind personal property that must be disposed of by the landlord. Otherwise, the landlord may keep all or a portion of the deposit.

The other common legal usage of vacate refers to the canceling or rescinding of court judgments and orders. State and federal rules of civil procedure give courts the authority to modify prior judgments. A judgment is the definitive act in a lawsuit that puts an end to the litigation by specifically granting or denying the relief requested by the parties. Once a judgment granting relief has been entered, the plaintiff may legally collect the damages awarded by the court.
A motion to vacate a judgment must be based on a substantial issue. Rule 60(b) of the Federal Rules of Civil Procedure permits a federal court to relieve a party from an adverse judgment on various grounds including fraud, mistake, newly discovered evidence, and satisfaction of the judgment.

Another common ground for seeking a motion to vacate is the failure to provide the person against whom the judgment is entered with sufficient notice of the action. If, for example, the plaintiff claims that after making a good faith effort, he cannot locate the defendant to serve notice of the pending action, the court may permit service by publication in a newspaper. On the day of the hearing, if the defendant does not appear, the court may enter a default judgment in favor of the plaintiff. However, if the defendant discovers the judgment has been filed, she can make a motion to vacate. The defendant might argue that the plaintiff could have easily served the papers personally and given the defendant the opportunity to appear in court and argue the merits of the case.

Courts are generally reluctant to grant a motion to vacate a judgment, especially on the ground of newly discovered evidence. A court will not grant a motion to vacate where the complaining litigant failed to exercise due diligence in securing the evidence in sufficient time to offer it in the original lawsuit. Some jurisdictions do not allow any judgments to be vacated due to newly discovered evidence.

So, if he truly vacated the judgment you would not have a court date.

Something is wrong here, the court can only rule on the motion you put forth, not the motion (as you say) approval itself.

Did you have a hearing on your motion??

OK, I think I see what's going on here. All the judge did was allow you a hearing on your motion to vacate. He did not grant your motion. Therefore, the garnishment orders remain in effect. Whether the creditor can obtain another attachment order until the hearing depends on the court. But the bank was correct in telling you the order needs to remain in effect.

So what YOU need to do is show proof that you were not properly served. You need to show that you left forwarding instructions and that you were not hard to find. If you can prove this at the hearing, then the judge MAY grant your motion. The plaintiff may or may not show up at this hearing. The burden of proof is now on you. If they show up and show they made a diligent effort, then your motion may be denied.

Thanks again for the reply...


Ok, so when I get to court I'm going to say that 1. I was improperly served (since I didn't live at the address since Oct 2006). 2. that the SOL on the debt have expired (this debt is from a credit card back in 1997) and 3. that the debt was never validated? (I sent out a validation letter to them today certified mail)

IF the motion to vacate is granted, do I have to return to court again, or is that final and is the debt permanently wiped off?

Sorry for all the questions, just trying to be as prepared as possible.

Hello again, Bera:

If the judge wipes out the judgment, I'm sure he'll give them another chance to sue you. Then you're going to start all over again. This time you'll be able to defend yourself (if you have a defense), or you'll be able to make an offer of settlement on an amount w/out court costs and legal fees added on.

excon