Credit Card Judgment

Todju · #1 May 30, 2008, 07:43 AM

NY - I received a letter from the enforcement officer, that the court found favor of judgment for the creditor (Capital one)
1. I was never informed of a court date nor did I ever receive a letter on it
2. My credit limit was $600.00 court judgment is for $1629.00..+interest from 04/10/08
again no letter from court until this letter yesterday from Sheriff's office
3. must contact and pay in 20 days or execution will be put on employer to garnish wages of $800.00 a week...I don't make that...and have hardship...If i could pay that much I would have payed the card off...
4. What happen to my rights to be heard in court? How is this Legal ?

progunr · May 30, 2008, 07:57 AM

You should take the notice you received to the court house that sent it.

Ask them for a copy of the proof of service of the original notice or suit.

If they have proof of service, then the judgment stands, unless you want to pay the fee
to appeal the decision. If you plan to do this, you should have a strong defense of the debt, which from the sounds of your question, you do agree you owe the debt. While an appeal would slow down the attempts to collect the judgment, it will only add to the amount you will have to pay if you loose on your appeal.

If there is no proof of service, you need to file a motion to have the judgment dismissed under the grounds that you were not properly notified of the suit.

Also, there are legal limits on garnishment that vary from one jurisdiction to another. The statement from the creditor, giving you an amount of $800.00 could be in violation of the FDCPA if that amount cannot be legally garnished under the limits for your county.

Todju · May 30, 2008, 08:08 AM

If there is no proof of service, you need to file a motion to have the judgment dismissed under the grounds that you were not properly notified of the suit.
1. How often does this happen? no proof of service
2. Can they refile against me again?

progunr · May 30, 2008, 08:13 AM

1-It is not common, but it does happen.

If the judge is in a hurry, he could miss the proof of service, and award the judgment.

2- Yes. Unfortunately, they can refile, and obtain proper service on the second go around.

Todju · May 30, 2008, 08:20 AM

proof of service
What is this...?
How can they hold court with out me being notified ?
and Thank you for your advice

progunr · May 30, 2008, 08:29 AM

Proof of service is a court requirement when you sue someone.

Usually, it is done by some type of process server, such as a constable, or county sheriff.

The server must hand deliver the notice to another individual. If you are married or have other adults living in the home, the notice can usually be left with any adult resident. They can also serve you at your place of employment.

There are also other remedies for individuals who may be difficult to get service, such as they won't answer the door, or various other ways to avoid being served. In these cases, the judge may grant them permission to serve in another way.

These other ways can include, but are not limited to, taping or nailing the notice to the house, sending it via certified mail, return receipt requested, (if you refuse to sign for the certified notice, this can be claimed as proof of service in some jurisdictions) or even posting the notice in a local newspaper or publication in your area. There is no requirement that you actually read or subscribe to that publication, just that it be published.

Without proof of service, there can be no judgment legally awarded.

Todju · May 30, 2008, 08:33 AM

Thank you again, you were a Great Help



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