Hello All,

I Currently live in MD however prior to 2001 I lived in NY.

1/2006 I called a small bank in NY I had an account with for years and learned that it had been restrained by a law firm C&S representing a creditor (Spiegel).

I called this firm and found there was a judgment obtained 7/2003 at an old address but I didn't live there because I was in MD since 2001. I wrote a letter to the firm and court as my answer and requesting validation and for it to be vacated. I received a letter from the firm stating they don't have to validate it because they already have a judgment. And the court stated I had to contact the records department.

So I didn't find the time in 2006 to go to court in NY due to personal issues. Any how 1/2007 an account Wachovia that I established in MD was restrained by the same firm for not just the Spiegel account but a Providian account they obtained a judgment for in 2004 Again which I never received because I was served and an old address and I live in MD. Well I spoke with a friend that told me the firm doesn't have the jurisdiction to attach and account that was established outside of NYS based on some sort of case law (Motorola Credit Corp v. Uzan). The firm immediately released the accounts stating that they would close the case since I live in MD but they knew that in 2006 because they responded to my letter and addressed it to my MD address.

In any case I went to court in NY 2/20/07 to request a date and order to show cause/vacate judgment.

I received a call from another firm W&A, Monday, 2/26/07 stating that they now have the account and have had the account since 11/2006. So I sent them a copy of the summons stating and a letter stating that if they have the debt how am I being collected on by C&S they said they would get back to me. I called the creditor these firms are representing and was told they don't have to validate anything because they already have a judgment.

My court date is tomorrow Ive notified and received proof of service for all involved Providian account and Spiegel.

1. This account is not mine.
2. They say this debt is from 1998, I was 18 and couldn't have/didnt have a credit card with a limit of 4K like they are Alleging (worst case if this even were mine).

Once this is vacated which I hope I want to sue C&S for their practices for attaching my account in MD without jurisdiction.

I want to counter sue them they've attached 2 accounts, placed this on my credit report refusing to validate because they had a judgment but the judgment was obtained on bad service I couldn't have come to court because I never knew there was a court date. They are juggling my account from firm to firm.

Need help on A. How to get this vacated tomorrow and what grounds can I sue C&S on civilly (?) since they are the firm obtaining these default judgments on bad service and no proof.

ANY INFO IS GREATLY APPRECIATED!

Motion to vacate lack of jurisdiction, lack of proper service, Motion to vacate for void judgment dueto lack of jurisidction over the defendant from improper service. MOtion to Quash the attachment also

Thanks Mr. Yet - the attachment was already released...


Do you know if any of what the firm has done violates FDCPA? And if I have grounds for civil suit?

Not really did they violate FDCPA, you case is more civil in nature, due to improper service and them obtain a judgment in NY.

In Maryland don't take no for an answer from the court, this judgment is void on the face due to improper service and lack of jurisdiction over you the defendant since you don't live in NY. THe Judge can declare and vacate it and void. As for W & A law firm they are one of the worst in violation of your rights, I have dealt with them before, they are the bottom of barrel scum collectors

Not really did they violate FDCPA, you case is more civil in nature, due to improper service and them obtain a judgment in NY.




Yeah Ive heard about them... and NAF.

SO basically I shouldn't have a problem filing a counter suit, since its civil in nature?

Correct countersuit would be possible, you can also demand the plaintiff appear before the court for you to cross examine, and that they produce the original contract you signed, no contract, no claim.

You are entitled to due process of the law through every step of the process, make them give it to you, even the judge. Deny all, admit nothing unless they comply.

Goggle this 18 USC 242, just may help>

:o Thanks! I suppose if things go wrong I can always reference that to keep things balanced

Add to your motions the following

File Moton to Vacate, lack of due process, Lack of personal jurisdiction, and subject matter jurisdiction.

You have the right to face your accusers, I that did not happen you were denied due process.



Defendant who is unschooled in the law

And ask that the court take Judicial Notice of the enunciation of principles as

Stated in “Haines v. Kerner, 404 U.S. 519,” wherein the court has directed that

Those who are unschooled in law making pleadings and/or complaints shall have

The court look to the substance of the pleadings rather than the form, and also

Hereby makes the attached memorandum, including the related documents

Attached herewith, in the above-referenced case. Furthermore, Defendant hereby

Requests the judge notify them of any sua sponte, rights or remedies they may

Overlook.

Furthermore, Defendant ask that the court take Judicial Notice that statements of

Counsel in Brief or in oral argument are not facts & before the court, only the

Parties statements made under oath, and the PARTIES pleadings, motions, etc

Carry any weight & counsel is not a & “Party to the suit

I got the judgement vacated!

However I still need to look into filing a counter suit and I have a follow up date sometime in July to permanently get this closed/dismissed.

I hate to throw some cold water on you, but I really wouldn't bother with a counter suit. First, you might have a very hard time proving improper service. If you actually did live at the address you were served at, then they could be deemed to have made a good faith effort to serve you. Second, you would have to prove monetary damages to sue for. And I'm not sure how you can do that.

I have the feeling you think you can get punitive damages and a big payday out of this. The likelihood of that happening, especially without a long drawn out case, is very small.

I was told by a friend that I should sue because other than the bad service they attached an account that they didn't have the jurisdiction to.

When they served it I didn't live at that address nor in the state.

Im probably not going to take it any further if things seem to complex but I don't understand why there would be such a problem proving damages when they have had a judgement for an account on my credit that wasn't mine and have attached accounts out of their jurisdiction and obtained this all based on bad service which again I can prove that I didn't live there.

but I dont understand why there would be such a problem proving damages Hello Just:

You don't? Ok, how much did this episode cost you??

If you don't have a number that is verifiable, you've just found out why there's a problem proving damages. Your expenses don't count.

excon

Congrats on vacating the judgment.

I agree with both Yet and excon. Congrats on getting the judgement vacated, but what did this cost you? Were you refused credit because of it? Did you have to accept a higher interest rate on a loan. Did you lose a job? You have to show that you were hurt, monetarily by their actions.

Hello Just:

You don't? Ok, how much did this episode cost you????

If you don't have a number that is verifiable, you've just found out why there's a problem proving damages. Your expenses don't count.

excon


Okay... so Lost wages and deformation of character don't count? Ive seen things online where people were awarded monies for damages etc. And yes this affected my credit rating and Ive been turned down for many of things...

Okay...so Lost wages and deformation of character dont count? Ive seen things online where people were awarded monies for damages etc. And yes this affected my credit rating and Ive been turned down for many of things...


That is what you will have to prove in court if you decide to counter suit, now you must file the suit in the county and state of whom you will file the suit.

Where will be the jurisdiction of the party you suit?

What will it cost to travel there, or are they in Maryland?

That is what you will have to prove in court if you decide to counter suit, now you must file the suit in the county and state of whom you will file the suit.

Where will be the jurisdiction of the party you suit?

What will it cost to travel there, or are they in Maryland?


I would have to file in Nassau County (Queens, NY). I live in MD so Ive had to take off work and drive to NY at least twice to get this court date to get this vacated.

Im not looking for like 10K or anything...

Like I said you will have to prove the damages. Damages due to defamation of character are hard to prove. But you can include expenses incurred fighting the judgement. Being turned down is not a damage. How the turndown cost you money might be more provable.

You need to sit down and add up all the losses you can prove to see if its worth pursuing.

Like I said you will have to prove the damages. Damages due to defamation of character are hard to prove. But you can include expenses incurred fighting the judgement. Being turned down is not a damage. How the turndown cost you money might be more provable.

You need to sit down and add up all the losses you can prove to see if its worth pursuing.


Yeah that seems to be a bit much. I might just take me vacated judgement and cut my losses. It was just said to me as if it were so easy and hassle free... but obviously that's not the case.

I would have to file in Nassau County (Queens, NY). I live in MD so Ive had to take off of work and drive to NY at least twice to get this court date to get this vacated.

Im not looking for like 10K or anything....


You will have to file the suit in NY, travel there, and hope you win against them, you will have to understand the court procedure in NY since they would have jurisdiction over the matter.

Hello again, Just:

You're getting it. There are two questions involved in a law suit; 1) did somebody's actions damage somebody else, and 2) if they did, how much did it cost them?

You'll win the first part - no question. However, you're going to need to quantify and verify how much it ACTUALLY did cost you. As ScottGem pointed out, that's no easy matter.

excon

Ahoy... Thank goodness I didn't have an exoneration party!

Because yesterday I received in the mail a motion in opposition to my order to show cause. They said basically that they shouldn't have to respond to my order to show cause because "my request is untimley" and that I was served.

But here is the thing. I didn't know about the judgement which was awarded in 7/2003 until 1/2006 (because I was never served) and I really was never watching my credit report. So I sent them a letter (pro se answer) and requested validation and I sent this letter to court house as well. Now I was (and still am) living in Maryland so this was sent to NY. They responded stating they wouldn't honor my pro se answer because it was untimely and so was my request for validation and to contact them to make "arrangements". The court responded saying that I had to call their records dept. I called the records dept and was advised I had to physically come to NY and it couldn't be done through mail.
Well during that time 1/2006-1/2007 I was unable to come to NY as I am a single mother and had just started working at two places (ex. I had a job in Jan - no days off allowed until 90 days, after that 90 days I left and went to another company had to wait 90 days, then started another job had to wait 90 days) and that's not b.s I can really prove that.

So basically my judgment was vacated and case placed back on the calendar. And now the firm is responding to my order to show cause stating that they shouldn't have to show me anything because its to late!

That's INSANE! If you can't prove I owe a debt why should I pay it? They also attached a copy of the original summons and affidavit from the process server where they attempted the bad address 3 times and then stuck it to the door and verified with a neighbor (who they called Tammy "Doe") that I lived there. In NY state attaching it to the door is considered service. But my rational is that it still isn't good service if the person doesn't live there. Yes, you served it to that address but you don't even know who lives there because in the 3 attempts you made no one was there.

And in 2003 I live in Jersey City with my beau.

Will the judge really disallow my order to show cause based on their grounds stated?

Also when we vacated the order they wanted me to sign stating that I would disregard the fact that I was not served. And I refused so they omitted it and now I see why because they were/are trying to come back to me.

THIS IS WHY I WANT TO SUE THEM. This is ridiculous. Ive asked 1/06 to validate and they said it was untimely now they are saying because I waited from 1/06-1/07 its untimely. So they feel that I should never be given proof of this amount they say I owe? Its like 5K which they say started as 3K in 99' and I guess gained interest. But I was 19 in 99' and they said the debt was from 98' and went delinquent in 99' but I was 18 in 98' and I never had a credit card or credit account with a 3k limit at 18 or 19. Hell, I don't have a credit card with a 3k limit now! Lol

Send the attorney a discovery, request the original contract, prove of service alleged, name and address of plaintiff, etc. SInce they are contesting the vacate order you are permitted discovery

Which court vacate the judgment?

As a Pro se you can deny the NY court ever had jurisdiction of you since no proper service was ever done.

Do web search on Void Judgment, (google) this has a lot of information that will help you.

Send the the attorney a discovery, request the original contract, prove of service alleged, name and address of plaintiff, etc. SInce they are contesting the vacate order you are permitted discovery

Which court vacate the judgment?

As a Pro se you can deny the NY court ever had jurisdiction of you since no proper service was ever done.

Do web search on Void Judgment, (google) this has alot of information that will help you.

How can I prove I didn't live in NY. Can I have my ex write a letter and have it notarized? I moved into his house so my name wasn't on anything.

I will Google - I live by Google that's how I found you guys :p

Cancel check for rent , utitily bill, phone bills anything with the different address. Covering the time since you moved.

I don't know if I have any of those things but I will look because I have to have something - I even have a (valid) NY driver license with a NJ address.

Send the the attorney a discovery, request the original contract, prove of service alleged, name and address of plaintiff, etc. SInce they are contesting the vacate order you are permitted discovery

Which court vacate the judgment?

As a Pro se you can deny the NY court ever had jurisdiction of you since no proper service was ever done.

Do web search on Void Judgment, (google) this has alot of information that will help you.

This is what I found under Void Judgement:
As a general rule, a judgment or order is valid (i.e. not void) when the following elements are present: (1) the court has subject matter jurisdiction; [5] (2) the court has personal jurisdiction; [6] and (3) adequate notice has been afforded the affected persons.

This is what I found under Void Judgement:
As a general rule, a judgment or order is valid (i.e., not void) when the following elements are present: (1) the court has subject matter jurisdiction; [5] (2) the court has personal jurisdiction; [6] and (3) adequate notice has been afforded the affected persons.

Court lack subject matter and personal jurisdiction over the defendant due to improper service or no service.

For the court to have jurisdiction both parties must be present in the court.
Without out this the judgment is void.

How can I defend the fact that after I found out about the judgement 1/6/06 (supported by a letter I sent to the court and firm) and didn't present motion to show cause or request to vacate until 2/07.They said my SOL was expired apparenty in NY the SOL for responding after you find out about the judgement is 1 year. I responded just a little over a year later to court...

In the stipluation for vacating the judgement to put it back on the calendar the lawyer wanted me to sat they I waive all jurisdictional defenses... I refused and they scratched it out.

Does that mean I have a jurisdictional defense?

I read something's about personal and subject matter jurisdiction but I don't quite understand it...

Simply because the NY court lacks subject matter and personal jurisdiction over you.

Simply put, without you droppping that defense the court really has to right to hear the case.

Interesting. The attorneys office sent me this document "opposition of my motion to show cause" and it was detailed about me being served (via a notice to a door I didn't live at and they can't prove I did) and the fact that I knew about the judgement 1/2006 and didn't request the order to show cause until 2/2007. So do I need to prepare some sort of document with my defenses as well?

You will need to prepare your defense. But how you respond to that notice depends on its nature. It could just be a copy of a filing with the court of their intent to fight your Show Cause motion. Check with the court as to how you need to respond.

You will need to prepare your defense. But how you respond to that notice depends on its nature. It could just be a copy of a filing with the court of their intent to fight your Show Cause motion. Check with the court as to how you need to respond.


That's exactly what it was a copy of their filing with the court of their intent to fight my motion

Its probably just a pretrial motion and doesn't require a response from you. But make sure with the court.

Its probably just a pretrial motion and doesn't require a response from you. But make sure with the court.

I acutally did my answer that day (I had 20 days). But from what they filed I feel so unprepared.

My friend said to keep it simple I was never served and this isn't my account. Validate the debt etc. But Im afraid it won't be enough...

That's their game, to imtimidate you with legal jargon and make you feel that you as a lowly layman, can't fight them and their law degrees. But that's wehat Small Claims court is for. Its for the lowly laymen.

I am NOT an attorney but it sounds like they violated the 4 and 15th ammdments lack of due process and filing a frivouls lawsuit against you. How bad and for how long have they been dinging your credit reports??