Since I am representing myself in court I am a bit lost here. I went to a doctor in 1999. Yes, almost ten years ago and just recently he hired an attorney to collect the 20% my insurance did not pay them. The attorney said all along that I was sent bills since 1999. But actually I have not received bills from this doctor for the 20%. He was sending them to the wrong address. No, I have not moved and have been living at my place for over 22 years. They took out a judgment on me and hence, put a lien on my bank account. That is when I found out about this. I called the NYS Bar Association to see if I could get an attorney and they told me that it would cost me more money than the debt and that I could represent myself and to file an order to vacate the judgment. I did that and had to go to court. When I went to court, the judge called me but the attorney for the other side was not in the court room. He was there but just away. So they put my case aside. Low and behold, the attorney for the other side called my name and he said that he was going to dismiss the judgment and that I would have to come back to court for a trial. I am new to all of this and just took the papers. Now I have to go to court on Tuesday for this trial. Can I file a motion to dismiss this case tomorrow? The statue of limitation has ran out.

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Originally Posted by targa911

Since I am representing myself in court I am a bit lost here. I went to a doctor in 1999. Yes, almost ten years ago and just recently he hired an attorney to collect the 20% my insurance did not pay them. The attorney said all along that I was sent bills since 1999. But actually I have not received bills from this doctor for the 20%. He was sending them to the wrong address. No, I have not moved and have been living at my place for over 22 years. They took out a judgment on me and hence, put a lien on my bank account. That is when I found out about this. I called the NYS Bar Association to see if I could get an attorney and they told me that it would cost me more money than the debt and that I could represent myself and to file an order to vacate the judgment. I did that and had to go to court. When I went to court, the judge called me but the attorney for the other side was not in the court room. He was there but just away. So they put my case aside. Low and behold, the attorney for the other side called my name and he said that he was going to dismiss the judgment and that I would have to come back to court for a trial. I am new to all of this and just took the papers. Now I have to go to court on Tuesday for this trial. Can I file a motion to dismiss this case tomorrow? The statue of limitation has ran out.

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What are your grounds for dismissing the case? Out of Statute?

I am surprised that the NYS Bar gave you advice - I've only seen them recommend that you call the County Bar Association.

I'm a little confused on the procedure - you were never served with the Summons/Complaint; there was a hearing (without you); the Plaintiff had proof of service; the Judgment went against you; you were never notified of the Judgment; your bank account was liened; you filed to vacate the order for some reason; the Attorney on the other side agreed to vacate the Judgment but TOLD you to come back to Court for a hearing?

Were you legally served? What were the papers you were handed? I'm surprised that the Attorney had new papers (presumably a Summons and Complaint) and handed them to you. Did you get the time in which to appear as required by law?

In order to make a motion you have to address whatever was served on you and present your reasons for dismissing the Order.

Something seems to be missing here -

The attorney for the other side supposedly served papers, i.e. the summons, judgment but they did not have my correct address. No, I did not move, they just had the wrong address. So I NEVER received anything they sent in the mail. How I found out about the judgment was because they put a lien on my bank account. That is when I call the NYS Bar Assoc. and they told me what to do. I file an order to vacate the judgment. The papers the other atty gave me was NOT a summons and complaint it was a copy of the affirmation in opposition with a copy of the summons and affidavit of service. I was at the hearing because I initiated it to have the judgment dismissed. The only paper I received - in the mail from the court - was a postcard giving me the date to appear for a trial on 7/29/08 at 9:00 am. I was originally in court in March of 08. The attorney for the other side did not serve me. So in order for me to do a motion to dismiss - well you are right, I don't have any papers to show. I did not get any. So what do I do now?

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Originally Posted by targa911

The attorney for the other side supposedly served papers, i.e. the summons, judgment but they did not have my correct address. No, I did not move, they just had the wrong address. So I NEVER received anything they sent in the mail. How I found out about the judgment was because they put a lien on my bank account. That is when I call the NYS Bar Assoc. and they told me what to do. I file an order to vacate the judgment. The papers the other atty gave me was NOT a summons and complaint it was a copy of the affirmation in opposition with a copy of the summons and affidavit of service. I was at the hearing because I initiated it to have the judgment dismissed. The only paper I received - in the mail from the court - was a postcard giving me the date to appear for a trial on 7/29/08 at 9:00 am. I was originally in court in March of 08. The attorney for the other side did not serve me. So in order for me to do a motion to dismiss - well you are right, I don't have any papers to show. I did not get any. So what do I do now?

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How do they claim you were served in the first place? Service by mail is neither legal nor sufficient.

It sounds more like the Court adjourned the case than it's a new case because you haven't been served and received a postcard from the Court.

It sounds like you moved to dismiss for no service and so the other side is arguing you were served and has given you copies of the Summons and Affidavit of Service.

Move to dismiss again for no service - if you can prove there was no service. If your address is wrong there pretty much is no argument there.

So you prepare your motion - and I hate to see non-Attorneys prepare papers - and go to Court and present your side. Depending on the Court and the size of the debt the Court will be more or less understanding because you do not have legal representation.

$882.00 but the legal fees etc. it could be a little over a thousand. They claimed they served me via mail. I was never served any papers in person other than the copies of the first summons/complaint/judgment. How do I prove there was no service? When the other attorney was showing me the bills that was supposedly sent to me, that is when I noticed that the address was not complete. I mentioned it to him. NOW, they can change all of that with the correct address and make it seem like they had the correct address. See, my street number is - for argument sake - 303 but that is the same street number for a hotel which is where some of my mail goes IF the apt number is missing. NOW, my court date is this Tuesday, I have just tomorrow to do something. What should I be doing to avoid the court appearance?

P.S. I wne t through my files and found a copy of the paper the attorney gave me along with the affirmation. It is one sheet called Decision/Order. And it says the order to show cause is granted "on consent". That the default judgment and all restraining notices are vacaed and the case is restored to the calendar. I guess those papers were just to show that the judgment was vacated and that I would be called back to court. Now can I use this to dismiss?

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Originally Posted by targa911

$882.00 but the the legal fees etc. it could be a lil over a thousand. They claimed they served me via mail. I was never served any papers in person other than the copies of the first summons/complaint/judgment. How do I prove there was no service? When the other attorney was showing me the bills that was supposedly sent to me, that is when I noticed that the address was not complete. I mentioned it to him. NOW, they can change all of that with the correct address and make it seem like they had the correct address. See, my street number is - for argument sake - 303 but that is the same street number for a hotel which is where some of my mail goes IF the apt number is missing. NOW, my court date is this Tuesday, I have just tomorrow to do something. What should I be doing to avoid the court appearance?

P.S. I wne t through my files and found a copy of the paper the attorney gave me along with the affirmation. It is one sheet called Decision/Order. and it says the order to show cause is granted "on consent". That the default judgment and all restraining notices are vacaed and the case is restored to the calendar. I guess those papers were just to show that the judgment was vacated and that I would be called back to court. Now can I use this to dismiss?

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The Affidavit of Service which describes how/when/where you were served is sworn to and filed with the Court within a set number of days or else it expires and the papers have to be served again and filed in a timely fashion - once it's filed with the Court no one can get "back in" and change it. If your address is wrong, it's wrong; if it's not, well, then it's not. That's how you prove it.

Service by mail is NOT legal service in NYS - it was either nail and mail or substitute service followed by mailing or they made a "mistake." You do not have to be served in person, however.

You can't avoid Court; the request for Judgment is going to be re-argued. You need to bring proof why you don't owe the debt or, if you are arguing bad service, that needs to be your argument but, again, they cannot just mail it to the address and once it's filed it cannot be changed. I own a process service company and I have never lost a service challenge, not once, not ever. If the process server was any good he/she would have performed good service and signed a true Affidavit.

The Attorney may very well have served you again when he handed you the papers in Court so now there is legal service.

I don't know why they are pursuing you if the Statute has expired - when was the last payment on the account, the last charge (I realize it's for Doctor's visits) on the account?

Payments on this so called debt. The first I heard of this was when my bank account was slapped with the lien. See, when I went to this new doctor, I asked if he would accept my insurance and he said yes. He got paid by the insurance for the two or three visits I had with him and now his office is trying to collect the 20% the insurance didn't pay. I no longer have any paperwork from the insurance company because a) I no longer have that insurance and b) it's been nearly ten years and I've done a lot of cleaning and throwing away. I guess when I go to court I will just have to say I don't owe the money and there is no way of my proving I don't owe it. I'll say the statute of limitation has ran out and that this case should be dismissed. I am retired, don't work and rely upon my social security to pay my rent and bills. That is not much. So IF they make me pay whatever, it will be small payments IF that.

Judy... I went to court yesterday and it was a total waste for me. The attorney for the other side pulled me aside and asked me to settle. I said no but was curious and asked him how much -he said give me a check for $500.00 then I said no, I'll wait for the judge. When we got to see the judge, he had one little piece of paper. He wanted to reschedule. When I started to speak the judge would not listen because he was not prepared. The judge then gave a date of 10/2 for another trial - I then spoke up and said that it is not my fault he does not have the important papers and that I should not be subjected to coming back. So the judge then scratched that off and still gave a date of 10/2 saying it was final and (If I heard her correctly) she said if I didn't show that the case would be dismissed. I had also a told the judge that I had been extremely ill and have health issues so that is why she said that and if I have a need to cancel to call this attorney and let him know. What does all of this mean? Can I file a motion to dismiss on this?

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Originally Posted by targa911

Judy....I went to court yesterday and it was a total waste for me. The attorney for the other side pulled me aside and asked me to settle. I said no but was curious and asked him how much -he said give me a check for $500.00 then I said no, I'll wait for the judge. When we got to see the judge, he had one lil piece of paper. He wanted to reschedule. when I started to speak the judge would not listen because he was not prepared. The judge then gave a date of 10/2 for another trial - I then spoke up and said that it is not my fault he does not have the important papers and that I should not be subjected to coming back. So the judge then scratched that off and still gave a date of 10/2 saying it was final and (If I heard her correctly) she said if I didn't show that the case would be dismissed. I had also a told the judge that I had been extremely ill and have health issues so that is why she said that and if I have a need to cancel to call this attorney and let him know. What does all of this mean? Can I file a motion to dismiss on this?

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Well, dismissing the case if YOU don't show up makes no sense. You are the Defendant and the practice is that the Plaintiff "wins" if the Defendant does not show up to defend. Otherwise no Defendant would ever show up and no Plaintiff would ever win.

It would make sense that the Judge said if the Plaintiff doesn't show up prepared the case will be dismissed.

And, no, just like inability to pay is not a defense, health is also not a defense - if you cannot appear you are expected to retain an Attorney to appear on your behalf.

It sounds like the Judge is very flexible when it comes to rescheduling - you did protest the rescheduling and apparently the Judge did not want to hear it. I don't know that a Motion would be any more successful but you could certainly try.

I'm not sure that you didn't attend a hearing, you cannot settle the matter and now the Judge has set it down for trial, which is perfectly acceptable and "normal."

I attended a trial. The judge was a little pissed at the attorney as he dragged me to an unprepared trial on his part and he should have known better being a collection attorney. I am surprised she did not dismiss the case right then and there. The attorney also had the nerve to ask me to look up the archive and the judge said to him harshly, NO are you crazy, she doesn't work for you etc. of course I wasn't going to do it. I will go down to the court and see if I can file a motion to dismiss. Thanks for your input.