I know from reading all the info here that "out of SOL" is an affirmative defense for a suit case -- but fast forward to my situation --

I have a Default Judgement because I didn't show up for the case (stuck my head in the sand). I didn't even know about SOL and such then. Anyway, the collection agency/lawyer who bought the charged off cc debt is the one who sued and got the Default Judgement. What's crazy is that it was out of SOL when they filed the suit.

Can I now request the court vacate the Judgement on grounds that it was SOL before they filed? And how much time do I have to do this after the Default Judgement was entered?:confused:

Thanks for all your help!


And/Or would I be able to file suit against them citing violation of FDCPA 807 (2)(A) they misrepresented (lied about) the facts or status of the account?

You can try filing a motion with the court that issued the judgment to vacate on the grounds that the debt was not valid. It will depend on the court as to whether you will be successful or not. Unless you can prove that you were unaware of the suit or hearing, the court may deny the motion on the grounds that you had your chance to a hearing and you let it go.


As to filing suit against them, again, you can file any suit you want, but I doubt if you will be successful. What proof do you have that they lied or misrepresented facts? The fact that you think the SOL had expired doesn't make it so. A plaintiff can file suit with a minimum of facts, that they will have to prove when they get to court. But if you don't show, then they don't have to present anything, they get their judgment by default.

I have proof that they "re-aged" the account. It's showing on my CR as "open", etc. The also just levied my bank account and garnered my wages through my employer.

I want to file a motion to realease the writ of garnishment (or whatever it's called) too.

All of these subsequent actions (default judgement, wage garn. bank acct. levy,. )are based on a lie they told to collect this debt by suit.

They knowingly re-aged the debt and represented that info to the court to affect a Judgement. And me like a dum-dum didn't show up and made it uber easy for them.

Hello d:

Even if what you say is true, the place to have argued THAT issue WAS in court. In order to be successful in setting aside the judgment, you're going to have to find something they did PROCEDURALLY wrong.

You can't bring up arguments on ANY appeal that you could have made, but chose not to. Appeals are NOT do-overs. You had ONCE chance, and you didn't take it.

excon

Thank you, Scott and Ex for your answers! I appreciate your taking the time to respond.

I've been told that I should sue them now for the FDCPA violation (and to also consult naca.org for a lawyer.

Was hoping as a result of my lawsuit vs. them to eventually get their default judge. Against me vacated/voided/set aside...

Thanks again...

Hello again, d:

Who told you to sue? Hire that guy. What specific collection practice did they violate? Can you PROVE it? And, that stuff is the EASY part.

You can find all sorts of lawyer who will represent you - FOR A FEE. You're not going to find a free lawyer to take this on. I also don't know what the National Association for Campus Activities will do to help.

excon

ROTFL!
Ooops, I meant naca.NET!

And/Or would I be able to file suit against them citing violation of FDCPA 807 (2)(A) they misrepresented (lied about) the facts or status of the account?

That's the one that talks about making false representations, etc. to collect the debt. I still assert that they made false representations about the age of the loan to get around the true SOL.

BTW, it wasn't a lawyer who advised me, it was a person who makes his living advising folks like me.

He started on a mission to clean up his own CR some years back, was successful with that (through lots of trial and error) and wound up the advocate-of-sorts he is now.

Again, I question whether you have sufficient proof that they violated FDCPA 807 (2)(A). SOL can be a tricky issue. Just because it may appear on your credit report that it was re aged, doesn't mean something illegal was done.

I agree with excon, that you can't get a do-over, but sometimes you can get a default judgment vacated by claiming you did not understand the legal ramifications.

You will not get the writ of execution released unless you can get the judgment vacated. So that should be your tactic.

I would definitely wait to file suit against them for misrepresentation until you see what happens with your motion to vacate and, until you can consult an attorney who can advise whether you have enough proof to file such a suit.

Quote:

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Originally Posted by ScottGem

Again, I question whether you have sufficient proof that they violated FDCPA 807 (2)(A). SOL can be a tricky issue. Just because it may appear on your credit report that it was re aged, doesn't mean something illegal was done.

I agree with excon, that you can't get a do-over, but sometimes you can get a default judgment vacated by claiming you did not understand the legal ramifications.

You will not get the writ of execution released unless you can get the judgment vacated. So that should be your tactic.

I would definitely wait to file suit against them for misrepresentation until you see what happens with your motion to vacate and, until you can consult an attorney who can advise whether you have enough proof to file such a suit.

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This response helped me a tremendous amount. Thank you ScottGem.

I'm going to the courthouse on Tuesday, after Labor Day, to file a motion to vacate. My reasons - I did not understand the legal ramifications (I knew was out of SOL and thought CA could not legally file suit because of this).

I know ignorance of the law is no defense -- this doesn't sound too ignorant, does it?

If the original judgment was in small claims court, they are more lax. Other courts may not be.

Quote:

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Originally Posted by ScottGem

If the original judgment was in small claims court, they are more lax. Other courts may not be.

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Yes, it was small claims.

I can't thank you enough for taking the time to respond and enlighten me w/some great info.