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ddog74 · Jul 31, 2007, 10:30 AM

First off, I reside in NEw York State. Last week my bank card was rejected at a restaurant even though I had ample funds available. I went home and called the bank and they informed me that a Hold was placed on my account for $1800. They gave me a law firm's number and told me there was nothing they could do. I called this law firm the next day and the representative informed me that this matter was regarding a heating oil delivery (s) from 2001 -2002. She gave me a judgement number that she said they got in 2003. I did not believe her and went to the court that she said they filed it at and thou and behold they actually did get a "Default Judgement" on me back in 2003. I never saw it on my credit reports that I have looked at nor have they ever made any attempt to collect this debt. The Court clerk instructed me that my only recourse was to file for a Order to show cause on a Motion to vacate judgement. I called a attorney friend of mine and he told me that they would have had to serve me with a summons in order to get a judgement but that Service in this case is sketchy in that they can just mail it to your last known address. I filled out the motion paperwork citing "No Service" and lack of validation of debt all the time thinking I was sunk. To my surprise the judge signed order to show cause and I have a hearing scheduled. My question is this: what do I need to do at the hearing to get this vacated. I have not seen a copy of the judgement nor any paperwork that shows they tried to serve me. Does the firm have to send me this? Any other hints or strategy would be appreciated.

ScottGem · Jul 31, 2007, 10:38 AM

If you read the many threads in this forum about similar situations you would not have been surprised that the order was granted. Its not uncommon for collection agencies to fudge service to get default judgements so they can then garnish wages or attach bank accounts.

So you need to contact the creditor and require they send you validation of the debt. When you go to the hearing they will have to send a representative for the creditor other than their attorney (unless the attorney is an inhouse employee). They will need to produce a record of the service. If they can't the judge will vacate the judgement and they will have to refile for it.

If they do refile, they will then need to produce validation of the debt which will be a copy of your agreement to purchase oil and a record of deliveries and payments. If they don't the judge will dismiss the case against you.

If you do get the judgement vacated, then ask for an order releasing the bank account attachment and bring it to your bank so you can close out the account.

ddog74 · Aug 1, 2007, 06:12 AM

Thank you for your response. I do apologize for not reading more of the posts on this topic before posting my question, there is a lot of information that is helpful.

One question that I do have that I cannot get find a definite answer to is how I can get and view their record of service or affidavit of service before my hearing. I would think that in most cases this would be considered discovery and I should be provided with a copy. Is this the case and if so, do I wait for them to send it or do I have to ask?

ScottGem · Aug 1, 2007, 06:19 AM

You need to file a motion for Discovery specifying the documents you want. But it may not be necessary for them to produce this evidence prior to the hearing.

ddog74 · Aug 1, 2007, 06:25 AM

Thank you again. I will have to go down to the court and ask about this. I see in the Order to show cause paper work it states that "ALL papers the plaintiff desires to submit in opposition to the defendant's motion must be served on defendant and forwarded to the court by the hearing date with proof of service."

I would think that since my motion is based on lack of service and lack of validation of debt that these would be key evidence.

ScottGem · Aug 1, 2007, 06:27 AM

Yep, just add an addendum to the show cause order specifically asking for the documents.

ddog74 · Aug 1, 2007, 06:38 AM

The problem is that the Order has already been filed and signed by judge. I even had it served to the Sherriff and the plaintiff. Is it possible to add this addendum at this time or am I better off filing a motion for discovery and specifically asking for these documents. I must tell you that I don't even have a copy of the judgement at this point. I guess I kind of assumed that these would be provided to me. I have two weeks before the hearing.

ScottGem · Aug 1, 2007, 07:09 AM

I wouldn't be too concerned. You will have time at the hearing to look over the documents assuming they are produced. If they aren't, then the judge will vacate.

You can contact the court clerk and express your concerns, see what they say.

ddog74 · Aug 1, 2007, 07:22 AM

Thanks a lot! You have been a great help and I appreciate it.

Let me ask you your opinion. If they do produce a statement of service showing that they tried to serve me, when I say "tried" I am using the term loosely, will a judge deny the motion. It just seems to me that if they can get a judgement without my knowledge then it is up to me to prove they didn't serve me properly. I worry that they are going to produce some bogus affidavit saying that they left it in mailbox of some old address and that judge is going to say that it is sufficient. How can I defend against this? It seems too easy for this to happen to people under New York satate laws.

ScottGem · Aug 1, 2007, 08:42 AM

There are rules about service. They have to make a good faith effort. If the judge deems they didn't, then he will vacate. The thing is here they have found oyu now, which means they should have been able to then.

ddog74 · Aug 1, 2007, 08:51 AM

Actually, the only reason I know of this was that they Got a hold on my bank account. They have never to my knowledge called me or even sent a notice to me. I don't know if they had to know my bank account information or if they just try every bank.

I do agree that I was not hiding and I could have been found easily. I am still in disbelief that this judgement was entered in 2003 and I am just finding out about it.

ScottGem · Aug 1, 2007, 09:51 AM

No, they did have to know the exact account number.

ddog74 · Aug 8, 2007, 04:45 PM

I received response from attorney from my request to validate debt. It was a copy of a credit contract, a computer transaction record, and the copy of the judgement filed in 9/2003. On the bottom of the judgement there is a "Attorney Affirmation" that states that they mailed copy of summons in an envelope marked "Personal and confidential."to my home on a certain date and that it was not returned. It states that it appears on the afidavit of service, which I do not have. My worry is that I was at the said address at the time they claim to have mailed this. I have never seen this and have no recolection of ever getting this. I would remember. Is there anything to counter with or will this be seen as "good faith?"

ScottGem · Aug 8, 2007, 06:27 PM

I'm afraid this may be seen as good faith. Your best course at this point is to make a statement that you never recevied notice.

ddog74 · Aug 8, 2007, 07:36 PM

Should I submit that to the court or should I just bring it to the hearing? I am going to do a little research on the procedures.

nancytwy43 · Aug 8, 2007, 08:53 PM

Originally Posted by ddog74

First off, I reside in NEw York State. Last week my bank card was rejected at a restaurant even though I had ample funds available. I went home and called the bank and they informed me that a Hold was placed on my account for $1800. They gave me a law firm's number and told me there was nothing they could do. I called this law firm the next day and the representative informed me that this matter was regarding a heating oil delivery (s) from 2001 -2002. She gave me a judgement number that she said they got in 2003. I did not believe her and went to the court that she said they filed it at and thou and behold they actually did get a "Default Judgement" on me back in 2003. I never saw it on my credit reports that I have looked at nor have they ever made any attempt to collect this debt. The Court clerk instructed me that my only recourse was to file for a Order to show cause on a Motion to vacate judgement. I called a attorney friend of mine and he told me that they would have had to serve me with a summons in order to get a judgement but that Service in this case is sketchy in that they can just mail it to your last known address. I filled out the motion paperwork citing "No Service" and lack of validation of debt all the time thinking I was sunk. To my surprise the judge signed order to show cause and I have a hearing scheduled. My question is this: what do I need to do at the hearing to get this vacated. I have not seen a copy of the judgement nor any paperwork that shows they tried to serve me. Does the firm have to send me this? Any other hints or strategy would be appreciated.

I am going through the same type of thing. It is on my credit report, yet I am not sure what I am supposed to do nor do I know what it is from. There has been no information regarding this judgement sent to us. I don't know what it is for..

ddog74 · Aug 13, 2007, 08:09 AM

The company (Law Firm) has sent a letter asking me to contact them to resolve matter and they want me to contact one of their attorneys not some hack in their collections department. I am going to call to hear what they say but the one thing I want is to have the judgement vacated. I am willing to pay the amount they say I owe on the judgenment Today but is it unreasonable for me to ask that they file a motion to vacate judgement? How would that be negative for them?

ScottGem · Aug 13, 2007, 08:46 AM

If you can pay in a lump sum offer to settle for the ORIGINAL amount of the debt not the current balance with interest and fees.

I doubt if you can get them to vacate the judgement, but they should list it as satisfied. You can ask they they not oppose your motion to vacate. That might work.

ddog74 · Aug 14, 2007, 07:52 PM

Update: Plaintiff's attorney and I spoke and they agreed to release the Hold on the Bak account. He also sent me a stipulation of Settlement that states that we have resolved the issue and that it vacates the judgement. I just have to pay the original balance plus a little extra. I actually paid $400 less than what they had demanded. It seems pretty good. I am happy to have it vacated. The one thing that bothers me is that he said that he would submit it to the court when roll call took place the morning of the hearing. He even states that in the letter stating that I do not have to appear. I am a little weary of this. Everything does look official and correct, I do have a copy to prove that it was sent to me but I wonder if there is anything I am missing? I do not want to have done all this work and then still have the judgement against me because I agreed to a settlement and because I didn't show up to the hearing it somehow does not get vacated. Any advice or am I just paranoid?

ScottGem · Aug 15, 2007, 05:18 AM

If its not a hassle, then show up in court anyway. Don't announce yourself (he probably doesn't know what you look like) and make sure you have his letter with you. If he doesn't do what he said, open your mouth and show the letter.

If it's a hassle to show up in court, then contact the court clerk and ask for confirmation of the disposition.