[3357]

A collection agency obtained a Default Judgment against me a few months ago for credit card debt. However I was not served any papers and didn't even know I was being sued until after they got the default judgment. I went to the court clerks office and got copy's of there proof of substituted service, declaration of due diligence and proof of service by mail. On these documents they claimed they served a co-occupant at my residence and also mailed a copy of the summons to me at my residence. I don't have any co-occupants at my residence besides my wife nor did I receive a summons in the mail. So I contacted the collection agency and explained this to them and asked if they would remove the default judgment because I was not served. The guy I was talking to wasn't interested in removing it. I told him I would file to have it removed and he explained to me that the judge would not believe me and would not remove it. I asked him if he could send me some documentation on the debt . He said give him 2 weeks and he will send me every thing he has on it. About 2 weeks later I receive an Abstract of Judgment and a lien notice. (never got any documentation. ) During those 2 weeks I prepared my motion to set aside the default judgment and an answer to the complaint. I filed the motion . Then I get a" Plaintiffs Non-Opposition To Defendants Notice of Motion and Motion to Set Aside Default Judgment "document from the collectors. In that document they state that after careful review of the facts, that the Plaintiff may have indeed effected improper service of the summons. (Geeze) We go to an issue conference and the rent a lawyer they hired has no documentation on this debt or any real proof that it even exists. The Judge was not happy that the Plaintiff had not produced any documentation that would have justified this lawsuit and told him so at that time. The Judge said he is going to grant my motion to set aside the Judgment and set another date for a conference and the Plaintiff is to produce all documentation at that time or he will dismiss the case. About a week after this I get a "Request For Dismissal "Document in the mail from the collectors. I guess they got tired of looking dumb.
OK, my questions are:
1- On the request to dismiss document, they of course request that the case be dismissed without Prejudice. Can I and should I also file a Request for Dismissal but ask that it be dismissed with Prejudice.
2- What about the Abstract of Judgment and lien they filed on me. Don't they need to make that go away as well? Can someone tell me how to go about doing that?
Thanks for Your help

[JudyKayTee]

I can only address the question of service. The Affidavit of Service will contain the description of the person "sub" (substituted) served - get a copy and see if it matches anyone.

I am aware of a matter in which the Defendants claimed bad service, all documentation brought to Court, Judge severely reprimanded the Defendants for misuse of the Court system.

I would check the paperwork and make certain someone didn't accept these papers. If they were not served, attempt to set the judgment aside on those grounds.

[3357]

Went there , Done that, I don't have a clue as to who they served (or if they truly served any one). I would give there substituted service more credability if I had received the summons in the mail . They claimed they mailed it to my address. If that were true I would have received it. Anyway my motion to set aside the default dosen't matter because the defendant admitted they effected an improper service and has moved to dismiss the suit with without prejudice. I believe that means they can refile again.
I was hopeing someone could tell me if I would be out of line in the courts eyes if I filed a motion to dismiss also but ask that it be dismissed with prejiduce.
Also the collection agency has an abstract of judgement and a lien filed on this case against me. The case is going to be dismissed one way or another but I don't think the lien will disappear with it.

[ScottGem]

Yes you should hold out for dismissal with prejudice. As for the lien does it list any specific property? If no I would request a letter revoking it, but I wouldn't worry about it. If you get the dismissal and they try using the lioen they will be in even more trouble.