While attempting to refinance my house, I've discovered that there is a lien against the property which was the result of a default judgment filed on 04/02. The case lists "OSI Funding Corp." as the plaintiff, however they don't have any information on the account and it has since been deleted from my credit reports. Another strange thing about the case file is that printed at the top is 'to: "my name " and "somebody I've never heard of's name"...There was an attorney's name/phone # printed on the bottom of the case - which I called. They can't tell me who the other person is, but they did say I owe $8200.00 for an old FUSA MasterCard account. (I thought this was settled but apparently not - its most likely legit).
Neither my husband nor myself were ever served on this case, and the lien came as a total shock to me. (I wouldn't have wasted the $350 on an application to refinance if I had known about it.) Shouldn't we have been notified if we were being sued?
My question is how do I get the lien on my house removed?
The prothonotary's office said I could file a motion to 'strike the judgment' because I was never served...but they don't have any papers I can file, (i.e. I would have to go down to the law library and do the research to file it properly). Or get a lawyer.
If I try to get a settlement offer from the atttorney's office, I don't have much leverage do I? Since they have lien on my property, they can demand full payment, correct?
I'm wondering 1) if it's worth the time, effort and $$ to try to get this 'vacated'? or 2) if I should try to settle with an attorney representing a client that knows nothing of the account or 3) maybe even try to contact the original creditor (FUSA)?
You need to go down to the courthouse and get a copy of the case file for the judgment. If you've already got it, then in the file should be a Proof of Service. That will tell when, where, how, and to whom the summons was served. If you were not properly served then it *may* still be possible to get the judgment vacated on that basis.
I did get a copy of the judgment...there is nothing that says 'proof of service' anywhere on the document. There is a handwritten note that says 'notice mailed' but I have no idea what that is referring to.
As correctly noted by Ladynred, you need to view the casefile, not the judgment. What you are looking for is the notice of service, documenting who was served, how and by whom. Once you have that information, you will need to verify that the service noted was in compliance with state requirements for service of a complaint or summons.
If the service was not in accordance with the requirements (it probably was), then you would have to file a motion with the court to set the judgment aside and be prepared to show how the service was deficient. If the court agrees, they can decide to void the judgment.
Otherwise, you really have no way to set this judgment and lien aside..... then to pay it. I would suggest that you add the amount of the judgment to your refinance amount and then pay the judgment (and clear the lien) from the proceeds of the refinance.
I might add though.... your own post implies that you did owe this debt..... so it is fairly likely that the judgment will be valid and that you will need to clear the lien (by payment) if you intend to refinance or sell the property.
I called the courthouse to get a copy of the judgment and was unaware of any documentation in addition to this. I'll try again. I was not served on this. I'm not disputing that I owe somebody money...I am disputing that I was never given the opportunity to defend myself in court, or avoid the judgment by making payment arrangements out of court. Now that there is a lien on my house, there will be no refi loan, and I don't have 8k sitting around to pay this off. I was just trying to figure out my options. I never knew that someone could sue you, and put a lien on property, etc. without you ever even knowing about it.
I was not served on this. I'm not disputing that I owe somebody money...I am disputing that I was never given the opportunity to defend myself in court, or avoid the judgment by making payment arrangements out of court. Now that there is a lien on my house, there will be no refi loan, and I don't have 8k sitting around to pay this off. I was just trying to figure out my options. I never knew that someone could sue you, and put a lien on property, etc. without you ever even knowing about it.
PA allows service of lawsuits as follows:
"RULE 402. SERVICE UPON INDIVIDUALS. ADULTS. MINORS. INCAPACITATED PERSONS.
(a) Original process may be served upon a defendant who is an adult (1) by handing a copy to the defendant; or
(2) by handing a copy
(i) at the residence of the defendant to an adult member of the family with whom the defendant resides; but if no adult member of the family is found, then to an adult person in charge of such residence; or
(ii) at the hotel, inn, apartment house, boarding house or other place of lodging at which the defendant resides to the manager or other person authorized to accept deliveries of United States mail; or
(iii) at any office or usual place of business of the defendant to the defendant's agent or to the person for the time being in charge.
(b) If the defendant is a minor or an incapacitated person, original process shall be served
(1) upon the minor or the incapacitated person in the manner prescribed for service of original process upon an adult defendant, or
(2) by handling a copy to the guardian of the minor or incapacitated person."
"RULE 403. SERVICE BY MAIL
If a rule of civil procedure authorizes original process to be served by mail, a copy of the process shall be mailed to the defendant by any form of United States mail requiring a receipt signed by the defendant or the defendant's authorized agent. Service is complete upon the defendant or the defendant's authorized agent signing the required receipt.
(1) If the mail is returned with notation by the postal authorities that the defendant refused to accept the mail, the plaintiff shall have the right of service by mailing a copy to the defendant at the same address by ordinary mail with the return address of the sender appearing thereon. Service by ordinary mail is complete if the mail is not returned by the postal authorities to the sender within fifteen days after mailing.
(2) If the mail is returned with notation by the postal authorities that it was unclaimed, the plaintiff shall make service by another means pursuant to these rules."
"RULE 430. SERVICE PURSUANT TO SPECIAL ORDER OF COURT. PUBLICATION
(a) If service cannot be made under the applicable rule the plaintiff may move the court for a special order directing the method of service. The motion shall be accompanied by an affidavit stating the nature and extent of the investigation which has been made to determine the whereabouts of the defendant and the reasons why service cannot be made.
(b)(1) If service of process by publication has been authorized by rule of civil procedure or order of court, the publication shall be by advertising a notice of the action once in the legal publication, if any, designated by the court for the publication of legal notices and in one newspaper of general circulation within the county. The publication shall contain the caption of the action and the names of the parties, state the nature of the action and conclude with a notice substantially in the following form:
If you wish to defend, you must enter a written appearance personally or by attorney and file your defenses or objections in writing with the court. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you without further notice for the relief requested by the plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS NOTICE TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
As you can see, there are lots of ways that a party can be properly served.... and not know about it.
Get a copy of the service and see if it meets the above. If it doesn't, you MIGHT be able to challenge the judgment. If it does, you need to contact the judgment creditor and see about paying the judgment.
Thanks for all the information! That certainly aids my decision...to not waste my time trying to fight it. I'm just going to have to make some payment arrangements to remove the lien. I really have no choice. Thanks again for your help.
I wouldn't give up so easily. Your post indicates that you are uncertain about the debt and the age of the debt. I would follow through with getting a copy of the case file. CA's are not the most trustworthy people and the service may be defective.
If you are not sure then check it out before you just pay.
You're right lpwat...after re-reading my post its apparent that I've become completely intimidated by the CA. I'm a little freaked out that someone has a lien on my property and could potentially sieze my bank account. I just want it to be over with. I should at least get a copy of the whole file, and ask the ca to validate the debt so I know the particulars.
Asking a ca to validate a judgment is worthless. All they need do is present you a copy of the judgment. A judgment is a factual matter and no need to validate. Your hope lies with getting the thing vacated and if successful, then demand validation.
This recently happened to me and I did get the judgement vacated. They had fozen my bank accounts. Now it may be different here in NY but the clerk showed me the "proof" the CA showed in obtaining the judgement. It was an affadavit by an attorney who works for the CA! No paperwork, no original signatures...nothin! It is vacated right now and my bank acct released but i still have to go to court. I did send a validationletter to them on the 26th of June so we'll see what happens. Read this for more insight:[url]http://www.narca.org/Newsletter/2003/1stquarter/challenges.asp.[/url] Good luck also it seemed that it was pretty easy to get the judgement vacated probably because of the shoddy proof and proof of service rules.
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