Default judgement in mistaken identity case.

[Citizen3982]

What is the name of your state? MD

What determines identity in the judgement?
What if a default judgement is made in a case of mistaken identity due to the same name?

In my case, the debtor has my first and last name. Collection agencies have associated an address I have not lived in for more than 18 years but my relatives reside there. The debtor has a different SSN and birthday than me.

Mel S. Harris and associates has sent a summons to this old address for civil court in Brooklyn, NY, and because I am out of state, I am not able to reply with the deadlines. They have never sent me any information on the debt they are trying to collect and have never contacted me before, so the summons is a total surprise to me. A previous collection agency for a different debt inccured by this person did send me that guys' application and delinquencies for a Discover Card, so that is how I obtained his information. (Discover Card associated an old address of mine to that name because I had lived in the same town as that guy. However, the credit card charges were made about 3 years after I had left the area and moved to VA. When Discover Card sold the account to a collection agency, they didn't change the address back.)

So 2 questions arise from this:

1. Will the default judgement actually affect me (Name and former address applies, but SSN and birthday different)?
2. Can I sue Mel S. Harris and Associates to recover costs from dragging me to court from out of state.

Thanks.

[Chien]

Q. Will the default judgement actually affect me (Name and former address applies, but SSN and birthday different)?

A. It should not appear on your credit report, but they may file real property liens post-judgment. That’s not an insurmountable problem, but may be a nuisance down the road. If you haven’t been in contact with Mel Harris, I’d just send a letter explaining the situation, together with the information you received from the other collection agency. Tell him to dismiss the action or at least withdraw that affidavit of service and to send you documentary proof that he did because, if it goes to judgment, you’ll just have to move to vacate. Tell him that, if he takes judgment with advance knowledge of the error, and it subsequently affects you adversely in any way, you’ll also sue for damages after the judgment is vacated. Send the letter certified, RRR. If you don’t try to defend, I’d still check my report after a month or two.

Q. Can I sue Mel S. Harris and Associates to recover costs from dragging me to court from out of state.

A. No. You will not have incurred any damages other than the nuisance of making the trip, and, except for cost of filing a denial, those expenses are not compensable. (I assume that you’re not going to retain counsel to do this, so no recovery of attorney’s fees.) I think the approach suggested is more pragmatic. If he has any intelligence (and that’s reputed to be in doubt), he’ll understand that he’s wasting money and could actually expose himself to damages later. If it works, you may not have to leave home.
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Edit - I just realized this is a duplicate post and you hijacked a 2-year old post to do it. And you're the second one in as many days to do so. You understand how the forum works. Please delete the other thread and confine your questions to your own thread.
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Thank you.

[Citizen3982]

Thanks for the advice Chien. I called the ny civil court and found out that the affidavit of service was filed with them on 8/10/07. I also sent a certified letter to Mel S. Harris and Associates with all the suggestions you gave.

In addition, I will also be sending a copy of this letter to various agencies that others have mentioned, namely:

Federal Trade Commission - Consumer Response Center
CRC-240
600 Pennsylvania Ave, NW
Washington, DC 20580

New York City Dept. of Consumer Affairs
42 Broadway, 9th Floor
New York, NY 10004

Diane Maxwell Kearse, Chief Counsel
Second Judicial Department
2nd & 11th Judicial District Grievance Committee
Renaissance Plaza
335 Adams Street, Suite 2400
Brooklyn, NY 11201-3745

[Chien]

As a practical matter, I think you've done all that you can do, short of going there to defend, at which time, I suspect that they'd dimiss. It's the most certain way to conclude the problem for you, but you will have made the trip, spent the money and had 30 seconds of court time. It may feel a little deflating, but it's your choice.

On the other hand, if they take a default notwithstanding your efforts, your can make the trip, filing a Motion to Vacate will be cheaper than filing a response, a win would seem to me to be a foregone conclusion, and I would ask the Court to award monetary sanctions against Harris and in your favor for having proceeded with knowledge of the error. Keep copies of all of your documents, including the letters and the return receipt, if that's the choice that you make.

[You Are Guilty]

Incidentally, Mel Harris' office is in the First Department (Manhattan), not Second

[Citizen3982]

I was finally able to reach an attorney at Mel S. Harris and Associates and he seemed to be pretty nice.

He was somehow able to verify my SSN based on my current address and just the last digit of my SSN. Initially, he asked for the last 4 digits but I wouldn't give it to him. When I gave him the last digit only, he told me what my last 4 digits were!

Anyway, he said he would send me a discontinuance form for me to sign so he could file it with the court.

Hopefully this is not another tactic.

[Chien]

That's East Coast.
You Are Guilty would be able to tell you if that's what you need.

[You Are Guilty]

You want a "stipulation of discontinuance WITH PREJUDICE". There's actually a $35 ($45?) fee to file it, so let Mel do the honors. Also tell them you want a court-stamped copy once they file it, for your records (saves you a trip to the courthouse to get it).

Glad it seems to have worked out.


PS: Your last 4 SS# are indexed with your address in Westlaw. That's how he knew it.