• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Judgment - false 'proof of service' address/expired SOL on original debt

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

gingerox

Junior Member
What is the name of your state? CA

I retained a copy of a default judgment against me for the recovery of money on an alleged debt from a law firm threatening to proceed with wage garnishment to enforce the judgment.

1 - This is the 1st time I've seen the judgment or any such related documents. The proof of service of the summons states delivery to an address I've never lived at, left with a person I have no affiliation with (we happen to have the same last name). What's the best way to dispute this? Should I motion to vacate this judgment? If so, how do I proceed with that?

2 - Also, it looks like the plaintiff is a collection agency who bought the account from the original creditor. The debt to the original creditor does not appear on my credit report. Even if it did, the alleged debt would have passed its statue of limitations from the original creditor. Can the collection agency still pursue this in court? (the law firm represents the credit agency and not the original creditor).

3 - Is the SOL just an affirmative defense in court or something that I can present to the law firm/collection agency to cease collection attempts?

I'd appreciate advice on the best way to proceed. Thank you!
 


Ladynred

Senior Member
1 - This is the 1st time I've seen the judgment or any such related documents. The proof of service of the summons states delivery to an address I've never lived at, left with a person I have no affiliation with (we happen to have the same last name). What's the best way to dispute this? Should I motion to vacate this judgment? If so, how do I proceed with that?
Unfortunately this is all to common a tactic with too many collection agencies and junk debt buyers. YES, you need to appeal the judgment and file a motion to vacate.

Can the collection agency still pursue this in court?
In most states, the expiration of the SOL does not stop them from suing you, they can and will do it. However, there is case law to support that filing suit on a time-barred debt is a violation of the FDCPA:

89. In Kimber v. Federal Financial Corp. (M.D. Ala. 1987) 668 F.Supp. 1480, the court held that it is “unfair” within the meaning of the federal statute to file a time-barred collection suit against a consumer, and that it is a deceptive act to even threaten to file such a suit. The court found that the suit itself misrepresented the legal status of the claim by implying that the
claim was lawful and that the collector would prevail. The court found that strong legal and ethical policies existed against filing suits aft er the statute of limitati ons had expired, and that the collector had no re ason to believe that the statute of limitations had been tolled.
Per the CA FDCPA :
Article 2.6
Unfair Collection Practices
The law prohibits all debt collection practices that are judicially determined to be “unfair.”65 The law also prohibits certain practices that the Legislature has defined as “unfair.”
http://www.dca.ca.gov/legal/dc_2.pdf

3 - The expiration of the SOL is an affirmative defense and you can use it in a cease and desist letter if you choose.
 

gingerox

Junior Member
Ladynred said:
Unfortunately this is all to common a tactic with too many collection agencies and junk debt buyers. YES, you need to appeal the judgment and file a motion to vacate.


In most states, the expiration of the SOL does not stop them from suing you, they can and will do it. However, there is case law to support that filing suit on a time-barred debt is a violation of the FDCPA:



Per the CA FDCPA :
http://www.dca.ca.gov/legal/dc_2.pdf

3 - The expiration of the SOL is an affirmative defense and you can use it in a cease and desist letter if you choose.
Thank you for your advice. How would I file a motion to vacate the judgment? Also, should I notify the law firm that I am doing so? Will putting this in writing hurt my case in any way?

Thank you for this as well. Would you recommend I point this out to the law firm? (I feel like they're using scare tactics and hoping I'm completely ignorant of my rights. They've broken several FDCPA rules...should I put these specifics in writing and send it to them). Again, will putting this in writing hurt my case in any way?

Do you know where I'd be able to find a copy of a cease & desist letter as a guide? Also, should I send this before or after I motion to vacate the judgment? Thank you again…your advice is much appreciated!
 

TigerD

Senior Member
gingerox said:
Thank you for your advice. How would I file a motion to vacate the judgment? Also, should I notify the law firm that I am doing so? Will putting this in writing hurt my case in any way?

Thank you for this as well. Would you recommend I point this out to the law firm? (I feel like they're using scare tactics and hoping I'm completely ignorant of my rights. They've broken several FDCPA rules...should I put these specifics in writing and send it to them). Again, will putting this in writing hurt my case in any way?

Do you know where I'd be able to find a copy of a cease & desist letter as a guide? Also, should I send this before or after I motion to vacate the judgment? Thank you again…your advice is much appreciated!
You are in a completely different area of collecitons. I advised you to talk to a lawyer when you first presented this issue last fall.

The questions you are asking, while pointed good questions, show that you are not able to handle this yourself. You need to speak with an attorney, rather than relying on advice from an internet board.

DC
 

gingerox

Junior Member
debtcollector` said:
You are in a completely different area of collecitons. I advised you to talk to a lawyer when you first presented this issue last fall.

The questions you are asking, while pointed good questions, show that you are not able to handle this yourself. You need to speak with an attorney, rather than relying on advice from an internet board.

DC
Yes, I did speak to an attorney who, at the rate he was charging me, wasn't telling me information much different that what I've found through my own research.

I appreciate your concern. I'm sure you can understand if I'm looking for a little guidance to try and handle this with my limited resources.

Any helpful advice you could offer would be most welcome. Thank you.
 

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top