What is the name of your state?What is the name of your state?What is the name of your state? OH What are the odds of getting out of a default judgement agaisnt me from 2003 if I go to the courthouse where the judgement was awarded and file a motion to vacate judgement due to improper service? They haven't collected a dime on it. Don't courts in Ohio require service by a court officer or at the least certified mail? The notification arrived regular mail while I was out of state. The law firm that got the judgement is over 2 hours away with a judgement that is just over 2 grand- what are the odds they will not show up to defend it? The judgement is on a visa that was signed and opened in 1993 with the last payment defaulting it in 1996. The collection agency reported it as new in 2000 and I do not think they can verify the debt. Any thoughts?
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Motion to Vacate Judgement
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There's a good deal of additional information that would help but, from what you have posted, I'd say your prospects are slim to none.
Take a look at the case file and see how you were served. The mailing could have been only part of service. In any event, at some point, the court had to find that there was proper service or it would not have entered the judgment.
The same reasoning should apply to the debt. The plaintiff must support its case to the satisfaction of the court, whether you oppose it or not. It's called the Burden of Proof, and it's the plaintiff's responsibility. That suggests to me that, at some point, the court was satisfied that there was a legitimate debt, that it was not beyond the SOL, and that you were properly served and had a chance to defend but didn't.
Finally, despite the fact that nothing has been collected, what has happened since judgment was entered? Was the judgment recorded? Was an Abstract filed? When did you learn about the whole thing? Courts have a bias in favor of a "hearing on the merits", as opposed to a default. So, for example, if you had been properly served under Ohio law but it just happened that you were traveling outside the country at the time and the case went to default before you actually found out about it, your court is likely to be reasonably generous about vacating the default and giving you an opportunity to defend yourself. BUT you must act promptly, as soon as you learn of the judgment. You've waited two years. I don't know, but I'm inclined to think that you didn't find out last week, and you've waited too long to even file the motion.
So, unless you have all the facts falling the right way for you, who's to say that the attorneys have to show up? They could file a written opposition pointing out all or any one of the foregoing problems, and the court could deny your motion on its own. I suspect that it would.
Take a look at the case file and see how you were served. The mailing could have been only part of service. In any event, at some point, the court had to find that there was proper service or it would not have entered the judgment.
The same reasoning should apply to the debt. The plaintiff must support its case to the satisfaction of the court, whether you oppose it or not. It's called the Burden of Proof, and it's the plaintiff's responsibility. That suggests to me that, at some point, the court was satisfied that there was a legitimate debt, that it was not beyond the SOL, and that you were properly served and had a chance to defend but didn't.
Finally, despite the fact that nothing has been collected, what has happened since judgment was entered? Was the judgment recorded? Was an Abstract filed? When did you learn about the whole thing? Courts have a bias in favor of a "hearing on the merits", as opposed to a default. So, for example, if you had been properly served under Ohio law but it just happened that you were traveling outside the country at the time and the case went to default before you actually found out about it, your court is likely to be reasonably generous about vacating the default and giving you an opportunity to defend yourself. BUT you must act promptly, as soon as you learn of the judgment. You've waited two years. I don't know, but I'm inclined to think that you didn't find out last week, and you've waited too long to even file the motion.
So, unless you have all the facts falling the right way for you, who's to say that the attorneys have to show up? They could file a written opposition pointing out all or any one of the foregoing problems, and the court could deny your motion on its own. I suspect that it would.
vacate and validate
I found out when I pulled a credit report last month. The collection letters have been coming since the judgement but never mentioned the judgement. Thats because the collection company is out of state and the law office is in ohio, and the suit was filed here on their behalf. It does state in the rules of ohio courts southern district that at least certified mail is required- if not by process server. According to the court documents obtained at the court of trial, certified mail attempts were unsuccessful. Proper service was not obtained by law. I would rather pay them and settle out of court than have this judgement there for 10 years. ANd I am wondering if they will show up for a debt just over 2 grand as their law offices are a 3 hour drive.
Do you know the time limit to file such a motion in Ohio? The judgement is Nov 2003. I will look at their paperwork again. I doubt they have the form I signed back with the bank in 1993, and I will contest they do not have validation and see if they show up to defend that and their "legal service."
What do you think? ANy advice if I go this route? What other info would you need?
I found out when I pulled a credit report last month. The collection letters have been coming since the judgement but never mentioned the judgement. Thats because the collection company is out of state and the law office is in ohio, and the suit was filed here on their behalf. It does state in the rules of ohio courts southern district that at least certified mail is required- if not by process server. According to the court documents obtained at the court of trial, certified mail attempts were unsuccessful. Proper service was not obtained by law. I would rather pay them and settle out of court than have this judgement there for 10 years. ANd I am wondering if they will show up for a debt just over 2 grand as their law offices are a 3 hour drive.
Do you know the time limit to file such a motion in Ohio? The judgement is Nov 2003. I will look at their paperwork again. I doubt they have the form I signed back with the bank in 1993, and I will contest they do not have validation and see if they show up to defend that and their "legal service."
What do you think? ANy advice if I go this route? What other info would you need?
I'm going to try to take a different approach to this.
No, I don't know the time limit in Ohio, but you can find out probably more quickly than I can. Try spending time online or in a local law library. In my state, it's 6 months from the time that you learn the default judgment is being sought or already exists. BTW, I'm not questioning your veracity, but I find it very hard to accept that there was absolutely no mechanism that would have alerted you, including sending you a copy of the request for judgment.
I have often said on this forum that succesfully vacating or setting aside a default judgment doesn't make everything disappear. It starts the whole process over. Among other things, that means that you have to pay the cost of filing an Answer and defending yourself.
You think they can't prove that you signed for the card or incurred the debt. What if they asked you under oath? Do you deny everything? Ok, let's say you do. Lo and behold, they produce a copy (from microfiche, microfilm or whatever). Now you've committed perjury. On the other hand, they ask and you admit (just in case they can really come up with it). Same result. Got'ya.
You don't believe they'd travel to try this small case. I can see ways to eliminate the need to travel, but I also know attorneys who would be happy to do it, because they're billing hourly (and most credit card agreements have provisions for recovery of fees (6 hour round trip @ $200/hr. (cheap) = $1,200 just to see you in court).
Look, you want to settle anyway. Why all the discussion? Call them and make an offer. If not, either do your homework or get local counsel, so at least it's done right. No one on the Internet is representing you.
No, I don't know the time limit in Ohio, but you can find out probably more quickly than I can. Try spending time online or in a local law library. In my state, it's 6 months from the time that you learn the default judgment is being sought or already exists. BTW, I'm not questioning your veracity, but I find it very hard to accept that there was absolutely no mechanism that would have alerted you, including sending you a copy of the request for judgment.
I have often said on this forum that succesfully vacating or setting aside a default judgment doesn't make everything disappear. It starts the whole process over. Among other things, that means that you have to pay the cost of filing an Answer and defending yourself.
You think they can't prove that you signed for the card or incurred the debt. What if they asked you under oath? Do you deny everything? Ok, let's say you do. Lo and behold, they produce a copy (from microfiche, microfilm or whatever). Now you've committed perjury. On the other hand, they ask and you admit (just in case they can really come up with it). Same result. Got'ya.
You don't believe they'd travel to try this small case. I can see ways to eliminate the need to travel, but I also know attorneys who would be happy to do it, because they're billing hourly (and most credit card agreements have provisions for recovery of fees (6 hour round trip @ $200/hr. (cheap) = $1,200 just to see you in court).
Look, you want to settle anyway. Why all the discussion? Call them and make an offer. If not, either do your homework or get local counsel, so at least it's done right. No one on the Internet is representing you.
discussion
Yes I do want to settle. All the discussion because if I can have a would be creditor pull up my report in the future I do not want the judgement on there. If I can get it vacated then it is off the credit reports too. I will gladly settle with them out of court. After researching online on such sites as creditinfocenter.com I have found that a negative mark is gonna wreak havoc and a "paid" or "charge off-settle" will do little to help. And quite frankly I am exploring all of my options. Don't you think they have? I have considered retaining counsel though paying money to get out of debt does not make sense.
Yes I do want to settle. All the discussion because if I can have a would be creditor pull up my report in the future I do not want the judgement on there. If I can get it vacated then it is off the credit reports too. I will gladly settle with them out of court. After researching online on such sites as creditinfocenter.com I have found that a negative mark is gonna wreak havoc and a "paid" or "charge off-settle" will do little to help. And quite frankly I am exploring all of my options. Don't you think they have? I have considered retaining counsel though paying money to get out of debt does not make sense.
It's not just going to go away.
AND - -usually by the time you've been sued, it's too late to call them and offer a settlement payment.
Please not, I stated usually too late. That's not written in stone, however, you have had since 11/2003 it sounds like. It's been a year and a half.
I'm surprised that the law office handeling your account has not seized your bank account yet
AND - -usually by the time you've been sued, it's too late to call them and offer a settlement payment.
Please not, I stated usually too late. That's not written in stone, however, you have had since 11/2003 it sounds like. It's been a year and a half.
I'm surprised that the law office handeling your account has not seized your bank account yet
seize
They haven't been able to find me. My nickname is stash only because "Fletch" was taken. You are right it will not go away though so I had better get something going. I need to pay it though if I can get them to take it off the report ie settle out of court that is how I want to try and play it. I wrote these guys checks trying to start a payment plan a month before the suit and they used the info to sue and tried to levy my account a few months after I have since found out. I was led to believe I was paying them to stay out of court and they simply used the info to help their case. Sneaky Pirates...
They haven't been able to find me. My nickname is stash only because "Fletch" was taken. You are right it will not go away though so I had better get something going. I need to pay it though if I can get them to take it off the report ie settle out of court that is how I want to try and play it. I wrote these guys checks trying to start a payment plan a month before the suit and they used the info to sue and tried to levy my account a few months after I have since found out. I was led to believe I was paying them to stay out of court and they simply used the info to help their case. Sneaky Pirates...Check this link and note subparagraph 4.4
http://www.megalawserve.com/states/oh.php
Ohio, like most states provides for service by "publication" when your address is unknown. Since you admit you have been in hiding, that is most likely how you were served.
The only way to know for sure is to go to the court clerk's office and ask to see the judgment file. Read it and you will find something that tells you how service was made.
Sometimes the court clerk can tell you the procedures for a motion to vacate. Some courts have a form that you just get from the clerk. Keep in mind that they are not there to give you legal advice and won't go into that territory.
Personally, I think you are trying to jump a hurdle that is too high.
If you really don't want the judgment on your CBR, then make your deal wherein the holder of the judgment agrees to vacate and then dismiss the case. That is the only way you can really "vanish" the judgment. Expect to pay up for this.
http://www.megalawserve.com/states/oh.php
Ohio, like most states provides for service by "publication" when your address is unknown. Since you admit you have been in hiding, that is most likely how you were served.
The only way to know for sure is to go to the court clerk's office and ask to see the judgment file. Read it and you will find something that tells you how service was made.
Sometimes the court clerk can tell you the procedures for a motion to vacate. Some courts have a form that you just get from the clerk. Keep in mind that they are not there to give you legal advice and won't go into that territory.
Personally, I think you are trying to jump a hurdle that is too high.
If you really don't want the judgment on your CBR, then make your deal wherein the holder of the judgment agrees to vacate and then dismiss the case. That is the only way you can really "vanish" the judgment. Expect to pay up for this.
Debt Guy -
That's a valid message to carry on. I got a private email this week from one poster to whom I recommended it awhile ago. It worked in another state! Makes the last couple of months here worthwhile, and I re-learned much of what I had long forgotten, so thanks to all; hope it helps others.
Will probably be back (other members can take that as a threat or promise), but the batteries need recharging. Agree with DC. Much said repeatedly for those who don't search.
Ladynred, respect and admire you, but you know lawyers and debt collectors have to spend time lying and throwing widows and orphans out into the cold, so gotta do what the rotters expect.
Best to you all. Ask Admin. to hold the names and adresses. Never know when the addiction will take hold again.
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