Vacating a default judgment

[gingerox]

Glad you mentioned that. You started in the wrong place.
Forget everything that I said about Small Claims.

Ok, are you saying that just the judgment cannot be vacated in small claims court, or that this whole case is just not a small claims case?

While the plaintiff knows now, it's not clear from your post that it knew the address was wrong when process was served. For me, there is nothing in your post that clearly suggests an FDCPA violation - not yet anyway. That may just be a matter of information that you haven't provided yet, but I don't see it. On the other hand, it does sound as if the plaintiff is making a good-faith effort to set things right.

Perhaps in good-faith, but it seems more like it's part of a scam because there are so many misrepresentations and false claims in their case. Also, it seems suspect that they used the fake address/info for all communication prior to the judgment, but were somehow conveniently able to find my correct information to try and enforce the judgement.

Specifically, the plaintiff's law firm said they got the address from one of my credit reports. When I called that credit agency, they said it was the plaintiff who reported the false address to be placed on there. (Privacy issues & Communications of credit info - violations under articles 2.5 & 2.13...and additional misrepresentation, etc.). Also, this address is not on any of my other credit reports.

Additional FDCPA violations:

- Privacy violations (under article 2.5) - they had called me at my place of employment 2 additional times after I'd asked them to not call me there and gave them my cell phone number instead.

- Misrepresentation/deceptive simulation (under article 2.7) - they lied about having had papers served to my place of employment (they told me the papers were served to my employer for wage garnishment on a specific date, then another person later said that papers had not been served yet). After having confirmed my correct address and info to the, they said they'd send me some sort of document about the case so I could respond to it...then never did. I called again and asked them to send me a copy of the judgment...then never did. After the last harassing call I got (at the office, again) they finally faxed me a copy of the judgment, which is the first document I've seen about the case. (this was faxed only last week...their initial call/contact with me was at the end of November). All they want is to get something from me in writing...which is why I haven't sent anything yet, because I didn't know what I was disputing.

- Misrepresentation of legal procedures (under article 2.7) - from the first call to the last call, they continue to threaten wage garnishment and guise the calls as, "...just FYI, we're proceeding with wage garnishment, etc." knowing that I was waiting for something in writing from their office.

- Non-disclosure/violated my rights to dispute (under article 2.3) - from the first conversation, they have refused to send me verification of the debt or anything in writing from their office.

- Unfair collection practices (under articles 2.6) - attempting to collect a claim that is too old to be enforceable. They won't verify it, but if the account I had with the original creditor they claim the debt is from, it is long past its SOL.

- Unfair collection practices & Misrepresentation of amount and status of debt (under articles 2.6 & 2.7) - the amount of the alleged debt is insane and I've never had a credit account near that amount.

-Harassment (under article 2.9) - being rude and unreasonable, to which I told the collector in so many words (who would cattily laugh at legitimate questions I asked) to save the attitude, I'm not trying to fight, I need to understand the situation. If ignorant were a violation, I'd add that.

And these aren't even all of the violations.

They are offering to vacate the judgment. They are not going to serve you with "a new judgment". It doesn't work like that. They are probably proposing to serve you with new/correct litigation and start again. If this is the case, and they are proposing to do it by way of Stipulation, I'd consider that offer. Vacating the judgment via motion is something that may be very involved for you, if you're going to do it yourself. And remember, I said your proposed answer must also be attached.

Since they refuse to send me any verification of the debt or any validation of the facts in this case, I am in the process of investigating and putting the puzzle together. Once I gather a few more facts, I do need to call their representation again and discuss their position on vacating the judgment. (especially since their answers seem to change every time I talk to them).

If we can agree to vacate by stipulation, will that give me a chance to dispute this as I would have from the beginning?

Read Calif Code of Civil Procedure §473.5. You can find that here:
http://www.leginfo.ca.gov/calaw.html
You may also want to take a look at §473, depending on the facts of your case.

You won't file the motion with the County Clerk, if that's the way you go. You'll file it with the Court and serve it on the plaintiff and attach Proof of Service to the Court filing. You'll pay a filing fee for the motion and, if it's granted, a filing fee to have your Answer lodged. In all, it's going to be about $450.

Thank you, I will look into these as well.

Do you know if there would be a way of avoiding such expenses as part of a stipulation agreement?

Your question about verification is interesting. The FDCPA says that you have that right within 30 days of the first dunning notice, and there is noting in your post that suggests that they sent you one. Still, given the snafus so far, my guess is that they would respond just to keep their slate as clean as possible. (But you can look to the "plain language of the statute" for your answer.) It appears from your post that they would be within their rights to ignore the request, but you'll have all the information you need, once you're served with the new suit.

I agree with that and them wanting to remain "clean." Which goes back to why they have refused to send me any sort of documentation (with the exception of the judgment) and are persistent in getting me to send them something in writing acknowledging the alleged debt.

Would it be wise to send them a certified letter requesting validation of the debt so I can have that on file? (They seem to be evading this because they cannot validate the debt.)

One last comment: Since you're both going to be incurring new expenses, if you have no defense to the claim (and none is mentioned in your post), this might be a very good time to try to open settlement discussions. An adverse judgment down the line is going to be much more costly.

Would you mind clarifying what you mean by having 'no defense to the claim?'

Many thanks again!

 

[dcatz]

Good Lord!

Your original question was about vacating a judgment. Coincidentally, in a sense, I work with FDCPA and FCRA compliance and I don't see the issues that you do on the facts posted, but I'm not going to debate each of those points with you and it's not my concern to dissuade you. Hire a good consumer rights advocate and go for it, if he/she thinks you have a case. I'd make only two suggestions about that: Make sure that you can bring the law firm within the ambit of the FDCPA (and/or the Rosenthal Act, because you're in California) - i.e. better check who both Acts cover and when, and weigh your potential recovery against costs (assuming that you're able to prevail) - i.e. better check what you can win, if you prevail.

As to the matter of Small Claims Court, if the amount in contention is over $5,000 and/or you were sued by a collection agency, your case can't be there and never was. At $20,000, you must be in Superior Court - Limited Civil. You'd be well-advised to have representation of counsel.

As to them "refusing to provide verification or validation" (assuming as you do that "they" have the responsibility), the prior action is a public record. Go read the earlier pleading or purchase a copy and it have sent to you. It's a public record, and they're likely to re-file the same case.

As to agreeing to vacate by Stipulation, my assumption is that they will include terms and conditions permitting expedited service of a new action (possibly by certified mail) and set a time limit within which you must respond. If you didn't agree to that, my guess is that they'd make you file your motion. If it wasn't defective (so they could oppose it, make you do it again and let them collect expenses for defeating it), they probably wouldn't oppose it. The Court would be disposed to grant it. Then your Answer would be on file and the whole thing would start anew. That would be prudent. If I'm right, you get a choice on how to start anew and also your "chance to dispute this". Actually, absent a settlement, there is no choice. One way or another, you're in litigation.

As to "no defense to the claim", if you have one, I don't see it mentioned.

 

[gingerox]

Good Lord!

Your original question was about vacating a judgment. Coincidentally, in a sense, I work with FDCPA and FCRA compliance and I don't see the issues that you do on the facts posted, but I'm not going to debate each of those points with you and it's not my concern to dissuade you. Hire a good consumer rights advocate and go for it, if he/she thinks you have a case. I'd make only two suggestions about that: Make sure that you can bring the law firm within the ambit of the FDCPA (and/or the Rosenthal Act, because you're in California) - i.e. better check who both Acts cover and when, and weigh your potential recovery against costs (assuming that you're able to prevail) - i.e. better check what you can win, if you prevail.

As to the matter of Small Claims Court, if the amount in contention is over $5,000 and/or you were sued by a collection agency, your case can't be there and never was. At $20,000, you must be in Superior Court - Limited Civil. You'd be well-advised to have representation of counsel.

As to them "refusing to provide verification or validation" (assuming as you do that "they" have the responsibility), the prior action is a public record. Go read the earlier pleading or purchase a copy and it have sent to you. It's a public record, and they're likely to re-file the same case.

As to agreeing to vacate by Stipulation, my assumption is that they will include terms and conditions permitting expedited service of a new action (possibly by certified mail) and set a time limit within which you must respond. If you didn't agree to that, my guess is that they'd make you file your motion. If it wasn't defective (so they could oppose it, make you do it again and let them collect expenses for defeating it), they probably wouldn't oppose it. The Court would be disposed to grant it. Then your Answer would be on file and the whole thing would start anew. That would be prudent. If I'm right, you get a choice on how to start anew and also your "chance to dispute this". Actually, absent a settlement, there is no choice. One way or another, you're in litigation.

As to "no defense to the claim", if you have one, I don't see it mentioned.

Sorry for the lengthy response...I'm probably getting ahead of myself.

Ok then, going back to the original question (knowing more or less the situation at hand and putting aside any potential counter suit for now)...

1 - first step, the judgment must be vacated in superior court or by a stipulation agreement with the plaintiff, correct?

2 - then, if a stipulation agreement is not reached, I would have to individually file the motion with the superior court?

3 - to your point about the "verification/validation" being a public record…I have a copy/verification of the judgment. It's the first and only verification document I received from the plaintiff (received last week). What I don't have is verification of the debt itself.

Now, Article 2.3, Paragraph 4 of the FDCPA states that "The debtor may require verification of the debt's existence, amount or anything else. The debtor can require a debt collection agency to verify the existence or amount of a debt that the debtor disputes or may dispute. In order to exercise that right, the debtor must notify the debt collection agency in writing and within 30 days after the debtor first receives the verification notice. Etc..."

When I talk to their representation about a stipulation agreement, I will notify them that I will send a letter asking them to verify the debt itself, etc. and see if they can actually validate it. If I'm in litigation, I guess my only defense at this point is to start getting things in writing.

Would these steps be a good start?

As always, thank you. (If you're ever in the LA area, I'll buy you lunch!)

 

[dcatz]

As to #1 - Yes.

As to #2 - Yes.

As to #3 - I was just making the point that you had suggested that you were dealing with the law firm (although you may be dealing with both). The FDCPA deals with debt collectors and even the extended definition didn't bring all attorneys into that fold. So your concurrent obligations are to be sure that your request is timely AND that you're dealing with persons to whom that obligation applies. If you can't establish both, look to the pleading. (I would think that it's a better source anyway.)

All of your communications should be and have been in writing, CRRR.

Thank you for the offer.

 

[gingerox]

As to #1 - Yes.

As to #2 - Yes.

As to #3 - I was just making the point that you had suggested that you were dealing with the law firm (although you may be dealing with both). The FDCPA deals with debt collectors and even the extended definition didn't bring all attorneys into that fold. So your concurrent obligations are to be sure that your request is timely AND that you're dealing with persons to whom that obligation applies. If you can't establish both, look to the pleading. (I would think that it's a better source anyway.)

All of your communications should be and have been in writing, CRRR.

Thank you for the offer.

Thank you. One last question (I promise)...

So far I have only been contacted by the plaintiff's law firm who identify themselves as a "legal debt collector hired by [the plaintiff]." Would it be best to send the letter requesting verification of the debt to the law firm, the plaintiff or both?

 

[dcatz]

Well it appears that the law firm is subject to the Act, so I'd say the law firm definitely. Beside, it was the firm that invited the written dispute.

You don't indicate whether the plaintiff is the original creditor (Rosenthal applies to the OC but the FDCPA doesn't), but you might as well request it from both, if only because you haven't felt you were having much luck with either.

Just out of curiosity, what firm is it?

 

[gingerox]

Well it appears that the law firm is subject to the Act, so I'd say the law firm definitely. Beside, it was the firm that invited the written dispute.

You don't indicate whether the plaintiff is the original creditor (Rosenthal applies to the OC but the FDCPA doesn't), but you might as well request it from both, if only because you haven't felt you were having much luck with either.

Just out of curiosity, what firm is it?

The plaintiff is not the original creditor and the law firm is Eskanos & Adler. From the research I've done on them thus far, quite the bunch of crooks. Oh well, what goes around comes around.

Anyway, many many many thanks again! Take care!