Order to show Cause - Improper service

[Bring-the-heat]

What is the name of your state? NY

Hello and thanks in advance for any assistance provided.

I'm in a very sticky situation. I 've had a default judgement filed against me by a debt collecting law firm, who several months ago wouldn't agree to a payment plan I could afford. They walked away from bargining with a demand that I pay a $1000 down payment and $200 per month payments. I want to be clear that I do not deny the accuracy of the amount of the debt (> or < $5K).

Several months have passed and two weeks ago, I discovered that my bank account had been frozen. Unfortunately, I have direct deposit with my employer and this occured the day after I my bi-weekly salary was deposited. Also, as luck would have it, my federal tax refund check in the amount of approx $5K was automatically deposited a day or so after I was locked out of my account.

My plan was to use this refund check to finally pay a portion of the debt with Capital One as well as catch up with other bills like rent and utilities that have fallen behind since my financial problems snowballed a few months ago.

Last week, I went to the courts and got a copy of the papers pertaining to the apparent judgement that was passed against me. In it I saw a signed affidavit claiming that a summons was mailed 1st class to my home AND that a ficticious "John" (with my last name) was served the summons and had a discussion about me with this person claiming to have served it.

This never occurred. I was never provided with notice of a judgement against me, nor had a summons delivered to my home so I filed a motion to vacate the judgement and Quash the bank account attachment. I need to get access to my funds so i can make a payment on this debt that I can afford. Today, the day before the hearing, I received in the mail an Affirmation in Opposition to my Order to Show Cause.

I understand that no one here can predict the future, but based upon your knowledge and experiences, what can I expect at tomorrows hearing? If my account isn't unfrozen tomorrow, I will be unable to pay my rent, my car note, all my utilities as well as feed my family. In the big scheme of things, this is such a small amount, but am I a candidate for bankrupcy if indeed I loose my motion to have the judgement vacated? Can I somehow prove financial hardship?


Thanks for listening!

 

[You Are Guilty]

Financial hardship is irrelevant (to the hearing, at least). The only issue is whether their affidavit of service on "John" was valid service upon you. If you have no males living in your home, (and can prove it, espicially with more than just your testimony), then odds are the judge will have to find that service was bad (certain debt collecting law firms are notorious for bad service so this might not be that hard a battle).

Of course, even if you can show bad service, it just means they'll try to serve you again (hopefully correctly this time) and you'd have a chance to argue the validity of the debt, or the amount, in court. If you lose there, you might end up with the same judgment that exists now, plus court costs/attorneys fees tacked on to boot. (Moral of the story is to always be careful what you ask for.)

As far as bankruptcy goes, given the amount of money involved and the fact that your tax refund is close to the debt amount, I highly doubt you'd qualify.

Good luck.

 

[Bring-the-heat]

Will the bank acct be released immediately if I win?

Again, thanks for the response!

How do I prove that "John" doesnt live in my apartment? Living under our roof, I have 3 boys all under the age of 10, one newborn daughter and a wife. Will my personal income tax copies for 2006 help in my favor since my entire family of dependants is listed?

If I do win tomorrow and this judgement is vacated, how soon will I be able to gain access to the funds in my bank account? I am in desparate need of this money yesterday (no seriously) to pay rent, etc...

Also, should I attempt to request a "Traverse Hearing" to put the burden of proof on them? I wont be able to do this before I go before the judge tomorrow morning.

 

[Bring-the-heat]

Back from court this morning...

Their lawyers agreed to vacate the judgement due to my submission of a motion to show cause due to their lack of service. The lawyer did speak to me before I had to wait for my case to go before the judge and at that time I requested a more affordable payment plan as well as the final balance if I wanted to settle in full. They wouldn't go below 80% which was still too much for me at $3600. I need to use that refund check in the checking account to catch up on back rent and payback personal loans from friends I had to take out since my bank account was frozen.

The bank said that my account should be available to me in 3 days (I hope they're correct).

Thanks for the advice.

 

[Hungry&Tired]

Bring the heat - I have a question

You know I have been a victim of a similar situation as you, Improper service and expired sol and received a default judgement, bank account levied and the whole bit on a debt that was settled none -the - less. No one here really gave me any hope of winning w/o using an attorney. Being that I have no funds that was not going to happen. Reading your post has given me the hope and empowerment that I needed to fight this thing.
Is there any insight you could give me to help me win this case and what to expect in court?

It would be appreciated because it looks like improper service and expired sol will be my only defense on this judgement on paid debt.

Sometimes you get about as much justice as you can afford.

 

[Kanman]

You know I have been a victim of a similar situation as you, Improper service and expired sol and received a default judgement, bank account levied and the whole bit on a debt that was settled none -the - less. No one here really gave me any hope of winning w/o using an attorney. Being that I have no funds that was not going to happen. Reading your post has given me the hope and empowerment that I needed to fight this thing.

I agree, this is probably the worst debtor's help forum I have visited and I suspect a lot of these so called "senior members" who post their angry comments on here are nothing more then debt collection advocates in some form or another, wolf in sheep's clothing. You get a mix of opinions which is why real legal advice is always best.

 

[Bring-the-heat]

keep pushing

You know I have been a victim of a similar situation as you, Improper service and expired sol and received a default judgement, bank account levied and the whole bit on a debt that was settled none -the - less. No one here really gave me any hope of winning w/o using an attorney. Being that I have no funds that was not going to happen. Reading your post has given me the hope and empowerment that I needed to fight this thing.
Is there any insight you could give me to help me win this case and what to expect in court?

It would be appreciated because it looks like improper service and expired sol will be my only defense on this judgement on paid debt.

Sometimes you get about as much justice as you can afford.

I can only provide limited advice since I am very new to this and my situation is slightly different. My debt has not expired due to any SOL and is quite valid. I was able to get this default judgement vacated but I still must negotiate a monthly payment plan with these guys. "It still ain't over!"...for me

So you will have to follow my footsteps and go to the court house records window where your case is currentlly. Bring with you the following:

A pocket full of dimes, quarters and nickles for the copier

State picture ID

The index number for your case which should be on any of the docs in your possession that were previously served to you or mailed to you from the court

An optimistic attitude and a smile =3D

Request a copy of your file using the index number and immediately proceed to the copier . You should copy EVERYTHING front and back in your file. If you do luck out and find $$$ for a lawyer, this is what they will require from you anyway...to see whats in your file.

Look for the "Affidavidt of Service" (if there is one) and read it carefullly to see if you can find any discrepancies with the description of the person served, their name, etc...

This is the evidence you can use to your favor to have the default vacated.

This will NOT erase your initial problem as this action now acknowledges that you have been served and you must now defend yourself against their request for a judgement. THis will also give you more time to negotiate a settlement face to face with their lawyer when your asked to go before the judge again to file your response to the default judgement.

There is so much more to do at this point depending on which road you decide to take so just do that for now and keep us updated. I am still in the process of trying to work out a payment plan myself so I am only one step ahead of you. My account has been released as of today! Going now to pull all of my funds out.

Good luck!

 

[TigerD]

I agree, this is probably the worst debtor's help forum I have visited and I suspect a lot of these so called "senior members" who post their angry comments on here are nothing more then debt collection advocates in some form or another, wolf in sheep's clothing. You get a mix of opinions which is why real legal advice is always best.

See, that is where you are confused. It isn't a debtors' help forum. It is a forum for LEGAL advice.

 

[Hungry&Tired]

Ty - Bring the Heat

Bring the heat... TY for answering.
I was feeling real low until I saw your post. You have no idea how you posting your situation here has helped me and God knows how many others just browsing. I had been in here looking for three days and didn't see your post until early this morning after failing to fall asleep another night. I read your post, posted a reply took another bath and got some sleep. You deserve a meal for that Girl. But of course I would have to get some money first. It figures another woman would be the one whose story empowered me. Congrats on getting your bank account thawed out. The doomsayers had me thinking it would be forever before you would get it straight. 6 months huh? Things will continue to work out for you, cheaters never win in the long run.

I have seen in other threads the Head Grim reaper, "debtcollector", never anything meaningful, helpful or positive to say. Just saying nothing. I could feel slime across my monitor. If you are reading this, debtcollector I think you need a drink, sobriety (whichever fits), a hug or maybe just a girlfriend. I hope the Debt Collectors Consortium is paying you well to spread your gloom and doom. If you realy feel this forum is for legal advice then why are you here I wonder? Because you are spreading negativity and not very helpful. I would assume there is nothing legal about what you do, so at least warn others of the tricks and deceit that your colleagues practice every day. GEESH! Maybe you're looking for victims? I guess if I had your job I'd be miserable too. I left a great paying job in Advertising because I was tired of lying to people. I wish you well anyway.

Well I made it to the court in just enough time to get my records copied. Boy what a doozy!

Improper service is a done deal because they served my wonderful, but deceased mother, and at her best in the last 20 years or so before her death, she didn't look like nothing the creep put in his description. No other woman lives in my house and my sister don't fit the scrip either. Geesh what big liars. They should've just sent me a letter or two, served me registered mail and did things legit I would've went to the courthouse only four blocks away and I wouldn't be in this crap now.

They reaged the sol to 11/2000 and filed 11/2006 so I am still going to use expired sol defense as well. Court papers were full of lies. Wonder what the files from the OC say?

OMG, I think I will sleep tonight right after I see Survivor.

My beautiful Mother taught me alot and one thing she taught me was that if you do something just because you feel you are going to get away with it. Stop! consider the consequences to you and others and do the right thing. I wish alot of these Bottom-feeders had a Mom like mine.

 

[Kanman]

I have seen in other threads the Head Grim reaper, "debtcollector", never anything meaningful, helpful or positive to say. Just saying nothing. I could feel slime across my monitor. If you are reading this, debtcollector I think you need a drink, sobriety (whichever fits), a hug or maybe just a girlfriend. I hope the Debt Collectors Consortium is paying you well to spread your gloom and doom. If you realy feel this forum is for legal advice then why are you here I wonder? Because you are spreading negativity and not very helpful. I would assume there is nothing legal about what you do, so at least warn others of the tricks and deceit that your colleagues practice every day. GEESH! Maybe you're looking for victims? I guess if I had your job I'd be miserable too. I left a great paying job in Advertising because I was tired of lying to people. I wish you well anyway.

LOL... good for you for saying this. I could not agree more. Hang in there and fight these b*stards.

 

[ajs09876]

About Debtcollector

I don't mean to upset any one and I hope I won't get kicked out of this forum for saying this I've had my share of debt, but debtcollector is just telling it like it is. He is a debtcollector so I think he probably knows more than most what he is legally allowed to do. I think you all are mad because he's not telling you what you want to hear. Some debtcollectors are scum. But from what I've heard of debtcollector he's just telling you how the law is going to work. The bottom line is a lot of people looking for debt relief at one time in their lifes actually made this debt and are looking to get rid of it. I'm sure debtcollector has heard it all. I don't blame him for being bitter and not believing some peoples stories. You say you wouldn't want advice from a debt collector, but personally if I was in an unfair debt situation that is exactly who I would want advice from. He's the one who will know if what the CA's are doing is legal and if it will hold up in court. He gives good advice even if sometimes it's maybe in the wrong tone. Given his job, I would expect him to be a little bitter. All he said in his post was this is a legal advice forum. Not a forum to help people use excuses like expired SOL and improper service to get out of paying what they owe. I don't agree with debtcollectors going around the system and serving dead mothers and imaginary people named John. Don't get me wrong. I'm glad you will both get your day in court and work out something that works for both you and the CA's. CA's are in the business to make money and the absolute bottom line is if you would have paid your bills in the first place they wouldn't be bothering you, but don't blame debtcollector for telling you the truth even if it's not what you want to hear.

 

[Kanman]

Funny how you keep saying debtcollector is telling the truth and helping. If you go over his posts around the forum, you will notice a pattern with his so-called advice. He only states the facts that would aid a collection agency. Anything that requires trying to use the actual law, loop-holes or tricks on the debtors side, like keeping the CA tied up in discoveries for example, he will usually state, "Just pay your debt."

This person is clearly not helping and why would you want to take the advice of someone who is on the side of those working against you in a case? What you want is the support of someone who is going through something similar and the advice from someone in the legal profession.

You would be a fool to use his curt, one-sided answers.

 

[aant]

time lapse in posting

I'm with you there ajs. I wouldn't want to be his kid cuz he'd call me Troll Boy & I'd develop a personality disorder, but I seek out DC's posts because they're cogent & articulate. Makes me think maybe not all debt collectors are street urchins, just as not all debtors have IQs of 50.
Anyway all the acridity back & forth amuses me in what otherwise are not so amusing situations.

 

[ajs09876]

Just because it's not what you want to hear

I think a lot of time his answers favor the CA's because the CA's are right. If you charge up a debt somebody has the right to collect that money. Just because they bought it for pennies on the dollars does not mean they own that debt any less. Debt collections is a business. If people would just pay their bills, we wouldn't need them. His advice is often pay your debt, but if you notice he often says that when a person is trying to get out of paying a debt on a technicality or trying out a story to see if it'll get them out of paying their debts. For example, using "loop-holes or tricks on the debtors side, like keeping the CA tied up in discoveries for example" Just because he doesn't use his knowledge to bring down the collections industry does not make his advice "curt, one-sided answers" The truth is, even if you tie the CA up in discovery, if you owe the debt your still gonna wind up with a judgement (meaning no matter how long you tie them up you'll still lose) All you're going to be out is a bunch of your time. You think you're really hurting the CA? They have lawyers on retainer that work on a flat fee. Just like Debtcollector says you're much better off just PAYING YOUR DEBT. As the OP says, "I was able to get this default judgement vacated but I still must negotiate a monthly payment plan with these guys. "It still ain't over!"...for me" If the OP would've answered the phone calls and letters before the CA went to court he would've got the same thing. Without all the time in court, at the courthouse and on legal advice forums. Like I said some debt collectors are scum. (like how they serve dead mothers and imaginary relatives) but I don't think debtcollector is one of them. He seems very knowlegeable and who better to know what legally a CA can do then a debtcollector? Keep in mind, nobody's here to tell you how to go around the law and use tricks and the system to beat your debt. You want LEGAL advice, that's why you're here. Supposedly. I've read some of your other posts, Kanman, and think you might have something personal against debt collectors???? I think you should keep your advice to yourself and leave it up to the experts (like, Oh I don't know, a debtcollector) That way people who are looking for help won't tie up our legal system with unnecessary things like "loopholes" and "tricks" and will just resign themselves to the fact that they made a mistake, they owe the money and they should just suck it up and pay it. It'll just come down to that anyway. Maybe if more people did that the debt collectors wouldn't be so bitter and hard to deal with.

And to the OP. Settle with the CA. Make your payments ON TIME and the CA will leave you alone. Don't miss a payment or send it late without calling. A lot of CA's will help you out as long as you make an effort and are honestly willing to fix your debt. I owed a CA 2000.00, and I called them up, made payment arrangements and stuck to it. There were two months I had to pay late and all I did was call my CA and tell them when I would send it (reasonable amount of time and exact amount and date) and they let me be late. They are happy as long as they're getting paid, and to be truthful, if you owe the money...You should pay it. These "loopholes and tricks" were put in to place to stop harassment by abusive CAs in cases where the person either didn't owe the money or couldn't pay the money at all (living on SS paycheck to paycheck, owns nothing, basically judgement proof) They are there to help people, not get you out of your debt. (That's an unfortunate side effect)

Bottom line: Just because you don't like debtcollectors answers, doesn't make him wrong. Quit following him from thread to thread advising people not to listen to him (Because he is guy who knows the legalities of the debt collection industry and you are a person who probably just owes CA's a bunch of money) and you are giving a lot of people bad advice that they want to hear
and
PAY YOUR DEBTS quit looking for an easy way out. Sorry so long.

 

[Kanman]

That was long...too long. You are breaking this down into a moral issue. It appears that you believe everything is black and white, which with debt and the way the credit card companies are basically making people slaves to it, a regular person just trying to get by...can't. And not only does he or she find themselves in a tough job, through job loss, injury or whatever, they are now being sued for something they can not paid. I guess you can say that is their problem, but that would show your soulless rhetoric for what it is.

Then you have to look at the credit collection agencies and debt lawyers. You make them come out smelling like roses. I can tell you, and you look through this forum and a million others just like it, it is one of the most corrupt businesses, using threats, rehashing old loans out of SOL, forcing arbitration when there are no clauses to support it, etc. It is a business, a junk bond business, buying old debts for pennies on the dollar and using, more times than not, illegal means to threaten and coheres money out of people...even the elderly. Defend them all you want, there may be a few CA's on the up and up, but not as a whole.

I always like this debtors pay your bill sanctimonious think. In a black and white world where debtors are cheaters and collection agencies are just doing an honest days work seems to make sense, but that is not reality. I hope you never, ever, find yourself on hardtimes. I am not talking about just giving up all the sudden and refusing to pay what you owe. I am talking about circumstances that prohibit you from working...illness, loss of income...whatever.