| Kimball, Tirey |
| Kimball, Tirey & St John LLP Out of the blue... After 9 years they forged documents and put a garnishment on my wages. they were not able to provide |
| 10th of May, 2011 by User130741 |
Nine years ago I lived in an apartment newly divorced with my three children. I was on state aid and working. The owner of the apartment complex came to the door and told me that he was raising the rent from $800.00 to $950.00 a Month only giving me 2 weeks notice. I told him There was no way I could afford that amount in such short notice. He told me to move out and give him 2 weeks rent. I gave him $400.00 and I started to move out. After 2 days I was served a three day notice. I moved out the following day. He kept my cleaning deposit of $700.00 so that was a total of $1100.00 that the owner had from me.
I thought everything was taken care of. Now it's 2011 and I have been employed at the same job for 9 years and out of the blue I recieve a court paper saying I owe Seventeen hundred dollars to this collection agency / Law Firm I called them and asked what it was all about they said I needed to pay this money to them. Because I owed money to the owner of the apartments for past rent. I asked them for proof I owed this money they had no proof. I ask then why was I not informed that there was a case against me. They were so rude threating to garnish my wadges if I did not make arrangements with them to pay. I called them several times and they just treated me like I was a criminal not letting me speak interrupting me every time I tried to get information from them. I asked them for a proof of service several times or something that they could show me so I could work on this and get to the bottom of it. They could not provide me with any paperwork showing that I was served or anything saying I was contacted about this matter. It is very scary to think that anyone could just get a judgement and take money from you without showing any proof of the charges. I don't know how the law works in this matter but after 9 years you would think that they could have contacted me sooner so I could tell my side. I am sure that the judgement has to be expired by now and they would have had to go back to court and get a new one. If they knew where I worked why didn't they contact me before now? they allow me to protect myself. 2 weeks ago a police officer came to my place of business and served a garnishment against my wadges. I tried to call and ask if I could go to court a fight this and they said it's to late. I really tried to work with them and it seemed like they just wanted to argue and insist I owed money. I really feel that they forged some of the documents and was pushing for the garnishment because they did't think I would defend myself. Well they are wrong. I have reported them to the State Bar as well. |
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That's lawyers for you. You have been served with the Garnishment now correct? Go to the courthouse where the they filed, and pay for copies of everything that was filed for that case number. You are going to need to see what actually happened and what they submitted to the judge in order to get that judgment against you. Keep in mind, there might be quite a bit of paper there, and they court clerk charges about 8-12 cents per page for copies. Doing this yourself will save you some money if you decide to hire an attorney after reviewing what was submitted.
Go through all the filings and check the dates. If you live in California the Statute of Limitations is 4 years on written contracts. Meaning, that if has been more than 4 years that you "failed to pay" your rent or whatever was alleged, the statute has run, and they have no right to collect from you, or sue you. Much less garnish your wages. Check to see what they attached as exhibits perhaps they attached a copy of your lease. Hopefully you will have a copy on file somewhere.
Honestly, I would be surprised if they attached it since it has been so long, I am sure a judge would have seen that the statute ran. Unless they ;did file before the statute ran. If that occurred and you were not served or even improperly served the Summons to Appear and respond, you can file a motion to vacate the judgment in Pro Se (no lawyer you yourself). This is not horribly hard to do, however, it depends from person to person. You can always find a decent paralegal online to help you with paperwork.
if you were denied due process, not served, or improperly served, then you have the right to file a motion to vacate the judgment. Vacating a judgment is basically the equivalent of stamping a big fat red "VOID" on the judgment paperwork. When you file a motion to vacate a judgment you are basically filing an appeal to the court on the case.
Many people who file lawsuits to collect money from you in court don't follow the law. However even if the person suing you followed all the right court procedures, you can still win on technicalities.
The two biggest reasons a judgment is "won" are: A) the defendant failed to respond to the court summons with the proper paperwork in the allowed period of time, and B) the defendant failed to appear for their court date. This is calling winning by default. If you missed your court date, you may still not be out of luck.
If you receive a judgment or a writ of restitution and you believe you had a good reason for not responding to the eviction summons or appearing at the "show cause" hearing, there still may be grounds for asking the court to vacate the judgment. If the court agrees that you may have had good reasons for not responding or appearing, the court may decide to set a hearing on your motion to vacate the judgment.
A judgment is the actual court decision stating that the person suing is in the right. It issues the method to "right the wrong, " such as fines, the actions you need to take to correct the violation, or the amount of money you need to pay the plaintiff.
A writ of restitution is generally used only by landlords. It is basically a court order, in writing, that would be given to a sheriff to evict you if your landlord was trying to get you to move based on non-payment.
Vacate basically means dismiss.
The plaintiff is the person suing you.
The defendant is the person being sued (you).
The first thing you should be before preparing a motion to vacate is to look up your state's rules of civil procedure. It should spell out exactly what you need to do to file a motion. It will also tell you what reasons are valid, and may include the exact language you need to use. If you don't follow the procedures, you can get your motion thrown out on a technicality.
You must prepare a Motion and Declaration to Vacate Judgment and an Order to Show Cause.
Next, explain your reasons for bringing the motion. State your "procedural defenses, " that is, the good reason(s) why you did not respond to the summons and complaint on time or appear at a "show cause" hearing. For example:
I was not served with a summons and complaint - you need to check your state laws here. Some states say that a non-certified letter delivered by US Postal service is all that is required to properly serve a complaint. Most states, however, require that you be served in person or at least get your summons sent certified, return requested mail.
Southern California
Civil Rule 4.1 Service
a. Service of Process. Service of process, i.e., service of the summons and complaint, must be performed in accordance with Rule 4, Fed. R. Civ. P. All complaints must be served within one hundred and twenty (120) days. Any extension will be granted only upon good
cause shown.
b. Failure to Serve. On the one hundred thirtieth (130th) day following the filing of the complaint, or on the fourteenth (14th) day following an extension of time to serve, if proof of service has not yet been filed, the clerk will prepare an order to show cause with notice to plaintiff why the case should not be dismissed without prejudice and submit it to the assigned district judge for signature.
c. Instructions to Marshal. Where service of a summons and pleading is to be made by United States marshal upon a person or entity, the party at whose request the summons is issued is responsible for providing the United States marshal's office with appropriate instructions regarding the person upon whom service is to be made, in what capacity the service is to be made (official or individual), and at what address service is to be made. Failure to comply with these instructions may cause the marshal not to perform service.
d. Service of Pleadings other than Original Complaint. Service of an amended complaint, counterclaim, cross-claim, or third-party complaint, must be made upon each new party to the litigation, whether or not multiple parties are represented by a single attorney. Service of all other pleadings authorized to be served in accordance with Rule 5, Fed. R. Civ. P., must be complete when served upon the attorney for a party, if the party is represented by an attorney. Where an attorney represents multiple parties, service of one copy of a pleading, other than an amended complaint, an amended counterclaim, or an amended third-party complaint, will constitute service of all parties represented by that attorney, unless the court otherwise orders. The summons must be prepared by the attorney, or the party, if the party is proceeding pro se, upon forms supplied by the clerk, and must be presented concurrently with the filing of a complaint or petition commencing the action.
In the same space, also tell the court about your defense to the judgment (why the case would have been dismissed had you shown up in the first place).
For example:
The collection agency never responded to my request for validation, therefore never providing proof that the debt was mine under the FDCPA.
The amount of the debt exceeded the state's usury interest limits
Please note that the court will only respond to violations of existing laws.
File the Paperwork
Most likely, you will have to file your motion at the same court which granted the judgment in the first place, which means that if the judgment was granted in Anchorage, Alaska, and you now live in Miami, Florida, you will have to fly to Alaska to both file the paperwork and to attend the court trial.
Go to the courthouse with your typed document and tell the court clerk that you are filing a motion to vacate a judgment. There may be additional forms to fill out at the courthouse, and there will probably be a nominal filing fee. The clerk should know exactly what needs to be done with your paperwork, and can answer all of your questions and even help you fill out the forms.
Once your paperwork is in order, the court will notify you of the upcoming court date. The person who originally sued you (the plantiff in the original suit) will typically have 35 days to respond.
Notify The Original Plaintiff
In some cases, once the paperwork is filed the court will notify the plaintiff and/or plaintiff's attorney. Be sure to ask if the court will serve notice or if you need to, as serving the notice of summons is crucial to winning your case. If it is your responsibility to serve notice, you can hire a third-party professional service company for a nominal fee (typically around $35).
What If They Offer to Settle Out of Court?
Very often the original plaintiff in your lawsuit will come back to you and offer to vacate the judgment, especially if they blatantly flouted the laws in winning the case in the first place and have no proof, say that you were properly served, or that they violated the FDCPA, etc.
If they offer to settle out of court, you should demand that they themselves file paperwork to dismiss the lawsuit. Also demand that they notify any collection agencies they may have hired to collect money and also notify the credit bureaus of the "mistake." It is also crucial before accepting any settlement offer (in writing, naturally) that they send you copies of any paperwork received from the courts about the judgment vacation or dismissal.
What Happens at Court?
In the best of all possible scenarios, the original plaintiff will not show up for the hearing to dismiss and you will win by default. If this happens, you shouldn't have to present anything to the court and should receive your dismissal automatically, especially if the original plaintiff never responded in writing to the summons.
In the second best of all possible worlds, they show up to the hearing and are unable to disprove your reason for requesting the dismissal:
They are unable to show proper documentation that you were properly served.
They are unable to show that the debt was legal in the first place (unable to show what the correct debt amount should be, if a contract existed in the first place, etc.)
This means, of course, that you should have good documentation on the case and have it available to present in court. See Suing your Creditors.
What Happens When You Win?
You should receive a court document showing that the case was dismissed. Send copies of this document to any collection agency that's contacted you about the case and to the credit bureaus so they will remove any mention of the judgment from your credit report. Even though you demanded that the defendant do this, it only takes a few minutes and a few stamps to insure that it gets done promptly by doing it yourself.
For a sample motion to vacate, go here.
Here is another resource with case law concerning vacation of judgments. Be careful citing them, though and make sure they are applicable to your court venue (which is most likely a state court). For instance, citing a case in Texas is not going to help your case in Illinois.
http://www.amatterofjustice.org/amoj/library/0008voidauthority.htm
http://www.creditinfocenter.com/legal/VacatingJudgments.shtml |
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oops here is
Civil Rule 5.2 Proof of Service
Proof of service of all papers required or permitted to be served, other than those for which a particular method of proof is prescribed in the Fed. R. Civ.P., must be filed in the clerk's office promptly and in any event before action is to be taken thereon by the court or the parties. The proof must show the day and manner of service and may be (1) written acknowledgment of service, on the original of the copy served, by the attorney or person in charge of his office receiving a copy thereof, or (2) by certificate of a member of the bar of this court; (3) by affidavit of the person who mailed or otherwise served the papers, or (4) by any other proof satisfactory to the court. If an affidavit of mailing or of service is attached to the original pleading, it must be attached underneath the same so that the character of the pleading is easily discernible. Failure to make the proof of service required by this subdivision does not affect the validity of the service; and the court may at any time allow the proof of service to be amended or supplied unless it clearly appears that to do so would result in material prejudice to the substantial rights of any party. |
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