FAQ regarding judgments

[dixiedrifter]

Q: What is a judgment?

 

A: judgment is in its simplest terms a decision by the court between a legal dispute between two or more parties.

 

Q: Can a collection agency garnish my wages or put a lien on my house?

 

A: Not without a judgment.

 

Q: What is a summons?

 

A: A summons is a notification that a case has been commenced and that the defending party must appear before the court to defend the case.

 

Q: What is a default judgment?

 

A: A default judgment is simply that... when a party has been served with a summons and they fail to respond to defend the case, the court automatically rules in favor of the party who filed the complaint.

 

Q: How long is a judgment good for?

 

A: Sometimes a very very long time depending on the state. 5 years is about the shortest, with some states over 20+ years.

 

Q: What is a complaint?

 

A: A complaint is what the plaintiff files with the court. It is an overview of the legal case. A complaint explains the background of the case for the court and what damages have been suffered.

 

Q: What steps must a plaintiff go thru before getting a judgment?

 

A: The first step is that the plaintiff files a complaint with the court clerk. (Note: in some jurisdictions such as New York City the plaintiff sends the complaint to the defendant first, then files with the court). The clerk then issues a summons to the plaintiff. The plaintiff hires a process server, sometimes the sheriff's department, to deliver the summons to the defendant. This process is known as getting served.

 

After the defendant has been served, the sheriff or plaintiff completes a certificate of service swearing that the complaint has been served upon the defendant and returns both to the court.

 

The defendant must then file a written document called an answer within 10-30 days after being served with a summons.

 

If the defenant files an answer, then the next step is usually a pre-trial conference. This is where both the plaintiff and defendant sit down and write out an outline of how they intend the case to be played out.

 

After the pre-trial, then discovery is initiated. This is an exchange of information between the parties. Discovery consists of three components. The first is admissions. This is where one party requests that the other party admit to something. The next is request for production of documents which is pretty much self explanatory. Finally there are interrogatories which is a long term for questions.

 

After the discovery period has been completed comes motions for summary judgments and evidentiary objections. A common tactic is to file a motion for summary judmgent and hope the other party does not respond, or responds improperly, resulting in a summary judgment. Evidentiary hearings are where one party seeks to suppress evidence based upon things such as hearsay.

 

The last step is the trial itself which results in a judgment.

 

Again, all steps are governed by the rules of the court known as rules of civil procedure and may vary depending on your location.

 

Q: Will sending a Debt Validation letter stop a lawsuit?

 

A: The answer is no but it can't hurt. Nothing in the FDCPA is meant to prevent the filing of a lawsuit against a debtor. The FDCPA even states that. At best a DV could possibly be used to get a FDCPA violation. Generally, the best bet is to use Discovery against the JDB or whoever and force them to prove their case. Discovery is a court ordered process and if a party fails to respond sanctions can be granted. This goes for both way for the plaintiff and the defendant. Simply put, Discovery is infinitely more powerful than a Debt Validation letter.

 

Q: I've been served with a debt that is mine, do I have any defenses?

 

A: Yes, there are a plethora of defenses. Most common is the statute of limitations (SOL). Even if the statute of limitations does not apply the burdon for proving a case lies with the plaintiff.

 

Q: Help, I'm being sued by an original creditor, what do I do?

 

A: Unfortunately there is not much you can do. Unlike JDB's OCs have access to just about ever single shred of evidence that could be produced, and will produce it in a heartbeat if needed. In fact, the best I can recall is that only two creditboard'ers have beaten OC's, the first was when the OC screwed up on Uniform Commercial Code, and the second was with Crap1 by successfully "importing" the statute of limitations from another state using a choice of law provision in the credit card agreement. Best adivise is to just try and become judgment proof or file bankruptcy if one cannot live with a garnishment.

 

Q: Help, I've just found out I have a default judmgent and I was never served a summons, what do I do?

 

A: You will have to petition the court with a motion to vacate. This is a court formatted document that explains why the judgment should be set aside. If successful, the judgment will be set aside and you will have to start the litigation process from back to square one by filing an answer.

 

Q: Should I hire a lawyer?

 

A: The answer is yes! Generally you will be able to accomplish much more with an attorney than without. But, there is a downside and that is finding one and paying for one. Finding an attorney willing to fight a debt collection case can be very very difficult. Most phone book lawyers will either attempt to settle the debt or provide little help. They simply do not want to put in the work required. One option is to look up NACA and get them to refer a consumer attorney.

 

The other issue is cost. It can cost more to defend the average lawsuit that than the amount of the lawsuit itself.

 

One alternative is to try and get the attorney to provide services on an as needed basis for such things as procedural questions and reviewing pleadings. Most lawyers do not want to go this route due to malpractice liability, but it may be possible to get them to agree if a release of liability form is signed.

 

Q: When does the SOL apply?

 

A: The SOL varies by location. Each state has its own SOL varying between 3 and 15 years and the statute of limitations varies depending on the type of debt. Generally most states have an oral statute and a written statute.

 

Q: Where can I find a list of SOL's?

 

A: WhyChat has a very exhaustive list of SOLs which can be found at whychat.5u.com

 

Q: How do I know which the written or oral the statute of limitations applies?

 

A: There is no good answer. Unless the statute is clearly spelled out, many times a debt collector will argue that a credit card agreement is considered a written agreement. Some on the consumer side say that because the federal Truth in Lending Act defines a credit card agreement as open ended, the shorter oral statute should apply. Of course, local judges are basing their rulings on state law and are biased towards JDB's. To make matters even more complicated it is theoretically possible to have an open ended agreement in writing provided all the components to satisfy the statute of frauds are in place. The only sure fire way to get the shorter SOL to apply is to take the agreement out of play using a combination of discovery and motions to strike.

 

Q: What is this affidavit thing and how can someone just swear that I owe a debt?

 

A: Affidavits are JDB's number one form of evidence. By simply swearing that a debt belongs to someone, its more than enough to get a default judgment in most cases since most defendants do not ever contest the allegations. Affidavits are also dirt cheap and easy to get since they are manufactured evidence.

 

Q: How do I defeat an affidavit?

 

A: One counters an affidavit by filing their own affidavit denying the debt. This affidavit is set up in a graduated matter so if one denial is proven by the JDB, then the next denial in the affidavit will hopefully stop them. This layered approach is highly effective. An example is "I deny that this is my debt, and should the plaintiff establish that the debt is mine, I deny that the Plaintiff lacks standing to sue, and should the plaintiff establish that the debt is mine and that they have the standing to sue, I deny that the amount being demanded is correct". An affidavit of denial also serves one other very important purpose, it prevents a majority of motion for summary judgments from being granted if the defendant has not screwed up in answering discovery requests.

 

To completely destroy an affidavit, one must file a motion to strike. A motion to strike is simply where one requests that the court take something out of evidence because it is inadmissable due to a technicality. In the case of an affidavit, they are clearly hearsay evidence made by some hourly employee and a rubber stamp notary public. The have no idea what they are testifying to other than what numbers are showing up on their computer screens.

 

Unfortunately, most judges do not know that and take the affidavits for face value. Generally the standard used by judges is that all motions are considered most favorably in light of the non-moving party. To counter this, one must lay a foundation using discovery. An example of this is to get the JDB to admit that the affidavit writer does not have personal knowledge of the debt. Of course, the JDB will deny the request for admission. But, if one is smart they can corner the JDB by using interrogatories and requests for production of documents. An example would be to ask "If Plaintiff denies Defendant's request for admission #1 please identify all documents and records used by the AFFIDAVIT WRITER NAME when createing the affidavit" and "Please provide all documents and records used by AFFIDAVIT WRITER NAME when creating the affidavit". JDB's generally don't have any evidence, so this may effectively force them into providing an admission. If they admit that the affidavit writer does not have personal knowledge of the debt the motion to strike will go thru like a knife thru hot butter.

 

Q: Can I strike a credit card agreement?

 

A: Yes you can. The first step is to look at the agreeemtent itself. Double check the copyright date. If the copyright date occurred AFTER the account was charged off, you can motion to strike it fairly easily as irrelevent. Most of the time again it helps to use discovery to lay a foundation as to why the agreement should be stricken. A simple interrogatory asking "Please identify when they account was charged off by the original creditor" will give you the answer you need.

 

Another way to attack a credit card agreement is to use lack of foundation. Credit card agreements are generic by nature. Usually there is nothing in the agreement that ties a specific agreement with a specific debtor, ie the debtors name and account numbers are not mentioned. The JDB will swear up and down that the OC sent the agreement, but since they are a third party that testimony is also hearsay and can be stricken if the defendant speaks up at the hearing. A counter for this is to send an admission asking "Admit that plaintiff aquired the alleged debt was charged off." This establishes that the Plaintiff is indeed a third party and lacks personal knowledge to testity that the agreement was sent.

 

To be continuted at a later time because it is time for Dixie to go to the bar, put on his beer goggles.

 

Please note that this is incomplete and that the next update will cover settlements and other topics. In the mean time, if anyone has a question that is not covered, please ask it and I will answer it as soon as I sober up, provided of course I have not chewed off my arm in the morning to keep from waking said whore up while I escaped.

Edited June 14, 2008 by breeze
bad stuff

[powers64]

WOW!!!! Dixie you earned that beer! :clapping:

 

Thanks for a great post!

[dixiedrifter]

To resume...

 

Q: Help I've been sued, how do I negotiate a settlment with the Plaintiff?

 

A: Unfortunately once you have been sued, the Plaintiff has very little incentive to settle for a lesser amount. As previously mentioned, a judgment is good for anywhere from 5-20 years. The chances of a person getting a job (with wages to garnish) or moving (which generally requires paying off a lien) within that timeframe are quite good. As such, most Plaintiff's are more than happy to rest on their laurels and wait till the time is right to strike... all the while accrueing a interest rate higher than just about any investment in the market... for all intents and purposes they wont budge on the beginning unless its for payment in full or very close to it.

 

Things change when a person decides to fight a judgment. Think of it like this, a settlment is more or less like insurance. For a party to accept a settlment, they either have to think that getting the judgment will cost more in attorney fees than it is worth, or, that they are going to lose in court. For a defendant to immediately offer to settle after being sued shows a serious sign of weakness. Lawyers can smell fear and blood from a mile away... that said one should never offer to settle until Discovery has begun.

 

Also keep in mind that how well you fight (write your pleadings) is directly proportional to how low of an offer they take. The better your pleadings, the more motions you file, the more crap you put them thru the more they will want to get rid of you and hopefully the less that they will take. I've actually seen a JDB settle for 10% before just to recoup their attorney fees.

 

On the other hand, if a JDB manages to come up with evidence such as statements or an application, the tables can turn quickly. Like I said before, the best time to settle is right at the beginning of the discovery phase after you have sent them your discovery. At that point they don't know what they are going to be able to get from the OC, if anything, and if they know your on top of your game they are more likely to take what they can get.

 

Q: What should I offer as a settlment?

 

Keep in mind these are just general rules of thumb and random numbers thrown out there. If you don't think you can fight them in court for whatever reason, start with an offer of 60% on the front end. They probably won't take it, but they might counter offer of say 80%.

 

If you slam them with a hard hitting Discovery, they might take anywhere from 10-40% to settle.

 

If you survive Discovery, and survive a motion for summary judgment, they are likely to settle for 10-20%, or not. Your chances of negotating a settlment are very low at this point if they have any evidence... then again, your chances for getting a dismissal are quite high if they don't have evidence and sometimes if even if they DO have evidence. I've seen it happen before. Go figure.

 

The best advice is to just play it by ear and go by how things feel. Nothing is guaranteed when it comes to litigation... ain't no telling what could happen... for all anyone knows the judge could of had a massive fight with his wife before coming to court or some other case and be a total ding-a-ling on the date of trial. That can work for and against you.

 

Q: Ok, I've got them to accept xx% as a settlment. Is there anything else I need to know?

 

YES! A settlment can very easily blow up in your face if you are not very careful.

 

Always make sure the terms of the settlment are in writing. If it ain't in writing, then it might as well of not happened.

 

Do not accept any document that says "consent judgment".

 

Pay with a money order or cashier's check. Do not mail your payment, pay the attorney directly. Get a reciept.

 

Try to negotiate for a "release of all claims, mature or immature, express or implied, arising from the beginning of time until the date this settlment was executeed", dismissal with prejudice, and deletion from your credit reports.

 

And the most important thing of all, NEVER EVER settle then slack off when they say "oh we will dismiss the case, don't you worry about it, you don't have to show up for court" That is the absolute oldest trick in the book. 7 out of 10 times they WILL go ahead and get a judgment, turn around the next day and file a satisfaction... if for no other purpose than to screw you over. Seen it happen one too many times. ALWAYS ALWAYS follow up, and unless you get a notification from the court that the case is to be dismissed follow up and attend the next scheduled court date.

 

Q: Should I hire a court reporter?

 

If it is small claims, then I'd say it cannot not hurt. Sometimes you run up on Flower Pot judges that are hell bent on ruling against pro se defendants... they think they are stupid no nothings and how dare they come into their courtroom and attempt to practice law.

 

A court reporter is a good insurance policy. If what the judge is saying is going on the record, such as you raise an objection and the judge improperly shoots it down, that gives you grounds for appeal should you decide to do so.

 

 

More to come....

[Guest Bree82]

Can you put somewhere on here

 

I filed Ch 7 Bankruptcy and included a judgment. What now?

[dixiedrifter]

Q: I filed Ch 7 Bankruptcy and included a judgment. What now?

 

A: A discharge via Chapter 7 bankruptcy voids any judgment. Most states allow judgments to be vacated should they become void. Those with discharged judgments should file a motion to vacate citing their rules of civil procedure and US federal bankruptcy code. I've only heard of one instance on here where a judge denied the motion to vacate and I'm not sure how the matter came to end. Should that happen, what to do next is beyond my scope of knowledge other than to contact a BK attorney or other legal counsel to take it on from there.

[239dyme]

Hello Newbie here,I hope I'm in the correct forum for my question I have. I have a judgemet me on my CR from Crap1 from 04. It only shows on TU. Here's my siatuation, last week I received a letter from the courts stating that Crap1 has filed voluntairly dismissmal. Can I get this removed from my CR since they have filed this or do it have to stay on record for another 3years?

[Jen23514]

Hello Newbie here,I hope I'm in the correct forum for my question I have. I have a judgemet me on my CR from Crap1 from 04. It only shows on TU. Here's my siatuation, last week I received a letter from the courts stating that Crap1 has filed voluntairly dismissmal. Can I get this removed from my CR since they have filed this or do it have to stay on record for another 3years?

 

I would start a thread, rather than asking a question in a stickie

 

 

DIXIE..... WTG!

[indigodoll]

Hello Newbie here,I hope I'm in the correct forum for my question I have. I have a judgemet me on my CR from Crap1 from 04. It only shows on TU. Here's my siatuation, last week I received a letter from the courts stating that Crap1 has filed voluntairly dismissmal. Can I get this removed from my CR since they have filed this or do it have to stay on record for another 3years?

 

 

I agree with Jen about this being its own thread, but if someone has an answer, that would be awesome b/c I have that exact question!

[doit]

Q: I filed Ch 7 Bankruptcy and included a judgment. What now?

 

A: A discharge via Chapter 7 bankruptcy voids any judgment. Most states allow judgments to be vacated should they become void. Those with discharged judgments should file a motion to vacate citing their rules of civil procedure and US federal bankruptcy code. I've only heard of one instance on here where a judge denied the motion to vacate and I'm not sure how the matter came to end. Should that happen, what to do next is beyond my scope of knowledge other than to contact a BK attorney or other legal counsel to take it on from there.

 

THANK YOU FOR THIS PIECE OF INFORMATION! I'm off to draft my motion.

Edited June 18, 2008 by doit

[doit]

Q: I filed Ch 7 Bankruptcy and included a judgment. What now?

 

A: A discharge via Chapter 7 bankruptcy voids any judgment. Most states allow judgments to be vacated should they become void. Those with discharged judgments should file a motion to vacate citing their rules of civil procedure and US federal bankruptcy code. I've only heard of one instance on here where a judge denied the motion to vacate and I'm not sure how the matter came to end. Should that happen, what to do next is beyond my scope of knowledge other than to contact a BK attorney or other legal counsel to take it on from there.

 

THANK YOU FOR THIS PIECE OF INFORMATION! I'm off to draft my motion.

 

Checked w/ the Clerks Office in my county and all I have to do is forward the bankruptcy documents (schedule, final decree, and discharge letter) with a brief cover letter referencing the case number.

[Jen23514]

Hello Newbie here,I hope I'm in the correct forum for my question I have. I have a judgemet me on my CR from Crap1 from 04. It only shows on TU. Here's my siatuation, last week I received a letter from the courts stating that Crap1 has filed voluntairly dismissmal. Can I get this removed from my CR since they have filed this or do it have to stay on record for another 3years?

 

 

I agree with Jen about this being its own thread, but if someone has an answer, that would be awesome b/c I have that exact question!

 

i started a thread if you go find it with info on your question.

[tngoose2]

Could you point in the direction of getting a good example of an Answer, Affidavit of Denial (only thing with my summons) and a good set of interrogatories? Thanks.

[nickola_tesla]

I was just notified of a judgment against me - I never received the original summons, so didn't answer, so they got a default judgment.

 

There were 2 other people listed on the complaint, one of whom was never served like me, yet I am the only one against whom the judgment has been issued.

 

I'm in the process of locating a lawyer, but in the meantime how can I protect my accounts, and what else should I know ?

 

Sorry for all the questions, but I don't see this type of thing posted anywhere else.

 

Thanks in advance for any help.

[flacorps]

Q: I filed Ch 7 Bankruptcy and included a judgment. What now?

 

A: A discharge via Chapter 7 bankruptcy voids any judgment. Most states allow judgments to be vacated should they become void. Those with discharged judgments should file a motion to vacate citing their rules of civil procedure and US federal bankruptcy code. I've only heard of one instance on here where a judge denied the motion to vacate and I'm not sure how the matter came to end. Should that happen, what to do next is beyond my scope of knowledge other than to contact a BK attorney or other legal counsel to take it on from there.

 

In some states there will be a waiting period (say a year) before the judgment can be vacated. In the meantime, it is invalid and unenforceable, but will come roaring back at full force if for some reason the discharge is revoked.

[flacorps]

Q: Help, I'm being sued by an original creditor, what do I do?

 

A: Unfortunately there is not much you can do. Unlike JDB's OCs have access to just about ever single shred of evidence that could be produced, and will produce it in a heartbeat if needed. In fact, the best I can recall is that only two creditboard'ers have beaten OC's, the first was when the OC screwed up on Uniform Commercial Code, and the second was with Crap1 by successfully "importing" the statute of limitations from another state using a choice of law provision in the credit card agreement. Best adivise is to just try and become judgment proof or file bankruptcy if one cannot live with a garnishment.

 

Some original creditors have been caught "reconstructing" statements and/or letters and attempting to pass them off as originals without explaining how they were created. Of course, if this comes out their credibility is destroyed even if the line items, etc. were accurate. Countrywide did this in BK court and went under the next week (they were bought by BofA at a fire sale price). Capital one and Discover have been known to do this. The reconstructed statements will contain anachronisms ... perhaps an address that the debtor did not live at when the bill was supposedly rendered, perhaps a paper stock that the creditor didn't use then, or a format that the creditor didn't use then, or verbiage on the statement that the creditor did not use then. Sometimes a bar code or an alphanumeric code on the statement will not jibe with what was being done at the time.

 

A creditor does not want news of this spreading ... catch 'em at it and they'll settle low or go away entirely.

 

Some creditors (like Citi) image (copy to hard disk) a photo or .PDF of everything that goes out. You will not catch them in such a bind.

[gobomobo]

I am very surprised that someone would feel that it is difficult to be an OC. We beat them on a regular basis here in PA. Just because they have some information does not mean that they automatically win. You have to make sure that you force them to follow every legal rule in the book, and prove every last detail. There is a laundry list of issues that they need to prove, and with careful observation, you can find holes. The biggest key for me is that they rarely send a witness to court. Its just their attorney and no one else. Without someone to authenticate the records, and be available for cross examination, they have quite a bit of trouble in proving their case.

[blaze.1]

What sorts of issues does an OC need to prove? Specifically, what issues does the OC need to prove in the pre-trial dispositive motions stage? Are you talking about the statute of frauds? What are the other issues that an OC must prove?

 

At trial, you mentioned that the OC's rarely send witnesses to court and thus cannot authenticate the records. Are you talking about excluding the documents as hearsay?

 

Thanks for your help. Any help would be much appreciated. I'm worried that my CC company will sue me because I owe $50k in debt. The CC company recently raised my interest rates by 10% even though I've made timely payments. I can no longer afford the monthly payments.

[flacorps]

The proportion of OCs who will win a properly-contested case varies state-by-state, courtroom by courtroom and even day by day with respect to some of the flightier judges.

 

Creditors need to prove liability (you have a contract with them) and damages (you owe them some amount of money). They need to do so by competent and substantial evidence sufficient to overcome their burden of proof. You have no fifth amendment privilege and must answer truthfully. But they must come forward with some allegations and (in many cases) some evidence (such as an agreement stapled to the complaint) before you can even be questioned.

 

Whether the judge follows all the niceties and formalities is likely the difference between the plaintiff winning and the defendant walking away owing nothing. Judges who play fast and loose will likely simply rule for the plaintiff.

[Tate74]

^

[deano16]

I need help with an arbitration, received notice from a CA (IDT Carmel Inc.) saying i have 30 days to respond. I've been told I need to wait for the 2nd letter from the NAF and then respond to them with a refusal of arbitration letter. And not to respond to the CA because it will give them proof of debt (DV) if I respond to them? If I do send a letter of refusal, who do I send it to the CA or the NAF and how do I address the issue ? Also do I need to DV the CA now or wait ? Need lots of help here, new to dealing with this process and not much time left in the 30 days they said I have to respond. Any help with this matter is much appreciated !! Thanks ps. this is for a credit card default that has been resold.

[cj123]

Help how long do you have b4 you can go to court and ask for a second chance to be heard again by the judge after a judgement? Sorta like you disagree with the answer or you have additional information, this is in illinois!

[justmetampa]

I have a question. In my situation, the plaintiff was granted the motion for summary judgment. It was sent to me with questions about my finances. My question is can I just pay them. I have the ability to pay now. If I do, does the judgment still show up on my report. Do they have to file a entry of the judgment? Can I ask them not to if I pay? I am trying to avoid anything else negative showing up on my credit.

[reconranger227]

What a great board, thanks

 

Need some help, just completed the 1-2 punch. How do I fight this remark on my credit file. "Purchased by another lender". thanks

[breeze]

Hi, Ranger. Follow me.

 

What you need to do is start your own topic - you'll get more attention. If you don't know how to do that, go here http://creditboards.com/forums/index.php?showforum=2 click the button that says "new topic" and post in the little box.

[War_on_credit]

Is it possible to have a satisfied judgment removed from my credit report?