Help with complicated judgment issue

[Anonymous]

This is kind of a complicated and confusing situation, so bear with me, and I'll do the best I can.  We discovered 2 weeks ago that my husband has a small claims judgment against him from September 2002, from a cc company for the amount of $2244 (which seems odd, since I thought the limit on small claims judgments in KY is $1500, but whatever).  The cc in question was stolen by an angry roommate, and since he didn't use the card he didn't discover the charges until it was too late to dispute them.  This occurred while he lived in Kentucky.  He moved to Arizona around July or August of 2002, and never received notification that the suit was being filed.  They claim he was personally served, and say they have his signature on the papers, although he had already moved from the address they have listed by the time they say he signed these, so it would have been impossible for them to actually have his signature.  We now live in California, and as I said above, we didn't find out about this unil about 2 weeks ago when we applied for a mortgage loan.  The attorney handling the account says that we now own close so $4500 with all the interest and fees, etc that have added up in the past 5 years, and that they won't show the $2244 judgment as paid until $4500ish is paid.  Another thing to toss into the mix is he did in fact settle this several months before the date of the judgment.  He had talked to the bank he had at the time, they found the payment, but they refused to send proof of the payment due to a related levy placed on his account, and they would not do so until the amount the levy caused his account to overdraw was paid.  Also, I have requested DV from the attorney, but he stated that frankly he already has a judgment and is not obligated to send us anything, and he thought that we were serious about wanting to pay it off when we contacted him.  I have requested from the court any and all documentation relating to the case, and so I am still waiting on that.  Obviously, I am outside of the 10 day appeal limit, so that is out of the question.  He has also called us 3 times in the past 5 days (and 2 of those days were weekend).  Now, I can't quite remember, but I seem to recall that practices such as these go against the FDCPA?  If you have stuck around to read this novel, any advice you can give me would be great. 

Thank you so much.

Jennifer

[Anonymous]

There are a number of legal issues raised here such as, Jurisdictional, statute of limitations, FCR etc.and some are state and some are federal. This will be a long process and you will need more than FICO board help in part because the various issues are entwined. You will not be able to handle the Jurisdictional issues yourself as they involve the laws of several states so you will have to get an attorney that specializes in civil litigation and he may have to be licensed in at least the state where the action was started and the state you are in or co-counsel with an attorney in that state. Once you have hired an attorney you can tell the attorney that contacts you to contact your attorney.

Yes, you are deff past the Appeal time for filing therefore it would probably take re-opening the case for re-hearing by the Judge that entered the verdict or another Judge currently in his place if he is no longer there. The court of original Jurisdiction over the matter, the court that made the Verdict is the only court that can re-hear the case (at this point) other than an Appeals Court. Secondly, to avoid legal fees of two attorneys in two states you may want to call an attorney in the state having original Jurisdiction for a free consultation over the phone before hiring him. Thirdly, since this case is about 5 years old and if it's been on your credit report for 5 years is will drop off in about 2 more years and it may be easier to just let it drop off. 

The attorney in possession of the Judgment is looking for information to use against you such as, finding out where you or hus work to garnish or where you have a bank account to lien against or what assets you have and you do not have to talk to him. In most states he can then motion a court to bring you in for supplemental proceedings where they set up a time an date at his office with a court reporter to ask you questions about what assets you have, at this point you would need a local attorney and your attorney may then claim local Jurisdiction over the matter and perhaps attempt to re-open the case at least as it relates to limited matters, if not all matters; Or, if you do not show up he may motion a court for and Order to Show Cause why you should not be held in contempt of court, this also may be looked at as an admission of Jurisdiction by him; Or, conversly your defense for not showing up would be that this court does not have Jusidiction in this matter. I either event, the issue of Jurisdiction is raised within a local court, however, he decide not to take this course of action at all. 

Basically, it appears that you want your day in court and to be heard and this takes establishing Jurisdiction of a court however, this does not mean it is likely a winable case for this you can contact an attorney to help you determine your positive outcome chances. That is, why waste a lot of time and money for perhaps the next 24 months if you are going to wind up with an un-enforceable Judgment in two years anyway.

So, there are a variety of procedural as well substance issues involved therefore making it necessary to have a competent attorney resolved these matters for you.

What I have addressed herein are known procedure options commonly available to the general public and this is not legal advice and any interpretation to the contrary is expressly denied.

Peace. 

[Anonymous]

As Patience said, the complexity of this demands an attorney. Here are a couple of sources.
http://www.naca.net/find-consumer-protection-attorneys/
http://www.myfaircredit.com/s/national-coverage-map/california

Find one near you and chat 'em up. Try to get an appointment in their office and bring ALL supporting docs.

Double check to be absolutely certain the guy claiming to be an attorney truly is an attorney. If he's not, then he's a CA or JDB and he's lying and you've got him on a violation. But since there's a judgment, odds are good he is a lawyer. Check this link anyway.
http://www.ishereallyalawyer.com/

Does DH have any proof of when he moved from KY to AZ? Copy of a lease showing the date he signed it? Might be able to contract Arizona DPS and request a records check over the phone. They might be able to say when he obtained an AZ Driver's License.

Not sure whether there's an SOL on judgments in KY for getting them vacated, but I suspect there probably is. If he was never served, then that's almost always grounds for getting the judgment vacated. Trouble is, it's 5 years old and in KY. 5 years old and in your home state might be a different story.

Which practices were you thinking to be a violation of FDCPA? Calls on the weekend are fine. 3 calls in 5 days is also in all likelihood allowed.

When did DH move from Arizona to California?

There's also the urgency of the mortgage, or so I presume. On a $4500 debt from a $2244 judgment, I daresay the lawyer would accept a lump sum settlement. Exactly how much, not sure. For argument's sake, let's say he'll take $2500 to settle it. It would be paid, and that would satisfy most prime lenders presuming you're in prime FICO territory. However, it's still a judgment and unless the lawyer were willing to vacate the judgment (which ain't likely), the paid judgment will remain. For how long is anyone's guess because of the complexity of such things.

You definitely need a lawyer.

[Anonymous]

Thank you for the links, I will check them out.  I don't think the guy himself is a lawyer, but he is definately from a legitimate law firm (Weltman, Weinberg & Reis).  They have now called 5 times, in the last 7 days, the only 2 he didn't were weekend days.  I checked, and in California, there are no specific limits on the frequency of calls, it just states that anything that can be determined as annoying or harassing.  I believe he does have a lease, but the time they claim he was served was just before he actually moved to AZ, he was still in KY, staying with a friend.  BUT his lease was up at the house he was renting, and I'm positive that the landlord will verify that.  As far as our mortgage goes, we have fair credit ratings, I think a 644 average between the 2 of us, and perfect credit history for the past 4-5 years.  But just the word judgment on a credit report I think kind of scares more lenders.  Still waiting on the court to send documentation, but so far nothing.  I spoke to this guy again today, and amidst a lot of shouting (from his end) he is still refusing to validate anything, or send ANY documentation.  I tried calling some attorneys today with no luck.  No one handles this type of situation, it seems, but hopefully I'll find someone.  Thanks for your advice, both of you.  Hopefully we can get this sorted out before he puts a levy on our bank account or something.  Can he do that?  Thanks again.

Jennifer

[Anonymous]

Yes, he can use the Judgment to get to your bank account if he knows where it is. A Judgment is a Court Order. It is obviously possible to open a second or third bank account at other banks (asset protection).

Any collection phone call can be considered harassment. It is a matter of interpretation of the call receiver.

A hearing can be vacated a judgment can not.

You will find an attorney it just has to be the right one.

Peace.

[Anonymous]

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Patience wrote:

A hearing can be vacated a judgment can not.

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Uh, not true. Judgments can be vacated. Rules vary by state.

[Anonymous]

You won't be able to get a mortgage until the judgment is paid or vacated and removed from the public record. This is because judgments (like tax liens) are liens against any real property you may own; if you were to get a mortgage and default, the judgment would be paid before the proceeds of a foreclosure sale were distributed to the mortgage lender. (And if you were to sell your home, by law the judgment would need to be paid before the proceeds were distributed to you.) That's why lenders get so jumpy about judgments. You do have a really complicated issue. And I bet the more you tell the mortgage lender about the issues, the cloudier their eyes get. I don't know what would scare them off more -- a judgment or the jurisdictional issues. This law firm that is going after this money sounds determined. They must think you are trying to hide assets. You know, some law firms do hire collection agents who do nothing but go after judgments. Also, don't forget that this judgment will show up on any background checks that your husband may have (including for employment). And since judgments cannot be removed from the public record (absent a court voiding or vacating the judgment), it will remain on your husband's record for 10 years and can be renewed every 10 years. Eventually you are going to have to do something about it. So, why not now when the events are relatively fresh. The first thing you need to do is to get all corroborating evidence together. Try to find out if there are receipts for gasoline, etc., that your husband may have used at the time of service of process that show he was actually in another town. It's a long shot, but that's the kind of thing you are going to need. You also need to get your list of witnesses in order (names, addresses, telephone numbers). I agree with others that this is something you cannot handle on your own and it is going to take time to get some resolution. If you can't afford a lawyer, call your local legal aid society. If you don't know how to get in touch with the legal aid society, call your local bar association and ask them where to call. On the other hand, you may just want to pay it off and be done with it. Here's a suggestion on how to handle the telephone calls from the collector: don't avoid the calls and don't fail to answer your phone. Answer the phone and tell the person that you don't want to talk to them. Then hang up. If he calls back right away or a couple of hours later, that's harassment. You can use the phone records from the phone company to prove that he was making frequent harassing calls. If you get them on that, you could be looking at getting treble damages - that might pay for the judgment. So the next time the phone rings, instead of cringing, just think of it as a chance to win the lottery! Be pleasant, don't scream, but make it clear that you don't want to talk to him. Don't get into a detailed, long conversation and don't try to straighten this mess up over he phone. It can't be done over the phone -- at some point you are going to have to go back to court. So don't even try to have a conversation with this guy. But don't not answer the phone. Answer, say hello, and after he identifies himself tell him that you are talking to an attorney and your attorney will be in touch with him. Then hang up. PS: If your husband was actually in town on the day of service of process, you are going to have a difficult time getting this judgment voided because technically he could be anywhere in the town and receive service of process (work, restaurant, etc.) -- it did not have to be served at the home where he was no longer living.

Message Edited by hopeful on 07-27-2007 09:06 PM

[Anonymous]

Californians also have the benefit of the Robbins-Rosenthal Fair Debt Collection Practices Act, aka RFDCPA, aka the California FDCPA, aka California Civil Code Section 1788.
http://www.privacy.ca.gov/code/cc1788-1788_33.htm

I'm given to understand there's a lot of caselaw, so you'll wanna talk with a lawyer to find out whether there's any protections dealing with your particular situation.

If you decide to pay it "just to be done with it", I suspect it's likely you can settle it for less. And I wouldn't pay it before talking with a lawyer.

[Anonymous]

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@Anonymous wrote:

As Patience said, the complexity of this demands an attorney. Here are a couple of sources.
http://www.naca.net/find-consumer-protection-attorneys/
http://www.myfaircredit.com/s/national-coverage-map/california

Find one near you and chat 'em up. Try to get an appointment in their office and bring ALL supporting docs.

Double check to be absolutely certain the guy claiming to be an attorney truly is an attorney. If he's not, then he's a CA or JDB and he's lying and you've got him on a violation. But since there's a judgment, odds are good he is a lawyer. Check this link anyway.
http://www.ishereallyalawyer.com/

Does DH have any proof of when he moved from KY to AZ? Copy of a lease showing the date he signed it? Might be able to contract Arizona DPS and request a records check over the phone. They might be able to say when he obtained an AZ Driver's License.

Not sure whether there's an SOL on judgments in KY for getting them vacated, but I suspect there probably is. If he was never served, then that's almost always grounds for getting the judgment vacated. Trouble is, it's 5 years old and in KY. 5 years old and in your home state might be a different story.

Which practices were you thinking to be a violation of FDCPA? Calls on the weekend are fine. 3 calls in 5 days is also in all likelihood allowed.

When did DH move from Arizona to California?

There's also the urgency of the mortgage, or so I presume. On a $4500 debt from a $2244 judgment, I daresay the lawyer would accept a lump sum settlement. Exactly how much, not sure. For argument's sake, let's say he'll take $2500 to settle it. It would be paid, and that would satisfy most prime lenders presuming you're in prime FICO territory. However, it's still a judgment and unless the lawyer were willing to vacate the judgment (which ain't likely), the paid judgment will remain. For how long is anyone's guess because of the complexity of such things.

You definitely need a lawyer.

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Thanks much