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Frequent Contributor
Underh20
Posts: 322
Registered: ‎11-15-2008

Re: Fair Collections & Outsourcing


guiness56 wrote:

I do believe you are incorrect on this. 

 

Section 200(1)

(50 U.S.C. App. § 520)

In any action or proceeding commenced in any court, if there shall be a default of any appearance by the defendant, the plaintiff, before judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service. If unable to file such affidavit plaintiff shall in lieu thereof file an affidavit setting forth either that the defendant is in the military service or that plaintiff is not able to determine whether or not defendant is in such service. If an affidavit is not filed showing that the defendant is not in the military service, no judgment shall be entered without first securing an order of court directing such entry, and no such order shall be made if the defendant is in such service until after the court shall have appointed an attorney to represent defendant and protect his interest, and the court shall on application make such appointment. Unless it appears that the defendant is not in such service, the court may require, as a condition before judgment is entered, that the plaintiff file a bond approved by the court conditioned to indemnify the defendant, if in military service, against any loss or damage that he may suffer by reason of any judgment should the judgment be thereafter set aside in whole or in part. And the court may make such other and further order or enter such judgment as in its opinion may be necessary to protect the rights of the defendant under this Act. Whenever, under the laws applicable with respect to any court, facts may be evidenced, established, or proved by an unsworn statement, declaration, verification, or certificate, in writing, subscribed and certified or declared to be true under penalty of perjury, the filing of such an unsworn statement, declaration, verification, or certificate shall satisfy the requirement of this subsection that facts be established by affidavit.

 

I would say that if you are deployed you are unavailable to show up in court.  And if you are depolyed how are you going to know a judgment has been entered against you.  More than likely you will not. 

 

 


 

Not likely to be incorrect as I have been in SJA (JAG) now for over 25 years.

 

All the creditor has to do is state in their affidavit that they believe you are not on active military duty.  If the creditor is mistaken, it is up to the servicemember to notify the court -- best with written confirmation from the individual's commanding officer -- that the servicemember is not available to appear because of military necessity.  If the letter is written by SJA, it is best that the military attorney specify that he does not represent the servicemember so that the letter is not considered appearance by counsel.
 

Being deployed does not automatically mean you are unavailable.  If military personnel have certain non-criminal judicial proceeding pending, and their military duty "materially" affects their ability to appear at the proceeding, the SSCRA now requires the courts to grant an automatic 90-day stay when requested by the service member.  In short, there must be a military necessity and being stationed outside of the US does not automatically mean you are entitled to a 90-day stay.  

 

If you request a second stay and the court denies that stay, the court must then appoint an attorney to defend your interests in the proceeding.   This, however, is not always to the servicemember's advantage. 
 

Courts have a lot of discretion in how they handle SSCRA cases and the above represents what is minimally required.

Moderator
guiness56
Posts: 22,408
Registered: ‎01-17-2008

Re: Fair Collections & Outsourcing

It states clearly that if the defendant defaults in appearance, the plaintiff must file an affidavit showing the defendant is not in the military.

 

If the service member is deployed I find it hard to believe that they will even know a judgment has been entered much less to be able to act on it.

 

But, this is a discussion for elsewhere, not on this forum.

 

 

Frequent Contributor
Underh20
Posts: 322
Registered: ‎11-15-2008

Re: Fair Collections & Outsourcing


guiness56 wrote:

It states clearly that if the defendant defaults in appearance, the plaintiff must file an affidavit showing the defendant is not in the military.

 

If the service member is deployed I find it hard to believe that they will even know a judgment has been entered much less to be able to act on it.

 

But, this is a discussion for elsewhere, not on this forum.

 

 


That's a common misunderstanding of many people who only know about the law what they get off a website.

 

The SSCRA and a multitude of court rulings indicate a creditor must only state in their affidavit that they believe the debtor is not on active duty.  Under no circumstances do they have to show or prove one is not.  Even if you aren't familiar with the intricacies of the law, common sense should dictate that in all default judgments the judgment creditor can not be obligated to establish every judgment debtor is not in military service.  They simply state in their affidavit that to the best of their knowledge and belief the respondant is not in military service -- ESP is not a factor.  That creditors often lie should not be surprising, should it?

 

If you are legally served you should know that there are legal proceedings against you whether or not you are in the service and / or stationed overseas.  There has to be personal service under the vast majority of scenarios.  Again, if you had the legal experience you'd realize that the law requires there to be a military necessity / that your military duty "materially" affects your ability to appear.  The simple fact that you are out of the country and / or unwilling to take vacation (annual leave) is not an excuse for a serviceman or, in fact, for any respondant in a civil action.

 

There should be a copy of the ABA judicial guideline on how judges should comply with the SSCRA somewhere online.  If anybody would like a copy and cannot find one, send me a PM. 

Contributor
wildstang
Posts: 80
Registered: ‎09-02-2009

Re: Fair Collections & Outsourcing

Hello again, I contacted my lawyer and he said it was illegal and now the public record is gone and vacated. Im happy with that. waiting for my score to update next week. Any ideas how many points i will gain? It was my only PR

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Valued Contributor
IOBA
Posts: 2,658
Registered: ‎08-13-2009

Re: Fair Collections & Outsourcing

Congratulations!
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monaarts
Posts: 7
Registered: ‎05-30-2012

Re: Fair Collections & Outsourcing

Has anyone ever gotten anywhere with this company before?  Please PM me any info.  Thank you!!!

Established Contributor
2NE1
Posts: 979
Registered: ‎12-06-2011

Re: Fair Collections & Outsourcing

[ Edited ]

monaarts wrote:

Has anyone ever gotten anywhere with this company before?  Please PM me any info.  Thank you!!!


PM sent, check your inbox and good luck! :smileyhappy:


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Lasardo
Posts: 738
Registered: ‎04-26-2012

Re: Fair Collections & Outsourcing

Dealing with them now.. Have gotten the judgment off two reports but still waiting on exquifax, any contact info please PM me.
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Established Contributor
2NE1
Posts: 979
Registered: ‎12-06-2011

Re: Fair Collections & Outsourcing

PM sent! :smileyhappy:


Starting Score: 486 EQ, 529 TU, 518 EX 12/6/2011 (FICOS - lender pull)
Current Score: 595 EQ SW 1/10/13 628 TU08 1/10/2013 593 EX (BoA HP) 1/5/12
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XoMeLLyoX
Posts: 9
Registered: ‎06-16-2011

Re: Fair Collections & Outsourcing

I am currently dealing with this company for a broken lease and things they wanted to charge me that were frivolous. Can someone give me some help on these guys??


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