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Question about Vacating Judgment

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MPStudio
Member

Question about Vacating Judgment

I've had this judgment on one of my credit reports since 2009. It was from an account that was opened fraudulently. I sent the OC my police report when I first learned of the theft and they ceased all collection attempts and apparently instructed the CA from doing the same. I have not been able to get this judgment removed from the credit bureau even with my police report and theft affidavit for all these years. The CA that filed the judgment is no longer in business and I was not ever able to contact them to have them vacate the judgment. It has since been substituted to another CA. I called the OC today and they have no information on it, they told me to contact the CA. I contacted the CA & they don't have much information either. They told me to get copies of the paperwork from the court and see how it was served on me and they can try to have it vacated that way. The CA said since they aren't the ones that originally filed the judgment they don't have all of that information. (not sure if it is true that they don't have any info!)

 

Anyways, I checked the case number online and am wondering if anyone knows if I can have a chance of having it vacated myself instead of waiting around for the CA to "try" to help me take care of it. Just based on the filings, it looks like there are some things that don't look right. I was not ever served with any of this, btw. Here is what the court website shows:

 

11/15/2011 SUBSTITUTION OF ATTORNEY FILED
09/21/2009 CASE MANAGEMENT STATEMENT FILED
09/10/2009 DEFAULT JUDGMENT BY CLERK
09/10/2009 HEARING DELETED - OFF CALENDAR
09/08/2009 DISMISSAL AS TO DOES 1 TO 10 ONLY WITHOUT PREJUDICE FILED. 09/08/2009 CCP 585 DECLARATION FILED.
09/08/2009 EXHIBITS IN SUPPORT OF JUDGMENT FILED.
09/08/2009 REQUEST FOR DEFAULT FILED AND ENTERED
09/08/2009 SUBMISSION FOR CLERK'S CIVIL JUDGMENT PENDING
04/13/2009 PROOF OF SERVICE TO COMPLAINT FILED
04/07/2009 OSC SET 10/05/09, 0830 AM, DEPT. 106, NOTICE FILED & MAILED * * DELETED 04/02/2009 COMPLAINT FILED - COLLECTION CASE
04/02/2009 SUMMONS FILED

 

From what I can read, it looks like there was originally a court date scheduled for 10/05/09  and then they deleted it for some reason.

Then on 09/08/2009 they requested for Default (even though there was no court hearing??)

Then on 09/08/2009 they also requested to have the case dismissed without prejudice. 

Two days later on 09/10/2009 the hearing was deleted (I still do not know what hearing, because the only hearing date I see was on 10/5 and was deleted)

Same day 09/10/2009 A default judgment was issued by the clerk. (Again, how can they request default if there wasn't a hearing??)

 

Does anyone have any suggestions? Do you think I can go in and request to vacate based on the fact that I was not ever served and that this was a fraudulent accout to begin with? Or should I just stay on top of the CA right now and see if they will vacate it?

Message 1 of 5
4 REPLIES 4
gdale6
Moderator Emeritus

Re: Question about Vacating Judgment

I would be filing motion to vacate on grounds of improper service and ID Theft fraud. You might consult a lawyer on this before you move ahead.

Message 2 of 5
RobertEG
Legendary Contributor

Re: Question about Vacating Judgment

Debt collectors dont and cant vacate a judgment.

Only the court that issued the judgment can do so.

Some states have limitations upon how long after a judgment that a motion to vacate can be filed.

 

I would recommend you consult an attorney in your state, as your questions are ones of state rules of civil procedure.

 

As for fraud, the police report should have been sent to the CRA along with a request for block of any information from your credit report related to the asserted identity theft information.  See FCRA 605B.  Chack out the sticky posts under the General Credit Topics forum for discussion of the identity theft process.

It would appear that would be your best bet for getting all information pertaining to the identity theft at least blockec from your credit report.

Message 3 of 5
MPStudio
Member

Re: Question about Vacating Judgment

I did send the Police Report to the CRA and everyone except for Experian blocked it years ago. I just sent it again to Experian and they sent back their "results" stating " If account was opened as a result of identity theft, the credit grantor may not know how to contact you to discuss this matter. The credit grantor requests that you contact them directly".

This is why I called the OC today. 

Experian will not remove this from my credit report.

 

This is what it says on my court's website regarding vacating a judgment:

If you were NOT PROPERLY SERVED with the Plaintiff's Claim (Form SC-100), you have 180 DAYS from the date you DISCOVERED there was a judgment against you to file a motion to vacate.

 

 

Message 4 of 5
RobertEG
Legendary Contributor

Re: Question about Vacating Judgment

Then you appear to have legitimate basis for filing a formal complaint to the CFPB over failure of the CRA to have complied with the credit report blocking requirments of section 605B(a)

 

Note in particular, in preparation of a complaint, that FCRA 605B(c) sets forth the conditions and procedure under which a CRA can decline to block the identity theft information.  None of the reasons listed in section 605B(c) was shown by the CRA, and thus they had no basis to decline the blockage.The CRA thus acted in an arbitrary manner that is subject to CFPB review.

Message 5 of 5
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