Vacating a judgment

Anonymous · ‎06-03-2017

Hello-

Last year my wife and I went to get a home loan and it was brought to our attention that we had a judgment against us. For the past three months the creditor has been garnising my income. The thing is that I had never received notice of this judgement. Upon looking at the court records, it appears that they had attempted to delivery a certified letter which was never signed for, and then they sent through regular mail with a certificate of mailing, which was also never received.

The question is, if I choose to fight this in court to get vacated what is the worst that can happen? Could the creditor make me pay for their legal fees, etc? Kind of scared to fight this. The original case is from 2012.

StartingOver10 · ‎06-03-2017

I moved your message so it can get more responses.

Note: it appears you have a default judgment which is automatic when you don't show up to the court hearing.

If the debt isn't your debt, then you may be able to fight it but the odds are very low that you will prevail unless you can show it belongs to someone else.

The other thing you can do is settle with the judgment lien holder if you can't vacate it. Some negotiate, some don't. If you say you are going to buy a house - they for sure will NOT negotiate - they will want every dime + interest.

Judgments last a very, very long time. 10 years or 20 years depending upon where you are and they accrue interest the entire time they remain unpaid. Better to address it now and get a Satisfaction of Judgment recorded (mean paid). Has to be recorded to not come back and bite you in the behind again in the future.

RobertEG · ‎06-03-2017

First, go to the courthouse and review the case file.

It will show how the court accepted service as having been made.

Judges know the rules, and routinely check for notice of proper service.

I would first determine the accepted method of notice before filing a motion asserting error under the rules.

Most states provide for service to be made by means other than direct receipt by the defendant if prior efforts were unsuccessful.

Publication in local newspaper is a common form of notice accepted in most jurisdictions after a prior, failed attempt to put in the hands of the defendant.

Thus, lack of personal receipt of notice is normally not the standard for error in service.

Anonymous · ‎06-03-2017

@Anonymous wrote:
Hello-

Last year my wife and I went to get a home loan and it was brought to our attention that we had a judgment against us. For the past three months the creditor has been garnising my income. The thing is that I had never received notice of this judgement. Upon looking at the court records, it appears that they had attempted to delivery a certified letter which was never signed for, and then they sent through regular mail with a certificate of mailing, which was also never received.

The question is, if I choose to fight this in court to get vacated what is the worst that can happen? Could the creditor make me pay for their legal fees, etc? Kind of scared to fight this. The original case is from 2012.

Even if you get the original judgement vacated. The debt does not go away. If you have satisfied the court during your motion and they grant the motion. The creditor can then file again and then you risk a brand new judgement.

If the debt is yours be prepared to pay it before you get another judgement.

The worse that can happen is you get a new judgement with new court costs, legal fees and whatever you owe on the debt.

You will need to contact the owner of the judgement as part of the motion to vacate. If you convince the court to vacate and the judgement creditor is there, plan on settlement right there and then. Some states vacate but immediately schedule a new event and the process starts over.