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Judgment

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Valued Member

Judgment

So I recieved an alert from my online Exquifax credit monitoring that a judgment has been added to my credit file. So I went to the clerks office and made copies of everything. It looks like they summons my sister who I no longer live with. The address they sent the summons to was never my address. I lived with her at a different address. The debt they're trying to collect is past the SOL and off of my credit report already. According to the Fair Debt Collection PracticesThey're suppose to:

Notify the consumer of their right to dispute the debt
, in part or in full, with the debt collector. The 30-day "§1692g" notice is required to be sent by debt collectors within five days of the initial communication with the consumer, though in 2006 the definition of "initial communication" was amended to exclude "a formal pleading in a civil action" for purposes of triggering the §1692g notice, [20] complicating the matter where the debt collector is an attorney or law firm. The consumer's receipt of this notice starts the clock running on the 30-day right to demand verification of the debt from the debt collector. [21]

and they're required to:

File a lawsuit in a proper venue
- a debt collector may file a lawsuit, if at all, only in a place where the consumer lives or signed the contract[24]


Since neither of these happened I should have enought reason to vacate the judgment correct? Plus it's past the SOL...

Message 1 of 20
19 REPLIES 19
Epic Contributor

Re: Judgment

You would need to contact the clerks office and let them know you never received a summons and the debt is outside SOL.

Message 2 of 20
Valued Member

Re: Judgment

I did that and they told me to call the attorney thats dealing with the suit. I'm not sure if I should do that because I don't want to start the SOL again.

Message 3 of 20
Epic Contributor

Re: Judgment

Just talking to them will not restart the SOL.  Do you know the DoFD on the account?

Message 4 of 20
Valued Member

Re: Judgment

5/2004 It was a written contract and the SOL for a wriitten contract in  Rhode Island is 5 years.

Message 5 of 20
Epic Contributor

Re: Judgment

As long as they filed the suit after the SOL expired you should be ok.  They could have filed before it expired and it is just showing up.

 

I would write them a letter instead of calling.  Let them know the debt is out of SOL and you were not properly served. 

Message 6 of 20
Valued Member

Re: Judgment

It looks like they filed suit right before the SOL expired 4/30/2009. So does this mean I can't use the "past the SOL" argument? Even though I didn't find out about the suit till a couple of months ago when the judgment showed up on my credit report? According FDCP they're supposed to notify the consumer of their right to dispute the debt and file a lawsuit in a proper venue?

Message 7 of 20
Epic Contributor

Re: Judgment

They can file up to the day SOL expires.  So it looks like you will not be able to use that.  You may for not being properly served.

 

The FDCPA says that you can send a DV letter within 30 days of receiving a dunning letter.  In that letter, you can dispute any portion of the debt and ask who the OC is.  In the course of their validation, they have to send you any papers pertaining to a judgment if one was filed.

 

Did you ever receive anything from the CA?

Message 8 of 20
Senior Contributor

Re: Judgment


@cara415 wrote:

It looks like they filed suit right before the SOL expired 4/30/2009. So does this mean I can't use the "past the SOL" argument? Even though I didn't find out about the suit till a couple of months ago when the judgment showed up on my credit report? According FDCP they're supposed to notify the consumer of their right to dispute the debt and file a lawsuit in a proper venue?


If they filed even one day before the SOL expired you lose that defense.  Even if they filed after the SOL expired, you usually lose that defense on a default judgment. 

 

You could check your state's civil procedure law to see the requirements for service of process.  If not served properly, you may be able to have the judgment vacated, though the judge could just reopen the case and let them continue against you to a new judgment.

 

If the OC was the one who sued you, the FDCPA does not require they give you the mini-Miranda.  It only applies to CAs.

IAALBNYL
Message 9 of 20
Valued Member

Re: Judgment

I've never recieved anything from the CO. The judgment showing up on my credit report was the first I've heard of it.

Message 10 of 20
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