Judgement enforcability

[EAJuggalo]

Hello all,

My wife and I are applying for a mortgage and something came up when they ran her information.  A judgement from 2015 for a defaulted credit card.  This will obviously derail our mortgage but have a question about the enforceability of the judgement.  The suit was filed in 2014 against my wife in her maiden name, we were never served the summons or given any notice at all of the hearing.  Obviously a default judgement was entered against her, the only reason we found out about it at all was they issued a writ of garnishment was issued and they seized the funds in her bank account.  When we were mailed the writ it contained information about the judgement.  Is there anything we can do besides grit our teeth and pay it?  Looking at the court record it doesn't list an address, only the city and zip code, which was correct at that time.

[Cowboys4Life]

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@EAJuggalo wrote:

Hello all,

My wife and I are applying for a mortgage and something came up when they ran her information.  A judgement from 2015 for a defaulted credit card.  This will obviously derail our mortgage but have a question about the enforceability of the judgement.  The suit was filed in 2014 against my wife in her maiden name, we were never served the summons or given any notice at all of the hearing.  Obviously a default judgement was entered against her, the only reason we found out about it at all was they issued a writ of garnishment was issued and they seized the funds in her bank account.  When we were mailed the writ it contained information about the judgement.  Is there anything we can do besides grit our teeth and pay it?  Looking at the court record it doesn't list an address, only the city and zip code, which was correct at that time.

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Unfortunately your only recourse now is to pay it.  The underwriters are going to want that taken care of before approving a mortgage.  For anyone else reading if you discover a judgment this way and had NO knowledge of the suit you have a small window to hire a lawyer to get the judgment vacated for improper service.  If the SOL isn't expired after it is granted then they have to start all over from the begining and file again and properly serve you.  Once you let the garnishment stand you essentially confirmed to the court the validity of the default judgment.

[gdale6]

I would seek competent counsel and see what they ca do for you. Sounds like a case of "sewer service" and judgments can be vacated, this will also force whoever took the money to return it. Call a lawyer today you dont have much time on this

[jmw1]

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@gdale6 wrote:

I would seek competent counsel and see what they ca do for you. Sounds like a case of "sewer service" and judgments can be vacated, this will also force whoever took the money to return it. Call a lawyer today you dont have much time on this

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I agree that getting a free consultation with a debt lawyer is a good path to see what options are available. But it's not easy to prove improper service because it's a "he said, she said" situation without other convincing evidence. The plaintiff will allege that the defendant was actually dodging service. Not doing anything immediately after garnishment is the final nail in the coffin.  It takes weeks (and $$$) to get a hearing scheduled as well. The path of least resistance may be the options offered by the mortgage loan officer.

[EAJuggalo]

The worst part about this is that allegedly because I'm getting a Sec. 184 loan the judgement has to be satisfied for  year before they will issue the loan.  So even paying it now, we can't buy until next summer.

[bass_playr]

Hang on a second, 

You might have another option.  Proof of service is the key.  Default judgments happen all the time, and you'd be amazed how many of them happen because of intentionally faulty service.  

I would go to the court clerk's office where the case was, and review the file.  You're looking for the proof of service.  The proof of service is a document that must be filed with the court--some jurisdictions call it a return of service.  It is a paper that certifies how, when, and where the service of the summons was carried out.  Often times, it was sewer service--aptly named because the summons actually ended up "in the sewer" and they lied about ever serving you.  Many people have no idea they were ever sued until levy or garnishment happens, usually some years later.  

I would check that POS.  Absolutely.  Because you might just find that they claimed they personally served her at an address she never lived at....or at one she didn't live at when they supposedly served her.  You might find that they claimed service in a method or manner not allowed by your state's laws.  It's free to review the record and you have nothing to lose at that point.

If you do find that they lied and you can prove it, you need to have your wife file a motion to vacate judgment with that court due to improper service.  I helped someone write one of these up before, and we actually stated not only improper service but fraud upon the court.  We got his judgment against him thrown out and they were forced to go away for good due to the age of the debt.

[RobertEG]

The court issued the judgment, so was satisfied at the time of entry that proper procuedures were shown to have been followed, including proper serviice upon the defendant.

In most states, actual physical service upon the defendant is not required if prior attempts have been tried and failed.  Alternate terms of proper service are then provided for, such as by publlication in a local newspaper.

A reveiw of the case file is thus necessary for determination of how service was alleged to have been complleted before concluding that proper service was not made.

You should contact an attormey for compliance review, and for advice on whether or not any attempt now at vacature of the judgment on the grounds of admin error is still timely.

Even if service was improper, most states req

[bass_playr]

RobertEG, as always, brings a ton of knowledge to this board.  

But there's an important detail that cannot be overlooked.  Some courts will actually review to make sure that service was properly carried out.  Many, however, will not.  The reason for this is because the court, in its requirement to stay impartial, cannot fight one party's case for them.  Some things are subject to being checked out, but many are not.  I have seen all kinds of proofs of service from many people.....I've actually where the plaintiff lists the defendant's address clearly, but then states on POS that they "personally" served the same defendant at a completely different address.  Doesn't pass the smell test...but the court allowed that to go through.  Especially if the CA is trying to get a default judgment, they often use "evidence" so thin you can see through it, and because no one is there to challenge it, the courts rubber stamp them more times than not.

[EAJuggalo]

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@bass_playr wrote:

Hang on a second, 

You might have another option.  Proof of service is the key.  Default judgments happen all the time, and you'd be amazed how many of them happen because of intentionally faulty service.  

I would go to the court clerk's office where the case was, and review the file.  You're looking for the proof of service.  The proof of service is a document that must be filed with the court--some jurisdictions call it a return of service.  It is a paper that certifies how, when, and where the service of the summons was carried out.  Often times, it was sewer service--aptly named because the summons actually ended up "in the sewer" and they lied about ever serving you.  Many people have no idea they were ever sued until levy or garnishment happens, usually some years later.  

I would check that POS.  Absolutely.  Because you might just find that they claimed they personally served her at an address she never lived at....or at one she didn't live at when they supposedly served her.  You might find that they claimed service in a method or manner not allowed by your state's laws.  It's free to review the record and you have nothing to lose at that point.

If you do find that they lied and you can prove it, you need to have your wife file a motion to vacate judgment with that court due to improper service.  I helped someone write one of these up before, and we actually stated not only improper service but fraud upon the court.  We got his judgment against him thrown out and they were forced to go away for good due to the age of the debt.

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If I still lived 20 minutes from the courthouse that would be a good option.  Being 5 hours away now it really is not.  The judgement is only for $1,500.  As much as I hate to do it, I believe the more prudent decision is to pay the judgement.  It is a debt that my wife made and should be paid.  Had I known or remembered it in the last 4 years I would have had it taken care of then.