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  1. #1
    Join Date
    Nov 2011
    Location
    Northeastern Pennsylvania
    Posts
    3

    Post Vacating a Judgment for Improper Serving

    My question involves collection proceedings in the State of: New York


    I am seeking to vacate a judgment from a collection agency who purchased my Providian Visa credit card debt. The reason for my request would be improper serving. The judgment is in New York and I live in Pennsylvania.

    * lived in New York until late 1998
    * moved and lived in New Jersey until late 2002
    * moved to Pennsylvania and currently live here

    They say I was served in July 2006 and the judgment was entered January 2007 in New York at an address I lived at for the last 3 months in 1993. I received the above mentioned card and defaulted while I lived in New Jersey October 2002. The orginial balance was $350 or $375 (my credit limit).

    In December 2007 they freezed my bank account. I contacted my legal aid attorney and he sent them a letter explaining I am disabled and receiving protected income under Pennsylvania state law. Further, at an emergency proceeding in Pennsylvania I would granted my seized money back. Sure enough they gave me my money back and unfreezed the account. Although they threatened (collection agency attorney) if I did not declare bankruptcy they would seize it again. I have not done this as I do not have any assets and follow state law so they cannot seize my account no matter what (unless I get alot of money from somewhere).

    What was weird is I knew at this time about the judgment, not before. Also, I knew they did something shady and incorrect legally. Now I know I was improperly served at an address I lived at 13 years before at that time. In mid 2006 I started contacting and correcting my 3 credit bureau reports yearly. I did this to be responsible and account for my past.

    A few weeks ago I found out online I may be able to vacate this judgment on grounds of improper serving. Because it was in NY there is no statute of limitations for improper serving. For other vacating procedures it is 1 year from being served. The original summons was served to a current tenant or owner of a property I lived at over a decade previous to being served (and signed for it which confuses me).

    My question is: if I file to vacate this judgment in New York what would be acceptable proof of where I lived in 2006? I have lived at my current address since 2004. I started reporting my current address on my credit reports in April 2006 and afterwards. At that time I was on public assistance, food stamps, medicaid and seeking legal aid to appeal my disability rejection. This is why I know they were shady in obtaining a legal judgment. I had legal aid and would not have neglected the matter. I was only working on this and my health so I certainly had the time and inclination. Can the county assistance office (welfare office) and my family verify my residency? I received my Pennsylvania drivers license during May of 2006. In September 2006 I attended college and held a student job (8 hours weekly for 12 weeks). I have my 2006 tax returns but they were filed in 2007. The original summons serving was June 2006.

    I realize I need another hearing after the vacate court date for a traverse hearing. Also, I realize there maybe another court date where I get sued and statute of limitations staring again. The original judgment is $1,400. The advantage is I can be properly served and heard in a Pennsylvania court. Given past and present circumstances the outcome would be far less money or totally eliminated. I am below poverty level for many years. This particular collection agency can see how important my time is (even though for them $375 does not seem like much). They can come to Pennsylvania and be as inconvenienced as I was. Their time is worth much more than mine financially.

    Thank you in advance,
    Sandy

  2. #2
    Join Date
    Sep 2011
    Location
    OH10
    Posts
    15,332

    Default Re: Vacating a Judgment for Improper Serving

    I did this to be responsible and account for my past.
    Please tell me you have not actively been attempting to rip off this cc company for 9 years, then have the gall to claim this.

  3. #3
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    75,926

    Default Re: Vacating a Judgment for Improper Serving

    To start with, you're going to need to investigate how the default occurred. For example, did the plaintiff represent to the court that you were personally served at the address at issue, that they served an adult there who accepted service on your behalf, or did they receive a court order permitting substituted service at that address having been unable to otherwise locate you after you stopped paying your credit card and left New Jersey. If the court authorized substituted service, what was represented to the court in the petition for substituted service, what did the court order, and does the file reflect that the plaintiff took all steps ordered by the court?
    Quote Quoting New York CVP, Sec. R5015. Rule 5015. Relief from judgment or order.
    (a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:

    1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry; or

    2. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404; or

    3. fraud, misrepresentation, or other misconduct of an adverse party; or

    4. lack of jurisdiction to render the judgment or order; or

    5. reversal, modification or vacatur of a prior judgment or order upon which it is based.
    (b) On stipulation. The clerk of the court may vacate a default judgment entered pursuant to section 3215 upon the filing with him of a stipulation of consent to such vacatur by the parties personally or by their attorneys.

    (c) On application of an administrative judge. An administrative judge, upon a showing that default judgments were obtained by fraud, misrepresentation, illegality, unconscionability, lack of due service, violations of law, or other illegalities or where such default judgments were obtained in cases in which those defendants would be uniformly entitled to interpose a defense predicated upon but not limited to the foregoing defenses, and where such default judgments have been obtained in a number deemed sufficient by him to justify such action as set forth herein, and upon appropriate notice to counsel for the respective parties, or to the parties themselves, may bring a proceeding to relieve a party or parties from them upon such terms as may be just. The disposition of any proceeding so instituted shall be determined by a judge other than the administrative judge.

    (d) Restitution. Where a judgment or order is set aside or vacated, the court may direct and enforce restitution in like manner and subject to the same conditions as where a judgment is reversed or modified on appeal.
    Note that even if you can support a case for setting aside the default, I cannot promise you that the court will view your petition as timely given that you learned of the judgment four years ago and took no action during that time. But at present we lack the information necessary to do a proper analysis (something best done, incidentally, by a New York lawyer who has access to the court file from the case).

  4. #4
    Join Date
    Mar 2008
    Posts
    1,995

    Default Re: Vacating a Judgment for Improper Serving

    There was an investigation in NY state by then AG Cuomo, now governor, regarding allegations of "sewer service" in NY state a few years back. This involves process servers claiming to have served, but did not, and made up false documents claiming to have done so. See article:

    http://www.northcountrygazette.org/2...sewer_service/

    You might first check out if the firm who serviced you is one of those investigated, and the state AG would be a good place to start. Then, we might want to demand the documentation on the service, for instance, them falsely claiming to have personally served you, as an example. With the practice reported to be prevalent, I wouldn't be surprised if they pulled a fast one on you.

  5. #5
    Join Date
    Mar 2008
    Posts
    1,995

    Default Re: Vacating a Judgment for Improper Serving

    Looks like the link I cited above is inoperable. See an alternate link about the same case:

    http://longislandbankruptcyblog.com/...sewer-service/

  6. #6
    Join Date
    Nov 2011
    Location
    Northeastern Pennsylvania
    Posts
    3

    Default Re: Vacating a Judgment for Improper Serving

    I did check and the process server is currently legally licensed. It was a person not an agency who said they served me. Thank you.

    "Quoting New York CVP, Sec. R5015. Rule 5015. Relief from judgment or order.
    --------------------------------------------------------------------------------

    (a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:

    4. lack of jurisdiction to render the judgment or order; or"

    I believe it was this situation but it probably has expired by now.

    In reference to the other questions: the plaintiff represented to the court that they served an adult there who accepted service on my behalf. The plaintiff hired a process server to do this.

    I do thank you for your response and I do appreciate it. I decided not to pursue the matter as I cannot easily establish residency during June 2006. I can easily (without state agencies) establish residency starting September 2006. I did start reporting to the 3 credit bureaus in April 2006. Incidently, this is why I believe they went through with judgment proceedings. Once I started reporting they knew they could find me in a year or so. Pennsylvania is very plaintiff friendly on out of state default judgments. I looked in to this to begin with because I got annoyed that default judgments last 20 years (if renewed) in NY and are enforceable.

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