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  1. #1
    Join Date
    Mar 2012
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    Default How to Vacate a Judgement in Florida

    My question involves judgment recovery in the State of:Florida.
    I received in the mail 3 days ago from a debt collection agency saying I have a judgement from 1996. I have never been served and was never aware I had a Judgement. I first checked the clerks office and yes I have a judgement however they have no files on the case as it was destroyed in 2005. Not even on microfilm. I wad advised I should respond to the collection and also file to vacate the judgement. This judgement is from Barnett Bank which is Bank of America..I have and have had for several years active accounts with BOA if I in fact owed money wouldn't they have not allowed me to open accounts with them and a good line of credit?! I have contacted several attorneys who either will not help or the few who would want a thousand to just get started. If I request to Vacate Judgement what are my chances of BOA fair chance without a lawyer?

  2. #2
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    Default Re: How to Vacate a Judgement in Florida

    Given that we have no facts about the lawsuit or the validity of the debt underlying the lawsuit, we don't have any basis to determine either if there is a basis to set aside the default or how successful such an effort might be. Generally speaking, trying to attack a sixteen-year-old default judgment is going to be pretty close to infeasible.

    It seems odd that a file that would support an active judgment would be destroyed by the court.

  3. #3
    Join Date
    Mar 2012
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    Default Re: How to Vacate a Judgement in Florida

    Should I respond to the letter from debt collection..it said I had 30a days to respond. What do you think would happen if I request to vacate judgement. If I do file a motion to vacate judgement would I have to notify the collection agency that sent me the letter or just the original creditor which is Barnett bank which is no longer around?

  4. #4
    Join Date
    May 2011
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    Default Re: How to Vacate a Judgement in Florida

    If you choose to respond, you would respond to the party which sent you the letter. Most likely they have either bought the judgment for pennies on the dollar, or they represent B of A on a percentage basis.

    I agree with Mr. Knowitall. However, you might luck out and find that the collection agency doesn't have the original court docs either. They may have been lost in mergers, and there's a small chance you might get it tossed on that basis. You didn't know about it, you have no record of it... Still, a judge is likely to go with what is on the record, which is a judgment.

    You could respond to the letter with a motion to vacate, an offer to settle for far less than the judgment, or you could ignore them and see what they do. Because we don't know how large the judgment is or what your capacity is to repay, it's hard to guess whether the credit agency will actually follow through, or whether this is a one time bluff.

    There's an old saying that the first person to mention a dollar amount loses. If you choose to try to settle, I wouldn't offer a sum certain. I'd ask them how much they would settle for and negotiate from there. If you do ask about settlement, be sure to include in your letter statements that you didn't know about the judgement, etc. Don't admit in writing that you owe the money. Treat is as a nuisance you're willing to get rid of for a small amount. If you do wind up going to court, you don't want to have admitted owing the money.

  5. #5
    Join Date
    May 2011
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    638

    Default Re: How to Vacate a Judgement in Florida

    I should have added that the very last thing you type in that letter is "This letter is for settlement negotiations only."

    Settlement negotiation documents are usually not admissible in court. This is to encourage parties to try to settle.

  6. #6
    Join Date
    Mar 2012
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    3

    Default Re: How to Vacate a Judgement in Florida

    The letter(s) I recd all in same envelope, 1 from Law group retained to represent the collection agency, states attached is a copy of the judgement, and the date it was entered against me, and "I have a balance due of $10,096..says I have 30 days to dispute and that they will obtain verification and send to me. As the debt if founded upon a judgement, a copy of the judgement is enclosed"
    The 2nd letter looks like a court doc, and states plaintiff vs defendant, the original case number and states: NOTICE OF APPEARANCE FOR POST-JUDGEMENT COLLECTIONS
    The law firm of ____ notifies the court and all parties of its appearance as counsel of record to the plantiff, and request that all future pleadings and correspondence be directed to law firm at the address listed below CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was mailed on this _ day of ____to...then my information ....Well it states "notifies the court and all parties" does that me this had been filed with the courts? I have checked and nothing has been filed with the court!
    The next form that is enclosed again looks like a court doc ..
    IN THE COUNTY COURT IN
    AND FOR HILLSBOROUGH COUNTY
    FLORIDA
    Plantiff vs Defendants

    STATE OF GEORGIA
    COUNTY OF FULTON
    Before me personally appeared this date___ and its blank (no date entered) Then name of rep of collections agency. who being first duly sworn, deposes, and says
    1. that he/she is a rep for collection agency and has personal knowledge of the facts concerning this matter.
    2. that on date 1996 this court entered final judgement in the favor of the plaintiff against me for $4041
    3. that collection agency in exchange for valuable consideration paid was assigned the rights title and interest in the aforementioned final judgement from the orig cerditor barnet bank
    then its signed by rep of collections and notarized by Georgia Notary who is personally known to him.
    The next form sent is copy of judgement which dated 1996 states sum of $3902

    As I said earlier post: there is NOTHING in the files at the courts office, the only thing they have is Judgement file was destroyed in 2005, not even saved on microfilm. So how do I fight? I was never served, never knew anything about a judgement, I even bought a home last year and no judgement was mentioned....If I leave it alone and do not respond to them what could happen, If I request to vacate judgement who do I serve? Barnett Bank? they are no longer here?If I request to vacate Judgement does that start the judgement all over again? can they freeze my bank accounts and lein my property? Sry for the long post! Appreciate the advice!!!

  7. #7
    Join Date
    May 2011
    Posts
    638

    Default Re: How to Vacate a Judgement in Florida

    I think you need an attorney. No offense, but your lack of experience is showing and could lose it all for you.

    That said, if you're going to try to handle it yourself and risk it, then it says right in the letter that "all future pleadings and correspondence be directed to law firm at the address listed below."

    They are giving you 30 days to dispute which is why they may not have filed. OR, they may have filed. Clerks' offices make mistakes.

    I see two choices which I would consider.

    1. Contact them by phone and try to settle. See my posts above. They might take a much smaller amount. Let them know that there's nothing on the court record showing you were ever served, you weren't served, and you take that as a defense.

    2. Take that defense. If they file a motion, file an objection to the motion saying that you were never served, that it isn't on your credit report (probably expired?) and this is the first you ever heard about it. 16 years is a long time for them to surprise you with something you never were served and never heard about, and ask the court to vacate it for lack of proof of service and lack of court records and your lack of knowledge of it. If they have an old document saying they served, it proves nothing according to you. You deny it. You put yourself on the mercy of the court due to time and lack of knowledge and lack of proof in the court records of what actually happened.

    The 16 years of delay and the destruction of court records might not get them as a matter of law, but the judge "might" see it your way.

    If they do serve documents with the court and with you, just be sure to properly answer them in the correct form and service and filing, and quickly. Post back if that happens.

    Edit: I'm curious about something. Usually if someone already has a judgment, they go straight for garnishment/attachment and bank accounts, lien on home, etc. Their voluntary offer of 30 days to dispute makes me wonder if they have all of the documents they need, or if something else is dubious in their file.

    They wouldn't want to do that, but only by my guess, if they weren't sure of themselves and didn't want the liability of garnishing bank accounts and then getting sued.

    I wonder? If you are served with papers, I would go for discovery via subpoena duces tecum (order to appear and produce documents) and depose them and get copies of their "proof." Often a courthouse will have a place for pro se's to conduct that. If you have an attorney, she will.

    This is very curious; the 16 years, the differing ownerships, the offer of time to dispute... It's all strange in a way.

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