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  1. #1
    Join Date
    Feb 2009
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    1

    Question How to Vacate an Old Judgment or Sue for FDCPA Violations

    My question involves judgment recovery in the State of: Iowa

    I was served by a collection attorney in '05 for an old CC debt. I did a lot of research and answered pro se asking for discovery, interrogatories etc. I thought they had to respond to me but didn't hear anything back from them and with no experience, was outmaneuvered as the next thing I find, my wages had been garnished. This doesn't seem right but it must be legal for them not to answer me and have no notice of the next court date.

    Long story short, in '06 my husband was diagnosed with terminal cancer. My job involved travel and when I needed to stay home to take care of him, I was fired in Jan of '07. He passed away two weeks later.

    No job so garnishment stopped but the attorney went back to court this past year and I have to go to court for a debtors exam in March unless I can work it out with the CA ahead of time.

    I still have no job but do have a home and 2 cars paid in full. No stocks, no 401K - just a bit of savings to live on. I obviously messed up doing this pro se to start with and am scared to death. I want to protect what little I do have and don't know how.

    Some other issues I think may have some merit:

    I've read various posts all over the web that say you have no chance of getting an old judgment vacated unless you weren't served properly. I assume that since I responded to the original lawsuit, I have no grounds to claim service was somehow improper?

    On the other hand, I've also read that a court will set aside a judgment if you can show that the judgment was entered in error, that you had good reason for failing to respond to the summons, and/or that there is a good chance that you will prevail if the judgment is set aside and the case reopened. In other words, the court is allowed to relax the requirement of due diligence where equity and good conscience require it.

    This CA is a known scumbag collector in Iowa. I'm sure he had no real documentation of the debt and would have lost the case had I known the ins and outs of the court process. Would the details I've posted above be grounds for a court to vacate?

    Finally, in my research, I came across an interesting case: Cotton vs. Asset Acceptance for FDCPA violations. Cotton was seeking review of his state court default judgment and won. Cotton’s federal lawsuit does not target the state court’s decision, but instead targets Asset Acceptance’s alleged practice of filing and threatening to file lawsuits in time-barred FDCPA claims.
    http://74.125.95.132/search?q=cache:...lnk&cd=9&gl=us

    This case gives me hope that one could bring a federal case against any CA that has violated the FDCPA even though they have already won a judgment against you.

    Your thoughts?

    Thanks for any assistance!

  2. #2
    Join Date
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    Default Re: Vacate an Old Judgment And/or Sue for FDCPA Violations

    Quote Quoting sue52003
    View Post
    I was served by a collection attorney in '05 for an old CC debt. I did a lot of research and answered pro se asking for discovery, interrogatories etc. I thought they had to respond to me but didn't hear anything back from them and with no experience, was outmaneuvered as the next thing I find, my wages had been garnished. This doesn't seem right but it must be legal for them not to answer me and have no notice of the next court date.
    The short version of that appears to be that you had a judgment against you in 2005. If this was a judgment on the merits, you would have had a limited amount of time to file for post-judgment relief or to appeal. Similarly, if this was a default judgment, you would have had a limited amount of time to challenge the judgment. You clearly had notice of the judgment, and haven't tried to have it set aside before now, so you can expect a court to find that you did not act within a reasonable time to exercise any post-judgment rights. See, e.g., the Iowa Court Rules governing default;
    Quote Quoting Rule 1.977 Setting aside default.
    On motion and for good cause shown, and upon such terms as the court prescribes, but not ex parte, the court may set aside a default or the judgment thereon, for mistake, inadvertence, surprise, excusable neglect or unavoidable casualty. Such motion must be filed promptly after the discovery of the grounds thereof, but not more than 60 days after entry of
    the judgment. Its filing shall not affect the finality of the judgment or impair its operation.
    Quote Quoting sue52003
    I assume that since I responded to the original lawsuit, I have no grounds to claim service was somehow improper?
    With your having answered the lawsuit at the time, and having failed to raise any objection to service at the time, you should not expect the court to entertain the issue now.
    Quote Quoting sue52003
    On the other hand, I've also read that a court will set aside a judgment if you can show that the judgment was entered in error, that you had good reason for failing to respond to the summons, and/or that there is a good chance that you will prevail if the judgment is set aside and the case reopened. In other words, the court is allowed to relax the requirement of due diligence where equity and good conscience require it.
    For a default judgment, read the court rule posted above. No matter what the type of judgment, there will be fixed time limits for taking certain actions, and possibly more flexible time limits for seeking other forms of relief - but even if you can find a rule requiring only that you act "within a reasonable time" the onus will remain upon you to demonstrate that you did so. You've known about the judgment for years without acting, so I don't personally see how you could convince a court that you should not reasonably have acted sooner.
    Quote Quoting sue52003
    This CA is a known scumbag collector in Iowa. I'm sure he had no real documentation of the debt and would have lost the case had I known the ins and outs of the court process. Would the details I've posted above be grounds for a court to vacate?
    You haven't shared any details that suggest that the creditor was not entitled to the judgment, or did anything improper in order to obtain the judgment - just that you were "outmaneuvered."
    Quote Quoting sue52003
    Cotton was seeking review of his state court default judgment and won.
    That's not quite right Cotton was arguing that the state court default judgment did not prevent him from pursuing a FDCPA claim against the creditor. The court, applying Illinois law, held that due to the nature of Cotton's claims they survived the state court default - but that default judgment remained in effect.

    If you are aware of any FDCPA violations against the creditor, you can try to raise them in a new lawsuit. But the statute of limitations on a FDCPA claim is one year, so any claims you may have had that preceded the 2005 judgment have long expired.

  3. #3
    Join Date
    Jun 2009
    Posts
    3

    Default Re: Vacate an Old Judgment And/or Sue for FDCPA Violations

    mrknowitall: While this is seems to be an accurate reply it certainly neither helps the poster in her legal quest, nor does it provide inspiration as to where she should legally attack.

    With 20,000 posts under your belt one would think your sizable investment in time implies that you are here to 'help' but perhaps you just like to comment and be heard.

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