Recourse for Violation of the Fair Buying Practices Act
My question involves collection proceedings in the State of: California
Hi guys, I recently found out that I was sued and now have a judgment against me from a creditor. This was for an account back in 2007 that i defaulted in 2012 and was sued on 2014. I never was served a summons to appear in court and i'm not sure how the court allowed this to happen. Anyway, I recently found out I had a judgement on my record after checking my credit report. I went to the court where it was filed and saw the paperwork that was submitted and in the summons it says submitted service: with a description of a woman that is clearly not me. Then there is a declaration of diligence where it pretty much states they were sitting outside my house.
How can i still file a motion to vacate this judgment?
After doing research on the Fair Buying Practices Act enacted 2010 site (https://www.ftc.gov/enforcement/rule...tices-act-text)
They violated this law by not providing the original contract of the original creditor in their lawsuit. Under this Act it is considered lack of documentation. Regular billing statements are not sufficient. Also there is no standing to sue since they never had a contractual agreement with me. There are inaccurate and incomplete credit/billing statements. Also the statute of limitations has run -- Open-end accounts under California Statute Proc. Code § 312 et seq. For written contracts is 4 years.
What damages can I claim since they violated the procedures under FBPAC?
Thanks!
Re: Default Judgment in California
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Hi guys, I recently found out that I was sued and now have a judgment against me from a creditor. This was for an account back in 2007 that i defaulted in 2012 and was sued on 2014. I never was served a summons to appear in court and i'm not sure how the court allowed this to happen.
The court doesn't "allow" anything to happen or not happen. The court acts on what is put in front of it and if that isn't challenged it is deemed to be true.
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Anyway, I recently found out I had a judgement on my record after checking my credit report. I went to the court where it was filed and saw the paperwork that was submitted and in the summons it says submitted service: with a description of a woman that is clearly not me. Then there is a declaration of diligence where it pretty much states they were sitting outside my house.
OK, you admit it was your house at the time of service? Who was in your house at the time? Girlfriend? Boyfriend? Relative? Young adult 18 or over? "Pretty much states" is a meaningless phrase. What does it EXACTLY state? Quote it word for word.
CA allows a summons and complaint to be served:
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By personal delivery of a copy of the summons and of the complaint to the person to be served. Or, by leaving a copy of the summons and of the complaint at such person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left.
http://www.search-for-servers.com/pr...ng-laws/ca.htm
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How can i still file a motion to vacate this judgment?
Not sure you can. Read Section 473.5 of the CA Code of Civil Procedure:
http://leginfo.legislature.ca.gov/fa...ctionNum=473.5.
No need to go into the rest of your questions until and unless you get the judgment vacated.
Consult an attorney on how best to accomplish that if possible.
Re: Default Judgment in California
In addition to what Jack told you, the statute of limitations did not run out. You were in default in 2012 and sued 2 years later. The limitations is 4 years but it doesn't run from when you opened the account. It runs from when you failed to pay which was well within that period.
Re: Recourse for Violation of the Fair Buying Practices Act
Under Sec. 473.5 of the Code of Civil procedure, a motion to set aside a default judgment based upon a lack of notice must be filed within two years of the judgment. Past that two year window, the next opportunity to object on that basis is when the creditor seeks to renew the judgment.
Assuming that this was a debt buyer, and not the original creditor that brought the lawsuit, California's Fair Debt Buying Practices Act only applies to debts acquired after Jan. 1, 2014 -- as you were sued in 2014, it is possible that your debt was acquired before that date. The statute of limitations for a lawsuit based upon statute is normally three years, so you may be at or past that date. Damages recoverable in a FDBPA violation include actual damages, and statutory damages of between $100 and $1,000, with a possibility of recovering attorney fees if you are represented by counsel.