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Can a collection agency get a judgment against you without your knowledge?

Stanford, CA |

Are there known rogue ways collectors can get a judgment behind your back without notifying you? Then get into your bank account. How would you fight back against this if it were to happen?

Attorney Answers 4

Posted

When a lawsuit is filed, the court requires the plaintiff to personally serve the summons and complaint on the defendant(s). Often times, this is a difficult and arduous task. After a few attempts at personal service, the court may allow substitute service which means the plaintiff can serve notice by publishing a legal notice in a local paper or mail the summons to theast know address. This wouldn't be considered rogue, but the likelihood that a creditor plaintiff had an old or bad address is high and that substitute service would be used resulting in a defendant never finding out about a case.

As I stated, this is t necessarily rogue, so it's not illegal. However, if a defendant was truly unaware of a lawsuit there are remedies, such as a motion to set aside a default judgment. There a time limitations for such a motion, so be sure to contact someone about what your rights are if you are in this scenario.

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Posted

Miguel, what if your current address is listed on all of your credit reports? And the collector did an inquiry into them recently. But they mailed the summons to an old address anyway. Are there laws protecting people against this?

Miguel Angel Iniguez

Miguel Angel Iniguez

Posted

The court affords the protection in a motion to set aside the default. If there was no actual knowledge on your part, the statue of limitations is two years to file your motion. The court will not dismiss a lawsuit because a party believes there were unethical practices on the part of the other, even if those prove true, unfortunately.

Posted

I see this happen to many people with too much regularity. The first time that a defendant learns of a lawsuit is when their wages are being garnished, their bank account frozen, or they are notified from the county recorder's office that a judgment lien has been recorded with the county. They do this by sending a process server who really does not care (at best) or is willing to file outright false statements under oath (at worst) concerning the address where served or the person to whom the delivery was made (if at all).

I have a blog on options if this happens to a defendant, linked below. Filing a motion to set aside is often the preferred way to remove this, because if not removed, then it can grow at 10% interest and remain on the consumer's credit report until satisfied.

Robert Stempler (please see DISCLAIMER below)
www.StopCollectionLawsuits.com
www.facebook.com/SoCalConsumerLawyer
Twitter: @RStempler

NOTICE: The above statements are provided for general information purposes only and are not intended as legal advice or advice of any sort for a specific case or legal matter. If you do not have a signed attorney-client fee agreement with the Consumer Law Office of Robert Stempler, APC ("the Firm"), then until such written fee agreement is provided and signed by both a prospective client and attorney for a particular case, neither Mr. Stempler nor the Firm will represent you nor will they be your attorney in any matter and you remain responsible for retaining your own attorney and for compliance with any and all deadlines and for any statutes of limitations that may pertain to potential claims. Comments made on a public forum, such as Avvo.com, to not have any confidentiality because others may read them. If you desire a private consultation with Mr. Stempler that is confidential, please go to www.StopCollectionLawsuits.com and submit a free eCase Review. The result portrayed for a client was dependent on the facts of that case. Results will differ if based on different facts. The Firm and Mr. Stempler are a debt relief agency. The Firm and Mr. Stempler help people file for bankruptcy relief under the Bankruptcy Code.

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Posted

Robert, is a bank required by law to notify you that your account is frozen? Or that it's being garnished? Is there any recourse against the process server? The collection agency who "accidentally" mailed the summons to your previous address? When the same collection agency did an inquiry to your credit reports weeks before. And your current most recent address is listed correctly on all of them.

Robert Harlan Stempler

Robert Harlan Stempler

Posted

It is a possible violation of the Fair Debt Collection Practices Act, if this was a consumer debt. There are strict time limits on filing a case for such violations and probably would need to hire an attorney and do this in US District Court. (Please see DISCLAIMER above).

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Posted

Robert, it is a consumer debt. Does a bank still need to notify you about an account frozen or being garnished? Do you practice law in other states as well?

Robert Harlan Stempler

Robert Harlan Stempler

Posted

I only handle cases to be filed or that were filed in California. Yes, the bank is required to give written notice to the account holder of a bank levy. It is typically done my regular U.S. Mail. I am not going to post any more comments on Avvo to this message. Please contact me directly in privately, if you wish. (Please see DISCLAIMER above).

Posted

My colleagues are correct, this happens, and it happens a lot. Most often it is not the collection attorney but a dishonest process server.

The question is, what can you do about it? First, do you owe the debt? Second question, whether or not you owe it, is it worth fighting? If you feel you want to dispute the debt, then pull up the file (often in another state) and take a look at the proof of service. If for any reason the service can be shown to have been invalid, which happens more often than we would like to believe, then you have a good chance of setting aside the judgment. I have done this more than a few times.

Keep in mind that all this procedure does is set the clock back to where it was when the case started. You can be re-served, which means you will have to file your answer and defend yourself. Hence the advice that you take a good look at the amount of the debt and your possible defenses. Another alternative is to call the collection agency and work out a settlement.

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Posted

Paul, so a process server can claim they served you. Without having proof of actually doing it. Then a summons is issued anyway? Don't the courts verify if the process was done correctly? And also how would you pull up the file to look at the proof of service do you have to go to the courthouse? Are there places online to do this?

Paul Francis Easlick

Paul Francis Easlick

Posted

Yes, the court will take the word of the process server, just as it will take your word at face value. That is what a trial is for. In my experience, the defendants were not living or working where the process server said he served the complaint, or the defendant was out of state, various fact situations like that. Barring a convenient set of facts like this, simply you have to go before a judge and state your case. This will be done by way of written declaration in a motion to set aside the judgment. And, yes, you have to go to the courthouse to pull the records on this case. And, yes, you can do this online. Often as not though, the case against you was filed other than in Southern California. Pulling records could be problematic. I strongly recommend you seek the help of an attorney for this.

Posted

What you are describing is a fairly common occurrence. Debt buyers file lawsuits and file proofs of service which reflect that the defendant was "served" with the summons and complaint by personal or substitute service, but from my experience, the proofs of service are often not accurate (i.e., the process server may have passed by your house, or maybe your former house, and dropped a copy of the summons and complaint on the doorstep).

Not knowing about the suit, the defendant does not answer or take any action. Then the plaintiff proceeds to get a default judgment. From there, the creditor can take your assets including funds held in bank accounts.

The primary method for "fighting back" in this situation is to file a motion to set aside the judgment. You may have to hire an attorney to handle this. The attorney gets information from you, and usually a declaration of some kind, and submits the motion. The objective of the motion is to establish that you were never served and the judgment is void.

You should act quickly if you want to pursue that remedy.

This answer is for general information purposes only and is not legal advice. No attorney-client relationship is intended or formed by the posting of this answer. Law Office of Lisa J. Espada, Esq. (415) 504-6195

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Posted

Linda, could a person sue the debt buyer for damages in this case? Is serving someone in such a highly unethical manner violating any specific consumer protection laws?

Lisa Jane Espada

Lisa Jane Espada

Posted

Under the hypothetical situation above, I do not know of any statute that would create a cause of action. Debt collection statutes protect consumers from unethical collection activities; they do not address unethical litigation tactics, such as sewer service.

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