I filed a motion to dismiss a law suit based upon a debt being time barred. Credit card debt over 4 yrs, in FL.

Asked over 1 year ago - Spring Hill, FL

A trial date was set and i foolishly, missed it.
Of course plaintiff won a default judgment .
I filed a motion to set aside. Motion was denied and I now have a garnishment on my bank account. What can be done? I still contend that the debt was too old to collect, as stated in my original motion.

Attorney answers (3)

  1. Scott Benjamin Riddle

    Pro

    Contributor Level 20

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    Answered . The time to prove your case was the trial and you didn't show. Defendants in lawsuits generally have a list of defenses to the claims. Just as the Plaintiff has to prove their case, the defendant has to prove their defenses. Just as a Plaintiff would have lost their case had they not shown up, you lost because you didn't show up. Now, it is a brand new judgment that lasts for many more years. Assuming the appeal time has run, your options are limited. Settle or pay the debt, deal with the garnishments, liens and other collection efforts, or see a bankruptcy lawyer.

  2. Nicholas Attilio Vidoni

    Contributor Level 4

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    Best Answer
    chosen by asker

    Answered . You have 10 days from the judgment to file a motion for rehearing and 30 days to file an appeal. If you miss both of those deadlines the judgment becomes final. After that, you have limited options to vacate the judgment under Fla. R. Civ. P. 1.540 during the first year after the court enters the judgment, and even more limited options after that. In this situation, your best options to get a the judgment reversed would be through either a motion for rehearing or an appeal (if the issue were preserved for appeal). Post-judgment work to get a judgment reversed can be highly technical, and it can be extremely difficult if no appeal is filed. It is therefore helpful to your case to hire an experienced and competent post-judgment attorney.

    There is also a complex dynamic between motions for rehearing and notices of appeal. If you file a motion for rehearing, and subsequently file a notice of appeal, that subsequent notice of appeal will erase your right to have your motion for rehearing considered. Also, filing a motion for rehearing does not extend or toll the deadline to file an appeal. Therefore, if you want to pursue BOTH a rehearing AND an appeal, you should file a motion for rehearing ASAP after the judgment. Then you should immediately set that motion for a hearing before the 30 day window to file the appeal expires. You may have to have the motion considered an emergency to have it heard that quickly. If you loose the rehearing, you can have the rehearing and the judgment considered n the same appeal, but make sure to timely file your notice of appeal (30 days after the original judgment).

    Time barred debt due to the statute of limitations is an affirmative defense. If it is not properly asserted, it is considered waived and the creditor can still get the judgment.

    Some credit card cases are filed in small claims court which operate under a set of informal rules of procedure. If that is the case, a formal answer may not be necessary to assert (and preserve for appeal) affirmative defenses. A simple motion asserting the defense may do the trick, although it is always better to have it labeled as an affirmative defense.

    But if the judgment has become final, and you cannot get the judgment vacated, there are three ways to get rid of the debt: (1) settle; (2) pay it; or (3) file for bankruptcy.

  3. Cristen Heather Messina

    Contributor Level 10

    1

    Lawyer agrees

    Answered . It is generally an uphill battle to either appeal a final judgment or move to have it set aside. Depending on the amount of the judgment, it most likely would be best to pay the judgment or try to work out a payment plan. You can file a motion to set aside the final default judgment, but again, there is a very high burden you must overcome. If you are interested in pursuing this type of remedy, I suggest you consult with an attorney in your area as soon as possible.

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