I just finished getting the debt judgement vacated. The plantiff didn't show up. This judgement was entered on 10/30/2008. Since it is vacated now and this judgement passes the statue of limitation in NY. 6 years. Can they re enter the judgment an...
It sounds like you succeeded in having the judgment vacated but did not get the case dismissed. Vacatur removes the judgment but leaves the case open (in which event, the Court might schedule a new conference date). Typically, if the judgment is vacated without dismissal, the Judge will give the defendant (in this case, you) a specific amount of time to then file an Answer (or a motion to dismiss). Usually, they give you 20 days. If the judgment was vacated for lack of service, then you would have to then move for dismissal for lack of personal jurisdiction. Where the judgment is vacated for lack of service forcing the defendant to make a second motion on the same issue is a bit silly, but many judges won't dismiss the case unless you have specifically requested that relief, and some of the NY courts provide pro se defendants with a standard Order to Show Cause form that does not include a request for dismissal, leading to the situation you seem to be describing. If judgment was vacated without dismissal of the case, it is critical that you put in a timely answer preserving all your defenses or make a timely motion to dismiss. Moreover, if you opt to put in an Answer, there are specific deadlines for filing a motion to dismiss for lack of service after you have raised the defense in your Answer. If the sums are significant and the case was not dismissed (just put back on the calendar after judgment was vacated) you may want to hire counsel. At a minimum, you should consider using the Brooklyn CLARO program, which meets in the Kings County Civil Courthouse and provides free guidance to consumer's being sued by creditors/debt collectors. I've included a link to them below.See question
It stems from a medical dedt back in 2009 and I hav e already paid these same attorneys 700.00. Never was contacted by them until this
The garnishment you are dealing with can only happen after you have been sued and a judgment has been taken against you. In order for a judgment to be properly taken, you need to first be served with the summons and complaint and be given an opportunity to respond to the lawsuit (typically by filing an answer or a motion to dismiss). It sounds, from your post, like you were not served (i.e. you mention that you were never contacted until the garnishment.) If you can demonstrate to the Court that you were not served with the summons and complaint the garnishment, the judgment and the lawsuit will (if the judge follows the law) all be tossed. The procedure for bringing the issue to the Court's attention is called an "Order to Show Cause". You can ask, in the Order to Show Cause that all garnishments be stayed (i.e. not go forward) until the Court hears your challenge. Although you can get the forms from the court clerk, I STRONGLY recommend that you get some help in order to file strong papers with appropriate arguments and proofs. On an $1800 judgment, it typically will not make financial sense to hire private counsel however, there are some great, free, walk-in clinics in NYC that specialize in helping people in your situation. They are called "CLARO Clinics" and exist in each of the five boroughs. here is a website: To get more info (e.g. times and locations) go to: www.claronyc.org (The clinic for folks sued in civil court in new york county, i.e. Manhattan, meets at the New York Civil Court, 111 Centre Street, Thursdays, from 6-8 PM in Room 105.
If your Order to Show Cause is successful, you will be in a much better position than if you pay to satisfy the judgment. First, you won't have to pay on the judgment. (Technically, the collector could try to refile the lawsuit but on a debt of this amount that virtually never happens). Second, if you are successful, the lawsuit will be dismissed. This will be much better for your credit than having the judgment marked "satisfied" which is still a negative credit event. Specifically, having the judgment marked satisfied (rather than having the judgment vacated and the case dismisssed) would indicate that you didn't pay a debt, got sued, and after losing the lawsuit, paid on the judgment. If the Order to Show Cause does not work out, you can always pay the judgment then.
Finally, it is a little unclear from your post, but if you are saying that you believe the judgment was taken despite the fact that you paid the debt previously, that is a game changer. If that were the case, you would potentially have claims against the debt collector and/or its attorneys under the Fair Debt Collection Practices Act and those claims would, if successful, require the other side to pay not only damages but also your attorneys fees. If that is what is going on here, despite the small size of the judgment, you can likely find a private attorney willing to get involved on a contingent or mostly contingent basis. Good luck.See question
Hello, I am hoping someone can help me. In Nov 2013 I was shopping for a car. I was refered by a friend to someone at a car dealership in queens. The guy at the dealership gave me a supposed good deal on a car so I figured I would take the offer a...
It sounds like you would have a strong claim for fraud against the dealership, as well as a potential claim under N.Y's law against deceptive consumer conduct (General Business Law 349). In addition, assuming you were planning on financing the vehicle, it is very likely in a transaction such as this one that both federal loan disclosure laws (found under the Truth In Lending Act), and state laws regarding motor vehicle retail installment contracts (NY Motor Vehicle Retail Instalment Sales Act) were violated. The existence (or not) of a Truth In Lending Act claim will be important to any attorney assessing the case, as it provides for "fee shifting", i.e. if the consumer prevails, the other side is required by law to cover the consumer's attorney's fees.
My firm has several pending cases in federal court, eastern district of new york, that involve one particular salesman, Julio Estrada, who was convicted after taking advantage of customers . . . I can't help but wonder if this was the same fellow you ran into.
In any event, although you theoretically could pursue something like this in small claims court, I would strongly recommend that you contact a lawyer with significant experience bringing auto fraud claims.See question
I OWN THE COOP IN NEW YORK STATE AND HOLD A MORTGAGE ON THE PROPERTY. I AM ELDERLY AND WANT TO SELL IT
A judgment in NY is good for 20 years. The lien is good for 10 years, but can be renewed. If the judgment is truly over 20 years old (or if the lien was not renewed after 10 years), it should no longer be valid.See question
Months ago I received a summons. The person who served it refused to listen to my statement that he must have been trying to serve my father (who is now permanently disabled from brain damage and has defaulted on many of his debt payments to the b...
you potentially have both defenses and claims against the debt collection law firm.
first, regarding defenses, it is a little unclear as to whether or not they brought the suit against your father but served you and then posted the judgment on your credit report (which sometimes happens when parents and children have the same first and last name), or whether they are simply suing you on an account for which you are not responsible. if they brought the suit against your dad but served you, he is the one who needs to file the order to show cause to vacate and dismiss. since he was not served, he DOES NOT need to show a meritorious defense or excusable neglect. where service was deficient the court lacks jurisdiction, and the degree to which he has other defenses is legally irrelevant. another option if the suit is really against your dad, is for you to file a motion for a declaratory judgment seeking an order stating that you are not the defendant. if on the other hand, the suit is against you on an account which you do not owe (because the account belonged to your father, and you had nothing to do with it) then you may technically have been served (they handed you the papers) but have both a meritorious defense (you don't owe the money) and should be able to show excusable neglect (you were told by opposing counsel not to answer). you would need to file a motion to vacate and dismiss on those grounds. in either event, I strongly encourage you to hire counsel given these facts.
the collection attorney's advice to you that you did not have to respond (followed by the plaintiff taking a judgment against you) is potentially a violation of the Fair Debt Collection Practices Act, entitling you to statutory damages of up to 1000 dollars, actual damages (which may include, for example, the fees you have to pay an attorney to help you vacate the judgment, as well as damage to your credit) and reasonable attorney's fees. the fdcpa claim is typically (and in my experience most effectively) brought in a separate federal action against the collector after the state court action has been resolved.
i am concerned from your description that the affidavit you submitted was not a proper motion and that the court might not be responding for that reason. this is something an attorney can sort out for you, and hopefully amend as necessary.
again, I strongly urge you to have an experienced consumer attorney represent you on this matter given the issues described above.See question
My mom’s was put under collection by a mistake the medical office made. She gave me that latter (I am her daughter) and I called the medical office and the collection agency to remove the debt. I showed my mom’s letter to my co-worker. She to...
What you are describing is disturbing and improper. It sounds as if your mother never hired this firm. In fact, it sounds as if she not only never signed a retainer agreement but also never even spoke with the attorneys there. If that is correct, they had no right to represent to the debt collector or anyone else that she was their client, and no right to negotiate on her behalf. Even if she were a client, a law firm cannot force a client to settle a case, or sue a client for refusing to settle a case.
Although some deceptive collection practice claims are reasonably settled for $1000 to the client and the remainder of the fees to the consumer attorney, in other instances the consumer's claims are considerably more valuable and $1000 would be a terrible deal. Moreover, the reasonableness of the $6500 to the attorneys depends on the amount of work the attorneys did. and all of this should be governed by a written retainer agreement, SIGNED BY BY BOTH THE LAW FIRM AND YOUR MOTHER.
I suggest that your mother contact a reputable consumer protection firm in her area to discuss both the nature of your claims and what has happened with this other law firm. My firm has an office in midtown manhattan, and we routinely litigate claims for clients in all five boroughs, but if you prefer to use an attorney with an office in brooklyn, i am happy to recommend someone.
--Dan SchlangerSee question
i made the purchase two weeks ago putting a down payment of 2500 hundred dollars for a 2007 Chrysler Pacificia (used) but was contacted by the dealer that the loan was not approved because my son (who they ask me to let co sign because he will be ...
What you are describing is a "yo yo sale" (i.e. the dealership pulls you back in). Unless your contract explicitly states that it is not final until the dealer finds a bank to which it can assign the contract (and in NY the dealers almost never put this language in their contracts) then what you are describing is likely illegal. You may have claims under the Truth In Lending Act (which is a federal statute) as well as state laws.
You will likely need an attorney to get the dealer to do right.
I've included a link below to an article I wrote which provides more information about this particular predatory auto lending tactic.See question
My paycheck is being garnished by a creditor even though I was never served. They also started garnishing my Paycheck last year and I had this credit card more then 10 years ago.
Improper service is extremely common in New York state. One common scenario is that you were "served" at an out of date address where you no longer lived by what is called "nail and mail" service, i.e. affixing the summons and complaint to the door of the residence, and following up by regular mail. That form of service is only proper when other more reliable methods (like handing you the papers) have failed and diligent attempts, and even then, if the papers are not served at address where you are currently residing at the time of service, service is invalid. Sadly, there are other common types of bad service in New York that involve outright fraud, e.g. pretending to have served you when no one has actually done so.
Your first step will be to obtain the court file, including in particular, the affidavit of service, which will tell you how service was alleged to have been made. At that point, you can get a better idea of what sort of attack on service is (or is not) viable. Procedurally, the process for challenging bad service is a motion called an "Order to Show Cause" seeking to vacate the judgment and dismiss it for lack of personal jurisdiction. If the amount of the judgment obtained is significant, I would strongly encourage you to hire an attorney to handle the motion, and putting together the supporting documentation.
In terms of the other comments made in this thread. 1. Although NY's statute of limitations for breach of contract is generally six years, it can be significantly shorter under a variety of situations common in consumer credit transactions, particularly because NY's "borrowing statute" may allow application of the statute of limitations of another state. 2. Also, although you should not need to establish a meritorious defense in order to prevail on a motion based upon lack of service, such a motion usually also pleads other grounds for relief from judgment that (a) require a meritorious defense in addition to lack of service, and (b) these other grounds of relief have particular time limitations in terms of the age of the judgment, when you discovered the judgment, etc. Again, these are issues that you can best address with an attorney.See question
While we were dating he used my info to get credit cards and paypal and then ended up never paying anything and left me with it.
1. It is advisable for victims of identity theft to promptly file a police report regarding the crime. In my experience, it is unlikely that the police/attorney general will pursue the issue, but you have at least shown that you acted diligently.
2. You will also need to contact the creditors and let them know of the fraud. They will likely want to see the police report and may ask you to fill out an identity theft affidavit. Be extremely careful in what you submit to them. Some creditors and debt collectors use form id theft affidavits that they have designed to get you to admit various things not in your interest (e.g. that you did not protect your card adequately, did not promptly notify them, etc.) I typically have clients skip the form provided by the debt collector and submit a non-form affidavit that states the facts of the fraud and does not contain such traps.
3. the next step would be disputing the credit report entries regarding the debts. i advise consumers to do this in writing, by certified mail, return receipt requested. You can get good form letters for this at http://www.nedap.org/resources/consumer.html#credit (nedap is a non-profit that is active on consumer issues such as this). Edit the form letter to describe your circumstances. Do not use the credit agencies' online form as it is more difficult to track what you have done, and there is less ability to describe the specifics of the situation and to attach supporting documentation. i believe that some of the online submission forms have you accept arbitration by clicking "submit" and this is not in your interest, either. attach both the police report and your letter or affidavit to the creditor regarding the theft to the dispute letter you send to each of the three credit reporting agencies.
4. you don't mention having been sued, but if you have been sued as a result of this identity theft, you will need to answer those lawsuits timely and make sure to raise all relevant defenses,including identity theft/unauthorized use of the cards.
5. Particularly if you have been sued or if the credit reporting agencies are refusing to remove the negative entries from your credit history, i would strongly encourage you to promptly get a lawyer. One great resource for finding a lawyer experienced on these topics is the "find a lawyer" feature of the national association of consumer advocates' website: www.naca.net.
Good luck.See question
In 2009 a debt collector tried to sue me for a debt that a) belonged to my ex husband,as stipulated in the divorce decree, and b) was was over the statute of limitations. The plaintiff did not win. They sold the debt, apparently, because I am ...
1. You need to file an Answer to the Complaint, raising all of the relevant defenses including statute of limitations and, if the action was previously dismissed with prejudice, "res judicata" (which is essentially the "estoppel" idea you are referring to in your post.
2. You need to do this by the relevant deadline, which will depend on when and how you were served with these papers. If you were not served properly, you should also be raising lack of personal jurisdiction as a defense.
3. Based on the facts stated in your post, you have strong potential claims against the old debt collector, the new debt collector and the new collectors attorneys for unfair and deceptive practices under the Fair Debt Collection Practices Act.
4. I STRONGLY encourage you to contact an experienced consumer protection attorney immediately both with regard to the action that has been brought against you and with regard to the potential FDCPA claims you may have. I recommend going to www.naca.net (website of the national association of consumer advocates) and using the "find an attorney" feature to get names of New York attorneys who do this work. (In interest of full disclosure, I am one of the attorneys on that list).See question