In 2007 I defaulted on 3 credit cards, 2 of which have come off my credit report. Apparently for the 3rd I was sued in 2011, which is another issue because I was never served and wasn't aware that I was being sued. I am only learning that I was su...
There are a couple of different issues here.
1. The statute of limitations runs, basically, from the time of default on the cards until the time the suit was filed, i.e. if you defaulted in 2007 and suit was filed in 2011, then four years elapsed for purposes of evaluating whether the statute of limitations was met or not. The judgment is good in NY for 20 years and does not really relate to the statute of limitations defense. That is, if they initiated suit timely and obtained a judgment, they can contact you 10 years later to enforce the judgment without any statute of limitations problem.
2. That said, the statute of limitations may have been violated here. An attorney would need more information to figure this out. Specifically, under New York's borrowing statute, a debtor is entitled to use the shorter of NY's statute of limitations (6 years on breach of contract) and the statute of limitations of the original creditor's home state. If the original creditor is incorporated in a state with a 3 year statute of limitations (e.g. Delaware, where lots of banks are incorporated), then filing suit 4 years after default would run into a statute of limitations problem.
3. If you weren't served, you should be entitled to get the judgment vacated and the case dismissed for lack of personal jurisdiction regardless of the existence of a meritorious defense (such as, maybe, the statute of limitations).
4. If, in fact, the statute of limitations was violated, you may have a solid claim against the debt collection firm and/or debt buyer that filed the suit for filing a time barred claim.
5. Both NY state and NYC regulations require certain disclosures to be given when collectors attempt to collect time barred balances. It is not clear from the facts you have provided whether those disclosures would have been required or if they were made, but this is another issue that might give rise to FDCPA liability.See question
Hi, I've a case in New York, the collection guy collected it without my knowlege and satisfied the judgement with forged signature of mime, he took about $6000, gave more to the then attorney and send a small amount check to me, I accidentally cas...
I think various details would need to be filled in here before determining the best way forward. A couple of initial thoughts:
If the "collection guy" is someone who regularly collects debts or whose principal business purpose is the collection of debts, then you may have a cause of action under the Fair Debt Collection Practices Act, which bars deceptive and unfair tactics in connection with the collection of consumer debts. The FDCPA covers attorneys engaged in collection activity, includes mandatory fee shifting (a collector has to cover the reasonable attorney's fees of a successful consumer) and is a strict liability statute (i.e. generally speaking, it is enough to prove false statements without also proving bad intent).
In order to effectively prosecute that claim, however, it may be necessary (and in any event advisable) to first go back to the state court where the judgment was entered and have it vacated (and the case against you dismissed). Depending on the facts, you may also have claims under New York Judiciary Law Section 487, which bars attorneys from making false statements in the course of court proceedings.
In terms of whether you waived any rights by cashing the check, I think more facts are needed -- it is not intuitive to me that cashing a check sent back to you after the judgment creditor obtained the full amount via garnishment or bank restraint (if that is, in fact, what happened) would constitute a waiver of your right to challenge the validity of the judgment.
In terms of filing a police report. While forgery is indeed a crime, many police departments are, to put it mildly, reluctant to get involved in collection and other consumer disputes. If you are going to retain a lawyer, i suggest you talk with your attorney before filing the report to make sure it is worded accurately and in a way that will not adversely impact any civil case you bring under the FDCPA and/or other statutes.. In any event, it is not either/or -- you don't give up your right to file a police report by filing a civil lawsuit or vice versa.See question
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