Author Topic: Sewer Service - Default Judgment  (Read 518 times)

0 Members and 1 Guest are viewing this topic.

delandra

  • Valued Member
  • Posts: 174
Sewer Service - Default Judgment
« on: October 17, 2017 10:25:38 PM »
(Trying to minimize any information that may "out" this debtor, so I won't be disclosing the name of the JDB, my relationship with the debtor, or the exact locality at this time.)

Background: Judgment proof debtor (100% of income from SSDI, no meaningful assets) in New York State, who may not be judgment proof in the future, as there is a pending personal injury suit that should eventually terminate in their favor for a low six figure dollar amount.

Debtor's bank was served with a garnishment order and information subpoena, from a case filed in the County Supreme Court, at the behest of a national JDB, for approximately $2,000.  Debtor's bank replied and indicated that all funds in the account were exempt from garnishment.  No freeze or hold was placed.  The bank cc'ed the relevant documents to the debtor, which was their first indication of a lawsuit and judgment.  Debtor was never served with papers at current or last known address.

At my advice, debtor contacted the Clerk of Court, to request copies of all filings in the case.  It was my intention to go through them with the debtor to see if service was proper, who was originally owed the alleged debt, etc.  To my surprise, the Clerk told debtor that service was not proper, and is sending debtor the necessary forms to get the judgment vacated.  I did not tell the debtor to ask for that paperwork and am shocked that the Court Clerk would seemingly "take sides" in this manner.  Usually they won't offer any advice at all.  Makes me wonder just how much of a bottom feeder this JDB and/or their attorney might be....

That's where things stand right now.  The debtor is not of sound mind to wage an extended pro-se legal battle, it will be detrimental to their health, they nearly had a meltdown over the cc'ed paperwork from the bank even though it was entirely in their favor, and I am on the other side of the country and unable to offer serious assistance.  They're in a small town and not likely to find a consumer attorney willing to work this on contingency.

My assumption is the JDB will go away, once the default judgment is vacated and they realize (from the bank's answer) that the debtor has no assets that can be taken, but that's just an assumption, and I worry about their eventual PI settlement being attached.  JDB shouldn't know about that, but I assume that they'll sell this debt to someone else, who will sell it to someone else, who may attempt another sewer service/default judgment attack years from now.

Thoughts on the best way to proceed from here?

Kitten

  • Valued Member
  • Posts: 2014
    • MCSD
Re: Sewer Service - Default Judgment
« Reply #1 on: October 17, 2017 11:37:20 PM »
If service really was improper, a nice Bar Association complaint for the attorney?

Is it improper to attach a motion for sanctions to the papers to vacate the judgment?

CleaningUp

  • Valued Member
  • Posts: 10408
Re: Sewer Service - Default Judgment
« Reply #2 on: October 17, 2017 11:45:23 PM »
The clerk's comment was likely a statement of clerical fact, not legal advice.

As for helping your friend a continent away, wouldn't it be better for you to help your friend to find a lawyer in a near-by town?

Long-distance UPL is not something you want to get into.


delandra

  • Valued Member
  • Posts: 174
Re: Sewer Service - Default Judgment
« Reply #3 on: October 18, 2017 01:19:18 AM »
It’s tough to explain, to someone not from this area, but the number of bad lawyers in that part of the country is significantly greater than the number of good ones.  I’ve seen it in many different aspects of the law, criminal, bankruptcy, personal injury, family, etc.  FDCPA/consumer law is a specialty practice, one that I’ve had a hard time finding practiced attorneys in major cities, so I’m not even sure where to begin when I’m not there, and I worry about the damage an incompetent attorney could do. :(

Bankruptcy isn’t an option, they don’t owe enough to make it worthwhile, so why “waste” a filing, particularly with the possibility of medical bills on the horizon?

The debtor is well and truly disabled, barely able to care for themselves, no prospect of ever rejoining the workforce.  If their future PI settlement can be structured in a way to be shielded from creditors there’s truly no reason to care about future judgments.  I don’t know anything about that sort of thing though, it’s never been something I’ve had to contemplate.
 

CleaningUp

  • Valued Member
  • Posts: 10408
Re: Sewer Service - Default Judgment
« Reply #4 on: October 18, 2017 02:01:44 AM »
Start with the phone book and then look a the records of the attorney in the on-line databases.

Calling them and interviewing them over the phone is another option.

And, unless the person you are helping has representation, they are going to have to face the courts or accept default all on their own.

You are not doing them any favors by doing the work for them. 

delandra

  • Valued Member
  • Posts: 174
Re: Sewer Service - Default Judgment
« Reply #5 on: October 18, 2017 02:47:42 AM »
I’m not doing anything for them other than sharing 101 level knowledge and telling them to take deep breaths and relax.  The only advice I’ve given to date is to request copies of the case filings and NOT to call the JDB (the debtor’s first inclination) on the phone.

Honestly, your “pull yourself up by the bootstraps” attitude in so many threads here is counterproductive and seriously rubs me the wrong way.  I’m not trying to do the work for them, this is the last thing I want to deal with.  I’m simply trying to explore options, determine if they’re apt to remain judgment proof when their settlement happens, and keep them from shooting themselves in the foot.

Flipping through the proverbial “yellow pages” is a waste of time.  There are no attorneys in a three hour radius that would take this on contingency.  At this point there’s nothing to take, no obvious FDCPA violation or other low hanging fruit, so they’d be paying a retainer, which they don’t have, even if they could find a good attorney, which is a roll of the dice.  Think West Virginia, but more rural, more burnt out, and more brain drained.  The only good thing, if you can call it that, is that the JDB’s lawyer probably comes from the same pool of local incompetence.


fisthardcheese

  • Valued Member
  • Posts: 3810
  • They forced arbitration into your contract. Use it
Re: Sewer Service - Default Judgment
« Reply #6 on: October 18, 2017 10:38:26 AM »
Who is the OC?  Is arbitration part of the original contract?
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

delandra

  • Valued Member
  • Posts: 174
Re: Sewer Service - Default Judgment
« Reply #7 on: October 18, 2017 02:59:34 PM »
We honestly have no idea who the OC is.  I am hoping that the Court Clerk sends all of the pleadings/filings in the case and not just a "Motion to Vacate" template.  All I've seen thus far is the IS served on the bank, a blurry cell phone picture thereof, and it didn't have the OC, just the case number and JDB's name.  The Court is not sophisticated enough to make anything available online and is located over an hour away from the debtor, who with their injuries finds it burdensome to drive 5 minutes to the grocery store. :(

Debtor has lived a cash-only lifestyle for the better part of the last decade, with the only debts being two auto loans.   One was paid off after being totaled and the other was surrendered after the injury that disabled them.

I don't think it's a deficiency balance from the surrendered auto note; the note was held by a local institution which I've never known to sell defaulted debt.  Typically they work them in-house for a few months then either sue or cease collection, depending on the circumstances.  Any other debts preceding the auto notes should be well outside the SOL by this point.
« Last Edit: October 18, 2017 03:04:19 PM by delandra »

Flyingifr

  • -DEAN EMERITUS-
  • Valued Member
  • Posts: 8485
  • Welcome to my Temper Tantrum
Re: Sewer Service - Default Judgment
« Reply #8 on: October 18, 2017 03:08:44 PM »
Delandra - I used to live in upstate NY and I know what you mean about the relative inability of attorneys there to handle even the simplest matters. Add to the mix that they are all friends in the same club, and that club puts lining their pockets at a much higher level than representing their clients.

The key here is to get the Judgment vacated. In order to do that you not only need to show the sewer service, but that the defendant had SOME viable defense against the suit in the first place. Once you get the suit vacated (meaning it legally never happened) you would look at NY's 6 year SOL to see if the debt is now OOS. Vacating the judgment takes all the time the Judgment was there and lets it count towards the SOL. If the debt is OOS then your friend has a viable answer to any future suit.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Debtors Exams are the perfect place for us Senior Citizens to show off our recently acquired Alzheimers.

Founder of the Credit Terrorist Training Camp (Debtorboards)

CleaningUp

  • Valued Member
  • Posts: 10408
Re: Sewer Service - Default Judgment
« Reply #9 on: October 18, 2017 04:59:51 PM »
FlyingIFR points are what you need to concentrate on if you aren't willing to search for a lawyer.

But that being said, the judgement debtor only has two options:  Motion for set-aside on the pleadings, or show-up in court for a hearing.

And while I think that a telephone hearing would be appropriate given the debtor's infirmities, it is the debtor that is going to have to do the talking if she doesn't get appropriate counsel. The court isn't going to allow anything else.

Your coaching needs to focus on her ability to argue her case.






delandra

  • Valued Member
  • Posts: 174
Re: Sewer Service - Default Judgment
« Reply #10 on: October 18, 2017 08:05:55 PM »
Delandra - I used to live in upstate NY and I know what you mean about the relative inability of attorneys there to handle even the simplest matters. Add to the mix that they are all friends in the same club, and that club puts lining their pockets at a much higher level than representing their clients.

Thank you!  Someone who understands.  It happens in all areas of the law.  I once watched an incompetent criminal defense attorney turn an obtainable ACD (Adjournment in Contemplation of Dismissal, i.e., it never happened) into a felony plea, because they didn't return the DA's phone calls before the indictment happened and missed the window to deal from a stronger position.....

That's representative of the legal prowess the debtor has access to.  There are good lawyers Upstate, in the major cities, but that doesn't help the debtor, even if they had the money to hire one, which they don't. :(

If the debt is OOS then your friend has a viable answer to any future suit.

Your coaching needs to focus on her ability to argue her case.

The debtor can't carry on a non-stressful conversation without stuttering.  They are well and truly disabled with a major brain injury.  The only thing they have going for them is a bit of stubbornness and unlimited amounts of time.  Putting together pleadings and filings they can do.  Arguing a case in real time?  Depends on how accommodating the Judge is.  That could go either way, most of the Judges up there I think would be accommodating, it's not a culture that's going to appreciate an out of town creditor beating up on a local disabled person, but there's always that one Judge.....

To be honest, I think planning to shield their eventual injury settlement from creditors would serve them better than arguing lawsuits.  If those monies can be shielded from seizure (side note: the debtor may wish to leave NYS after the conclusion of their PI case, to Colorado or Washington, to be able to legally self-medicate their brain injury, so advice applicable to protecting assets in those States would be helpful) these low-lives can get all the judgments they want, they're worthless pieces of paper at that point.

Clydesmom66

  • Valued Member
  • Posts: 2031
Re: Sewer Service - Default Judgment
« Reply #11 on: October 18, 2017 08:23:31 PM »
"To be honest, I think planning to shield their eventual injury settlement from creditors would serve them better than arguing lawsuits. "

There are few legal ways to shield a significant 6 figure settlement from creditors.  Creating a trust might do it but again he would need to hire a competent lawyer to do it correctly and ensure legal protection.

"If those monies can be shielded from seizure (side note: the debtor may wish to leave NYS after the conclusion of their PI case, to Colorado or Washington, to be able to legally self-medicate their brain injury, so advice applicable to protecting assets in those States would be helpful) these low-lives can get all the judgments they want, they're worthless pieces of paper at that point."

You should note that Colorado and Washington are even MORE creditor friendly than NY.  To assume the judgment would be worthless if the debtor leaves NY for another state is wrong.  ALL the creditor has to do is domesticate that judgment in the new state and they do not need a new trial they can go straight to garnishment and bank levy.  Domesticating a judgment is as simple as recording it with the court in many states.  No trial or hearing needed.  If this settlement is as large as you say do NOT assume the creditor doesn't know of it and is simply waiting to pounce. 
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

Bubbles

  • Valued Member
  • Posts: 1281
Re: Sewer Service - Default Judgment
« Reply #12 on: October 18, 2017 09:12:16 PM »
Why get yourself in a tizzy over such a piddly lawsuit?

Either debtor remains judgment-proof, or has a lot of money and would hardly miss a few thousand dollars (which is actually owed, remember!) - what's the big deal?

In any case, asset protection is best done when the creditor seas are calm, which often means ASAP.

Getting rid of cash by pre-paying necessities, putting it into exempt assets, even moving to a homestead state and buying a house, are all possibilities. You can get money back out of a houses many ways, including a reverse mortgage. But doing these things too late can be a red flag for fraudulent transfer (not a crime, but court could recover the money and award it to a judgment creditor).

delandra

  • Valued Member
  • Posts: 174
Re: Sewer Service - Default Judgment
« Reply #13 on: October 18, 2017 10:17:53 PM »
Either debtor remains judgment-proof, or has a lot of money and would hardly miss a few thousand dollars (which is actually owed, remember!) - what's the big deal?

Err, are you serious? (emphasis mine)

Even if there was an OC that was actually owed money at some point and even if it's still within the SOL, we don't pay JDBs on this site, unless it's in exchange for an item of tangible value (pay for delete, assuming you want back in the credit "game," which doesn't apply here) or as a final resort if they can prove their claim in court and haven't committed any violations to give the debtor leverage.  Even in that (rare) scenario the debtor still attempts to negotiate a favorable settlement, PFD and/or less than 100% of the claimed amount.

In this case, I don't think the gravity of the debtor's situation has registered.  They will never work again.  That was taken away from them through no fault of their own.  They stand to get -- at best -- a low six figure settlement, call it a quarter million, before the lawyers/public assistance/everyone else takes their cut.  They somehow have to find a way to live off that for the rest of their life, combined with the pittance of SSDI money.

Why get yourself in a tizzy over such a piddly lawsuit?

I'm not in a tizzy over the lawsuit.  This is primarily information gathering, fishing for new ideas, things that I may have overlooked, or presumptions of mine that may be inaccurate.

I am somewhat annoyed with some of the comments in this thread, the site that contains advice which was banned from other credit forums now condones "Which is actually owed, remember!"  Shaking my head at that one....

delandra

  • Valued Member
  • Posts: 174
Re: Sewer Service - Default Judgment
« Reply #14 on: October 18, 2017 10:27:42 PM »
You should note that Colorado and Washington are even MORE creditor friendly than NY.  To assume the judgment would be worthless if the debtor leaves NY for another state is wrong.  ALL the creditor has to do is domesticate that judgment in the new state and they do not need a new trial they can go straight to garnishment and bank levy.  Domesticating a judgment is as simple as recording it with the court in many states.  No trial or hearing needed.  If this settlement is as large as you say do NOT assume the creditor doesn't know of it and is simply waiting to pounce.

I assume nothing.  I think it unlikely that they know about the PI lawsuit, for various reasons (no online court records, no press coverage, no CRA activity, out-of-state national JDB, etc.) but it's clearly possible, which is why I've taken the steps I have to minimize unnecessary information exposure in this thread.

I know all about domesticating judgments.  Did not assume the judgment was "worthless" if the debtor leaves NY, only pointed out that they may seek to leave NY for reasons unrelated to the judgment, to see if that changes any of the information I receive.

The judgment is currently worthless because the debtor has no non-exempt assets.  I believe it will remain worthless if their settlement is structured appropriately.  I also believe they can probably get it vacated without a huge hassle, though that leaves a pending suit to contend with, which may be as simple as a SOL defense or as complicated as filing a meaningful answer and making them prove their case.  That all remains to be determined.