Default judgement from 8 years ago

[Fallingdown9]

Jurisdiction

New York

Hello,

I recently received a letter from a Sheriff stating that I needed to make payments on a judgement that I received in 2009... problem is I was never properly served. For the credit card (800 dollars) I stopped paying in 2008. I plan to file a motion to set aside the default judgement which I am assuming will go through. I did not live where I was "served". After speaking to my mother she mentioned my grandpa being served something and they told them I did not live there but he had to take it anyway. I have tax papers that proof I did not live there.

So now that the statue of limitations would have passed if I was not sued what happens if the motions to dismiss the default judgement is granted? Do I still have to go to court, defend myself, etc... or will that not happen now that this debt is over 8, almost 9 years old.

 

[Fallingdown9]

Also the letter from the sheriff is threatening to garnish wages

 

[Fallingdown9]

Also, my grandpa is no longer alive.

 

[adjusterjack]

I recently received a letter from a Sheriff stating that I needed to make payments on a judgement that I received in 2009. Also the letter from the sheriff is threatening to garnish wages

That's right. NY is different from most other states in that you must be given notice of impending garnishment and gives you 20 days to make payment arrangements before serving the garnishment on your employer.

problem is I was never properly served. For the credit card (800 dollars) I stopped paying in 2008. I plan to file a motion to set aside the default judgement which I am assuming will go through. I did not live where I was "served".

That might not matter. Did you provide the credit card company with your changes of address? If you didn't and you were served at your last known address and service was made on an a adult, it might still be proper. After all, everybody tells the process server that "he/she doesn't live here." If process servers accepted that nobody would ever have judgments.

After speaking to my mother she mentioned my grandpa being served something

Then you can blame them for your predicament. "My son/grandson is getting sued, I'll just toss these papers so he never knows about it." Smart, very smart.

I have tax papers that proof I did not live there.

That might not matter either.

I plan to file a motion to set aside the default judgement which I am assuming will go through.

I wouldn't be too sure of that. One of the grounds for relief from judgment in NY is "excusable default." You're welcome to file your motion but it could go either way.

2016 New York Laws :: CVP - Civil Practice Law & Rules :: Article 50 - (Civil Practice Law & Rules) JUDGMENTS GENERALLY :: R5015 - Relief from judgment or order.

So now that the statue of limitations would have passed if I was not sued what happens if the motions to dismiss the default judgement is granted? Do I still have to go to court, defend myself, etc

The statute of limitations is the deadline to FILE a lawsuit which, in your case was filed timely. I think (but can't guarantee) if the judgment is set aside the lawsuit is still in progress. If service is ruled faulty you would have to be served again.

 

[mightymoose]

It sounds like substitute service. If the papers were given to a responsible adult then the process server usually must also mail a copy to you at the same address.
You can get a copy of the proof of service papers that were filed and look for a discrepancy, but you are likely on the hook.

 

[Fallingdown9]

There is no way my grandpa or mother would have given me this letter. I got pregnant at 18 and my family did not speak to me again for years. So I'm not sure how that's a responsible adult when there was no communication.

 

[adjusterjack]

Your family issues have nothing to do with your financial relationship to the credit card company and responsible adult has a different meaning in law than you are giving it.

If all the credit card company had was your last known address and you obviously never gave it any newer addresses, then the service could be legit, even to the point of mailing it to the same address after handing it to your relative.

 

[mightymoose]

You need to get a copy of the proof of service that was filed 8 years ago and see exactly what they did or claim to have done. If you feel there is an argument to make regarding improper service then you can make it. It's up to the court to decide if proper service was made.
If the service on your grandfather was at your residence of record and you gave no forwarding information, you might find you don't have a way out. If you want to try and fight it, getting a coy of those documents from the court is your first step. You need to move quickly since the garnishment is apparently coming soon.

 

[mightymoose]

For what it's worth, $800 is a pretty small debt and probably not worth the time and effort of fighting in court. If it is a legitimate debt you may have success contacting the creditor directly and negotiating a settlement. The debt likely belongs to a company that bought the debt for a fraction of its value, so even if you negotiate an amount under $800 they can still profit.
I think this is a far better option for you since you aren't disputing the validity of the debt.
Offer them $500 to settle the debt in full and see what they say.

 

[adjusterjack]

I suspect that over the last 8 years the debt has grown substantially with interest, court costs, and attorney fees. The default interest rate could be as high as 30% until the post judgment interest rate kicked in (if less).

I seriously doubt that OP is getting out of this for $500.

 

[mightymoose]

Many collectors settle for significantly less. It just depends on how much they paid for the debt and what assets their mark has. They know they'll never get the thousands they say are due.

 

[adjusterjack]

True. But the lawsuit has already gone to judgment. They need only garnish wages and wait. That's a bit more leverage that pre-lawsuit dunning.

The OP will just have to see how it goes.

 

[zddoodah]

So now that the statue of limitations would have passed if I was not sued what happens if the motions to dismiss the default judgement is granted?

The lawsuit was (presumably) timely filed, so getting the motion to set aside the default judgment granted would simply mean you will have to litigate the claim. If you have no valid defense, then you might be better off trying to settle now.