Small claims judgement and counter suits

[Mupton209]

Jurisdiction

California

Hi, my name is Michael Upton and I have a judgement that was made against me in small claims for additional fees from an apartment complex.

I was never served any papers notifying me of the lawsuit, so I didn't show up resulting in the judgement.

I'm currently in the middle of buying a house out of state and trying to get a VA loan. Because of this judgement I cant get a lender to give me a loan primarily due to the underwriter.

My question is if I pay the judgement now to satisfy the lender for my house, can I still file a counter suit or does paying the judgement forfeit the right to a counter suit for "settling?

I really don't want this guy to get away with this because he's conducting illegal business practice. But I have the house my wife and I want. Our offer is in and we are under contract. So I don't want to lose the house, but I don't want this guy to get away with this either.

What are my options?

I'm also active duty currently and will be talking with a Marine Corps lawyer tomorrow morning. But I need to ease some stress by just knowing an answer.

Thank you for your time.

 

[army judge]

I suggest you speak with the JAG officer.
Once you've done that, you just might find there are remedies available to active duty service members.

The JAG officer will be far more familiar with your military status when the lawsuit was filed.

If you pay the judgment, some lenders will continue to deny you the loan. That's what I call throwing good money after bad.

Some lending officers (I call them lending scammers) will suggest just paying the judgment, only for you to learn after that no loan is forthcoming.

If you we're a civilian, a chapter 7 BK would get the debt discharged. However, for some MOS', a BK can cause the loss of certain clearances. By the way, so too, can a judgment. Again, JAG can further advise.

In some cases, saving the money you would have spent to pay the judgment is a sound play. Don't buy a house now, secure on base quarters. Then, continue to save as much money a month as you can. That way, you'll improve your finances and perhaps your ability to get a loan.

My advice, unless you can afford to pay cash for the home, a mortgage is just an elaborate credit trap. That tax deduction some get for taking on a 20 to 30 year debt, that helps them spring the credit trap.

At any rate, you've got a lot to consider, and a lot more information to obtain. Good luck, mate.

 

[adjusterjack]

My question is if I pay the judgement now to satisfy the lender for my house, can I still file a counter suit or does paying the judgement forfeit the right to a counter suit for "settling?

No. Pay the judgment and you are done.

On the other hand, you could seek to have the judgment set aside for improper service. If successful, you will have the opportunity to file your countersuit when the LL refiles his lawsuit.

As to process service, it's possible that you could have been properly served without knowing it. You'll have to get the case file from the lawsuit (everything in it) and see what the Affidavit of Service says.

I really don't want this guy to get away with this because he's conducting illegal business practice. But I have the house my wife and I want. Our offer is in and we are under contract. So I don't want to lose the house, but I don't want this guy to get away with this either.

What are my options?

Not many. If you want to litigate the judgment it's likely to take months going through court and you'll lose the house anyway.

Sorry that I couldn't ease your stress any.

 

[army judge]

I'm also active duty currently and will be talking with a Marine Corps lawyer tomorrow morning. But I need to ease some stress by just knowing an answer.

Thank you for your time.

JAG might be able to advise you about the SSRA, ask.


Soldiers Sailors Relief Act, MIGHT be applicable, JAG can offer a definitive answer.

If so, that's another way to attack the judgment.

 

[KyleW]

On the other hand, you could seek to have the judgment set aside for improper service. If successful, you will have the opportunity to file your countersuit when the LL refiles his lawsuit.

As to process service, it's possible that you could have been properly served without knowing it. You'll have to get the case file from the lawsuit (everything in it) and see what the Affidavit of Service says.

I would like to add a little side note here and I reside in California (this may be inaccurate though too).
During my Mother's small claims case I served her counter claim to the defendant the day of the trial due to the fact that we were unable to get to him and the judge listened to my mothers counter claim. I don't know if this was because it was a counter on the same case and he was probably going to hear the arguments anyway. But basically he was hiding behind locked gates. California says that a party must be served at least 10 days prior to the hearing date.

Another thing is that I too was served when I was younger by a ruthless debt collection firm without knowing it. They served the employee that worked at the place where I had a P.O. Box and they were able to go through with a judgement. The only reason I knew is because I was nosey one day and happened to search my name up in court records while the case was still opened and I contacted them and paid.

 

[adjusterjack]

During my Mother's small claims case I served her counter claim to the defendant the day of the trial due to the fact that we were unable to get to him and the judge listened to my mothers counter claim. I don't know if this was because it was a counter on the same case and he was probably going to hear the arguments anyway. But basically he was hiding behind locked gates. California says that a party must be served at least 10 days prior to the hearing date.

That happened because small claims courts are informal. Rules are relaxed (though not eliminated) and judges prefer to try cases on their merits.

Another thing is that I too was served when I was younger by a ruthless debt collection firm without knowing it. They served the employee that worked at the place where I had a P.O. Box and they were able to go through with a judgement.

Process service laws can result in a defendant being properly served without knowing. Although in your PO Box case you might have been able to get the judgment set aside.