Who can Vacate a Default Judgment

[KCGirl]

Here is the scenario. Please don't argue with me though about the premises. Been there and done that. Not Crazy, Not Lying.

I was being sued by a 3rd party notoriously deadbeat collector and their equally notorious deadbeat attorneys. The suit was about an alleged credit card I had with Citibank.

I have never had a citibank account so I denied everything in their Petition which may I say was put together with someone who appeared to have nothing beyond an elementary school education.

Anyway, I appeared pro se and played by the rules and did everything I was supposed to. I moved for a dismissal on the grounds of failure to state a claim and capacity to sue among other things. The only progress in the case from month to month was that we progressed to the next month to resume again a case wherein it seemed to object was to stall and frustrate me, which they did do.

Hizzoner was very thoughtful about continuing a meritless case for the benefit of plaintiff.

Finally the judge told me to come back in 3 months rather than the usual 1 month for trial. I asked the judge basically when do I finally get to see on what grounds this case has been filed, where's the beef essentially is what I meant and he said at trial that's when they show their cards (their cards are my words paraphrasing him). Not happy but whatever. Tired of paying $8 a day parking, going into the city environment I'm not comfortable in.

I had stuff to do so I made the most of it and was going to do a set of interrogatories but I figure no hurry, 3 months away. I already answered theirs. About a month passed and I decided to check casenet to see what this particular judge did with these cases (most of which no one shows up on, I was curious about the ones who did). I never found anyone who showed up actually. I also never found any resolution but Default Judgment. Then I looked at my own case and saw, surprise, a default judgment against me in September.

If we were to put the best face on this and just say it was a matter of confusion, seems like the judge could have/should have continued the case on my behalf for a change. I showed up every month while plaintiff stalled and got no where. If it was "just a misunderstanding" it seems based on the fact that I had perfect attendance prior to and there would be no logical reason for me to abandon ship when i was successful at forestalling this law firm who incidentally has an F rating with the BBB, and so the judge might have continued the case for me.

I've done extensive reading on the net and in similar circumstances the judges say they try to give pro se people a little extra rope to be sure they get a fair deal. I just ended up with Judge Roy Bean is all.

Ticked, angry, blah blah, shocked. It is obvious to me though no one else will accept what I say, they seem to automatically accept the judge is straight up and I am a liar but anyway. Assume for my sake that I'm telling the truth (and I am) how do I get this set aside/vacated? What are the chances a judge who colluded (please just work with me here) with the Plaintiff's attorney to defraud me and the court is going to say "okay" I see what you mean when I ask that it be vacated based on the grounds that I was unaware of the hearing. He's sure not going to say "you got me I'm a crook".

Is there anyway at this point in the game to submit a motion to vacate and ask that it be assigned to a different judge or am I stuck with the crooked guy?

I have it on good authority that a process server has some papers with my name on it with the intent to cause me to show up and divulge all my earthly belongings so these 2 scummy people can take what I got and make it theres.

I don't honestly see myself being able to do that because there is a metal detector just as you come into the building and so I don't think I'd make it to that floor.

What can I do?

My sanity is hanging by a thread due to this and a home invasion recently and the fact that I have already been accused of being unfair to hizzoner so PLEASE don't, I'ver heard it all a million times.

Also, forgot to ask, if I file a Motion to Vacate Default what happens with the hearing they want to have me appear?

If you accept my version of the truth (which I intend to prove in due time by getting a copy of the tape transcript) I hope see my "reluctance" to basically go and let these 2 crooks drool over my possessions.

I realize that any attorneys reading this may take offense at my disparagement of one of their colleagues but sometimes the truth hurts.

 

[army judge]

It is extremely hard to vacate a default judgment.

In fact, such motions are successful less than five percent of the time.

It is sometimes easier to get a new trial.

You appear to have grounds to request a new trial.

Doing that is easier than saying it.

Telling you how to do is even more difficult.

I've known practicing attorneys who can't do it properly.

You might want to speak with an attorney.

It all depends on the value of the judgment against you, and what the value of your assets approximate.

Don't post that information, it is for you to privately consider and deliberate.

Getting a judgment is often easier than collecting on one.

If you suspect judicial misconduct, you can always report the improper or illegal behavior to the judicial review commission in your state.


Insofar as who vacates a default judgment, (or any judgment for that matter), it is normally done on an appellate level. It can be done by the trial court, if you're able to convince said court that you deserve a new trial on the merits. Don't get your hopes up in that regard. Such relief is rare. Situations such as yours usually require appellate relief. That is difficult, (if not impossible) and can get get tossed for technical errors!

 

[KCGirl]

It is extremely hard to vacate a default judgment.

In fact, such motions are successful less than five percent of the time.

It is sometimes easier to get a new trial.

You appear to have grounds to request a new trial.

Doing that is easier than saying it.

Telling you how to do is even more difficult.

I've known practicing attorneys who can't do it properly.

You might want to speak with an attorney.

It all depends on the value of the judgment against you, and what the value of your assets approximate.

Don't post that information, it is for you to privately consider and deliberate.

Getting a judgment is often easier than collecting on one.

If you suspect judicial misconduct, you can always report the improper or illegal behavior to the judicial review commission in your state.


Insofar as who vacates a default judgment, (or any judgment for that matter), it is normally done on an appellate level. It can be done by the trial court, if you're able to convince said court that you deserve a new trial on the merits. Don't get your hopes up in that regard. Such relief is rare. Situations such as yours usually require appellate relief. That is difficult, (if not impossible) and can get get tossed for technical errors!

Thank you for responding to my questions. Let's see, I'm going to get a copy of the tape transcript but its going to take about 2 weeks to get it (another attorney when this first happened said the commission you referenced would/could get the tape but they are not being helpful at all). The Committee on Removal Retirement and Discipline of Judges I sent a preliminary report but now I have one more extensive. Anyway he said (when I asked if they would get the tape) "we have limited funds. If you think it will help you, YOU get it." (my emphasis added). It seems like if they did it they should be able to get the original instead of requiring me to go to expense and time to get a copy. I'm concerned the tape might "disappear" or somehow get damaged in the meantime. Paranoid, nope? I think if someone is willing to commit one fraudulent act he is well capable of committing another one too cover up the first.

This is grating on me, that without showing one single tiny bit of evidence or signature this can happen. I've been told that if I appeal it will cost $700 to file. They don't make it easy on a person. I have limited funds and no way can I come up with that. On the other hand if I don't.

I consider filing bankruptcy, my income is such that the means test is not an issue. I don't want to but there is no way I can allow this to happen, a total miscarriage of justice.

I am also filing a complaint against the attorney, out of law school in 2008, off to a great start. Rumors are a dime a dozen, some people say its not that hard to get a judgment vacated. But with this judge it would be improbable. he went to a lot of trouble to "get" me, why would he turn into a pussy cat now?

An associate circuit court judge is not a State judge then, is he? The rules on reporting someone vary according to whether he is federal, state or otherwise.

From what I've read it is almost impossible to do anything which would impact a judge's position on the bench. Attorneys are not so daunting but no shoe-in.

The thing is, it would be logical (but of course no proof) to think that I am not so special as to be the only one to garner the "additional effort" they expended to get me.

All the resources re there to look at a significant number of files online but again, costs money.

I'm just thinking out loud. This has been an isolating experience, I've turned into one of those people who walks into a room and suddenly everything gets a little chilly and few people want to chat even to pass the time of day.

I have to follow through though, because otherwise I'm sure this will be repeated on others who follow after me.

Thanks for listening, sort of, and for not saying I'm crazy. Mostly we should be strong/tough enough to not be affected by someone saying "you're crazy" but in this position with the assumption being that I'm some deadbeat, my self-confidence is battered.


So you're saying if I go to court I can refuse to answer their questions about my assets? Wouldn't that be contempt of court?

As to "suspecting judicial misconduct" I am as certain of this as I am that I need air to breathe and to live.

I don't make such accusations lightly, I realize their gravity but I also realize and value the truth.

 

[army judge]

I never advised you not to answer questions under oath in a court of competent jurisdiction. If you try that tactic, you'll be held in contempt.

Bankruptcy trumps the debt and the crooked judgment. It's a hassle for you initially, but in the end it's cheaper, faster, and can't be overcome. It erases all unsecured debt and most judgments. You might want to investigate bankruptcy.

Now if you can't be served, you won't be required to go to court. If you're not in court, you can't testify, can you?

Would you believe how many people I've tried to serve who suddenly and unexpectedly had to leave the state? It's very hard to serve someone in Kansas, if you're in Texas. Even if you were in Oklahoma, it'd be hard serving you from Texas. This can easily be overcome in criminal matters, but it's often impossible in civil matters.

 

[KCGirl]

I realized after I read some of your other comments that its your signature/tag I guess about constitutional right to remain silent. I mistook that as something you were saying to me and I realized last night I had misunderstood so yes I understand about the contempt of court thing.


I feel like a prisoner inside my house. If I go into my front yard to rake leaves and the process server shows up I've had it.

I have considered bankruptcy. I don't want to, but it is an option. I understand social security is exempt but I have been doing lots of reading and the fact is exempt or not people's bank accounts are being frozen even joint accounts.

The 3rd party debt collection world has turned into a dirty place where lying and cheating is okay. They apparently feel llike "we" are lowlife losers who don't pay our bills. But the fact of the matter is that some of these debts have been discharged in bankruptcy, the ones they come after again and if the people aren't educated enough, they buy into the intimidation.

The FTC website has a roundtable discussion, very revealing, the internet is full of sources of information that back up what I say, the problems and the abuse.

I have thought about nothing else since I found out about this. its scary and its humiliating and it also makes me angry. But somehow, as hard as it is, someone needs to be heard or he will continue to do this to others. Its not just the ones he cheats outright. A lot of judges you will find on the internet are becoming aware of whats happening and doing what they can to bring these debt collectors under control.

Based on my income, I don't think I have to be concerned with the means test so bankruptcy is an option. It would need to be Chapter 13 I guess on account of my house though since the financial crisis I have very little equity in it. I just really would rather avoid it but it is a "get out of jail card" I guess. But neither this attorney who is just starting out or this judge who is about 45 or so should be able to continue doing this.

I might have a hope with getting her disciplined but from everything I read its a rare thing to get to a judge. But if nothing else, maybe it will give him pause and he might decide not to risk it anymore? I'm sure he is aware now of what I've done. When I sent in my complaint I did not elect to do so anonymously because I have nothing to hide and so doing so anonymously seems to open the door to my being just somebody trying to cause trouble.

Thanks for writing back, I can't send messages privately so I will thank you here for your help and opinion and advice.

Incredibly, Judge Standridge has done just the opposite. He's thrown his judicial robe into a den of thieves in essence. how scary is that. Right now he can cheat people out of money, who knows what "progress" he will make up the judicial ladder and be in control of people's freedom?

 

[army judge]

You're right, debt collectors are scum.
They pick the bones of the dead and their grieving family members.
Those debts have long been written off by the original creditors.
The scum that slithers into your presence badgering and haranguing you about a debt you do not owe them need to purged from our planet.
Alas, there are many that feast in the pig sty and trough of these scavengers.

In Texas, these debts are pursued in Justice of the Peace Courts.
These are low level courts and not courts of record.
The JP makes his/her money form the filings, fines, and fees.
You know what drives them.
In some counties they are used as ATMs.

I advise folks never to speak or communicate with debt scavengers.
Would any sane person make a deal with Satan?
That is why you should never speak to these devils.
They lie.
They are masters of trickeration and deceit.

How much do these creeps allege you owe them?
You do know that your state has homestead exemptions. They are not as good as Texas, Florida, or Kansas; but Missouri does provide for a homestead exemption of $8,000. I don't think they can force a sale of your home. If you're on social insecurity or a pension, it is off the table.


http://www.uslegalforms.com/realestate/homestead/

 

[KCGirl]

Thanks for the info about homestead exemptions. I think I understand it better now whereas I was confused before. .Hmmm, how to somehow scooch my house across the state line into Kansas so I'd get my entire house value exempted.lol. Maybe you can tell me if I've got it right. So if the exemption in Missouri is $8,000 it seems then that, as far as if you took out say a home improvement loan of $5,000 with your home as collateral that would be a valid claim to the property. Am I to understand then that, for example, your home was worth $100,000. These people could force you to sell your house or seize it and then sell it. Whatever they collected in excess of the $5,000 you owed would be returned to you?
Then if someone such as the slimey bottom-feeding debt buyers takes this judgment against me (which by the way is $2600 and some change (but they add to it all the time, just like the interest adds up and then I'm sure whatever they have to pay this process server will be added onto MY bill. Also they can add on court costs and K&F attorneys fees (how is the amount set that they would charge? Like, they came to court twice and did nothing, may as well not have been there but I suppose they would charge me attorneys fees for that time spent getting ready to Give me the proverbial shaft. Anyway, like with this instance if I file the homestead papers (you can't do it after the fact can you?) and I have an $8,000 exemption that would mean the for a $2500 judgment they could not take my house. Now what if their judgment was for $10 or $15,000 that is over the $8,000 exemption would they then be able to force me to sell it and give them their blood money? This is hypothetical here, I'm just trying to understand if I have the concepts right.
What if five different (this for the sake of explanation, it is not the case) debt collectors got five different judgments against me for $2,000 apiece, the total would be $10,000 would the $10,000 be the deciding figure, a sale could be forced to get the additional $2,000 or would it be such that it isn't the total of the claims (5 x $2000) but the $2,000 that decides. And then in that case they would not be able to or no? since the total is $10,000 but the individual amount is $2,000. Hopefully it would never come to pass that someone would be forced to sell their home because of a $2,000 sum).

My home (it saddens me to contemplate) was once paid for, happy day. Not so happy when since no longer able to work and as things do with houses they need a new roof, a new furnace, medical debts and so forth, I did get a loan with my home as collateral to pay off the higher interest debts and so the exemption of $8,000 would not stop them from selling or forcing a sale of my home if the amount i owed them was $30,000 then they could proceed to sell it. Would it be just based on the fact it is collateral or would it be (maybe both) because the amount owed exceeded the exemption amount). What I get though is that a lien placed on a home for something like a judgment would not be able to force the sale because its a lien and not collateral)?

I am not too keen in the figure (cyphering as they used to say)department. The minute we got to the pi r squared thing it short-circuited my mind on that.

So if I understand a lien on a house can not be used to force a sale even if it exceeded my $8,000 exemption? Would a home equity loan of $5,000 that did not exceed the $8,000 still work to force a sale even though its under the $8,000 because its for collateral and not a lien?

A lot of words to say what I'm trying to get out I guess. I remember being in algebra class (which I also remember I was in the sad day President Kennedy was assassinated, we all remember where we were) and listening to Mr. Gerber (if I can remember his name still then hopefully I'm not in the alzheimer's zone) drone on about equations made out of letters that somehow turned into numbers and it made me feel daft. But I'd sit and try to "get it" since all my friends did get it, finally I'd say oh now I see and do the problem and it was still wrong. frustration!

I guess I got off track there sorry.

On the subject of debt, I understand they buy these debts, sort of in bulk like with very little if any documentation from the original debtor and its for like five cents on the dollar. I'm thinking that probably the original debtor would be able to write off some of that on his tax return? How does that work then if he gets the reduction for say $10,000 bad debt then when he sells the debt should he not be able to only sell whatever you owed him, minus the $10,000 he wrote off or not? Otherwise two people would be collecting some benefit of the same $10,000. Scummy collects on the entire amount but the original debtor got $10,000 on taxes then would that not be somehow, getting more value out of it than its worth? If that makes sense.

I have been totally unaware until this recent event of the damage done by these debt buyers. They do have a whole bag of sneaky tricks. They harangue people into paying "just $25", urge them to take that one small step as a show of good faith or whatever and then once they do that it in essence resets the timer on statue of limitations. It might even have been outside the SOL but because the people were unaware then the (say 5 years) 5 year clock is set back to zero and so now they can force you where they could not have in a court of law if the judge was on the ball he would know that.

I read all kinds of stories about people getting into terrible difficulty. It's a snowball effect. Once they get the judgment then they put a lien on your house and a mark goes against your credit score which has the effect of keeping you from getting a good rate on your loans so you have to pay higher interest rates so now you've got the lien/debt plus its raised your interest rate and made your credit score the worse off. If they are garnishing peoples accounts then lots of people living month to month are going to have to let something else go unpaid which will eventually be a problem. If they go to a payday loan (super slime) place now they are in quicksand and sinking fast because the rate is so high that about all they accomplish is to pay on the interest

You're enslaved basically, owing them a debt it will be difficult or impossible to pay off and maybe you were forced to do that because the slime suckers got the judgment they might not even be the holders of the debt on. That's what I mean by snowball thing, it gets going like a bad trip.

Perhaps a 21st century brand of slavery is alive and well, get into debt enough and you can almost hear those cuffs as they snap closed.

Sometimes people do stupid stuff (who knew) and borrow too much but creditors are pushing off credit cards on kids just going to college when they probably get started getting indoctrinated into the credit mill thing.

But what makes it work for these 3rd party slumsuckers is they count on no one showing up (hence my misstep in their eyes) because if savvy people showed up every time they would have to admit eventually they have no proof or the proof they have is worthless like the affidavits in the foreclosure fiasco. Without any proof they are sunk, the only it works is where you dont show up (because you're intimidated what to do). Sometimes people show up to present their side only to be tricked into saying something which they translate into an acknowledgment of debt. These people don't know that legally they are required to have quite a lot of documentation. It seems to me like if they had to show/prove at the very minimum, ownership fo the loan that many of these cases would not be filed, which would free up the courts for something else and get the hounds of hell off the backs of struggling people.

The tendency is for the common everyday person to look down on anyone who has a debt thinking it would never happen to them but its risky to say never, tempting fate.

If I file bankruptcy, if I only have say $7,000 equity in the house (if I'm lucky) based on the $8,000 deduction could I then do a Chapter 7. If I had $50,000 equity then they could make me sell it and distribute any amounts over and above $8,000?

Or do I need to do Chapter 13. Somehow 13 seems safer in a way, because Chapter 7 is done with quickly whereas Chapter 13 gives you time to get your ducks i a row and not be hassled by someone new who shows up that you hadn't planned on. If you do a 13 and someone new shows claiming a debt does the trustee refigure the distribution of your funds to adjust for the previously unknown/unaware debt you just got news of?

Filing bankruptcy is not cheap. I fall just above the guidelines 150% of poverty level to be able to skip the filing fee, dang. But we are talking in excess of a thousand to pay the attorney. Still it would be better than continuing to be pursued by these creeps.

I found that, unlikely as it is, if by some strange chance the judge actually was censured (or would he have to be totally permanently gone) that all his rulings are thrown out? Which would fix my default judgment but thats a ways down the road and a long shot.

 

[KCGirl]

omg, a whole page of me thinking out loud, that's scary. I KNOW, I mean, I'm used to my mental meanderings, I know what they sound like. the unwary (and unfortunate) sojourner who happens by and "listens" to my head might be put off or even frightened away, oh no.