One of the most common complaints that we tend to hear when talking with people for the first time is that they just discovered that they have a judgment against them and never even knew that a lawsuit was filed in the first place.
More times than not, those people come to our law firm for help because they just discovered that: (1) a judgment is showing up on their credit reports, (2) their wages are about to be garnished, or (3) their bank accounts have just been frozen. Talk about a rude awakening!
The first question people always ask is, “Aren’t creditors suppose to give me notice that they are suing me?!” The answer, of course, is “yes” – but unfortunately (for a variety of reasons), many people don’t get proper notice of the lawsuit. Depending on the situation, there may be a way to fight the judgment and prevent the creditor from going after your wages, assets and/or credit.
A document that should always be filed with the Court, called an “Affidavit of Service,” details just how and when notice of the lawsuit was served. If the details contained in this Affidavit are false or significantly inaccurate, or if other special circumstances existed that led to non-service, then you may be able to file a motion to vacate (known as an “Order to Show Cause”).
If the Court believes that you have produced enough information and/or evidence to call into question whether you were actually served, they may schedule something called a “traverse hearing” in which all the parties involved will be called to the Court to debate the facts surrounding the alleged service of the lawsuit.
If the judge for your case is satisfied that the Plaintiff cannot meet their burden of proof, the Court will vacate the judgment previously entered against you. The Court should also technically dismiss the case, thus requiring re-filing and re-service of the lawsuit by the Plaintiff. Sometimes, however, the Court decides to simply vacate the judgment and directs the defendant (i.e. you) to respond to the lawsuit within a certain period of time so the case can proceed.
If the Court dismisses the action like it should, it is quite possible that the time to sue you has expired (i.e. the statute of limitations) and thus the creditor cannot turn to the Courts for a judgment again. If the creditor sues you despite this time expiring, then you may have a claim against the creditor and/or their attorneys for violating the FDCPA.
If you would like to learn more about your rights and options with regards to the judgment unknowingly entered against you, contact our law firm today for help. We will provide you a free consultation and help you make a plan of attack that best suits your needs!