Summary Judgment without my knowledge

[manros]

I filed in Federal court against a collector a couple of years ago. Shortly after that (I don't even recall why I did that), I filed a voluntary dismissal which the court granted. I retained my right to sue the collector later if I wanted to.

To make the story brief: the said collector (AmEX Centurion), got a summanry judgment against me, without my knowledge. I was never notified about this.

I recently found out about this when I pulled out my credit report. It is there, 25K.

I need your comments, please.

[charlesa6]

[quote=manros]I filed in Federal court against a collector a couple of years ago. Shortly after that (I don't even recall why I did that), I filed a voluntary dismissal which the court granted. I retained my right to sue the collector later if I wanted to.

To make the story brief: the said collector (AmEX Centurion), got a summanry judgment against me, without my knowledge. I was never notified about this.

When did they get summary judgment against you?

I recently found out about this when I pulled out my credit report. It is there, 25K.

Find out first, when they get the judgment, then deal with credit bureau later.

[manros]

Charlesa6, thanks for your concern. The judgment is dated March 2006.


[quote=charlesa6]

Originally Posted by manros

I filed in Federal court against a collector a couple of years ago. Shortly after that (I don't even recall why I did that), I filed a voluntary dismissal which the court granted. I retained my right to sue the collector later if I wanted to.

When did they get summary judgment against you?

Find out first, when they get the judgment, then deal with credit bureau later.

[charlesa6]

Originally Posted by manros

Charlesa6, thanks for your concern. The judgment is dated March 2006.

Check the civil procedure in your state relatively to this one here:

Relief from Judgments

Judgments may be set aside after 30 days and before 2 years under this rule. 735 ILCS 5/2-1401
Note the following:

• This rule contemplates presentation of facts not known at time of the judgment which would have altered the judgment.
• This rule is not intended to relieve a defendant of the consequences of defendant's or attorney’s negligence.

The defendant must, by affidavit, show:

• Existence of meritorious claim or defense.
• Due diligence in presenting claim to court in original action [why defendant did not and could not have known fact(s) alleged].
• Due diligence in filing the present petition.

MAY BE USED IN CIVIL OR CRIMINAL CASES.
OR
You can raise the "Subject Matter jurisdiction" in that court.
Subject Matter Jurisdiction refers to the power of a court hear particular matters. Federal district courts of Limited jurisdiction and cannot hear a case unless it falls within their power, as defined in Article III of the United State constitution, and Congress has extended jurisdiction over the particular type of case.
Because federal district courts are courts of limited jurisdiction, a party seeking to invoke the courts's jurisdiction must affirmatively plead and demostrate proper subject matter jurisdiction. "the basis for jurisdiction must appear on the face of well pleaded complaint and cannot rest on counterclaims, defenses, or anticipated defenses". On the other hand , any party or the court can raise lack of subject matter jurisdiction. Although most commonly raised in defendant's answer or by rule 12 Motion to Dismiss, it can be raised at any time, even after judgment or on appeal. If the court has no jurisdiction over the subject matter , the case must be dismissed period.
Any further assistance posts it here for members for quick respond.

[masterduke]

Manros, I'm suprised that they haven't attacked your bank account? Remove any money you may have in there right now. Cause that summary judgement order has been around well past the 28 day waiting period for bank presentments!

Manros, you would be wise to check the court records in your district and locate the actual case file, which is public record. Take it out, look at it. How were you supposedly served? To what address did the collection attorney mail your copies of the pleadings that he used to get a judgement against you? Why did you receive no copies?

There are a number of possible ways to get this judgement vacated or set aside, depending on what was actually filed against you. Go to the court and get a copy of the entire file so you can examine it at home, and prepare your counter-attack. You also need the actual case number so you can file a motion to vacate judgement or a Motion to Dismiss... or maybe a Motion to Quash service of Process... and you need to see exactly what the collection attorney DID to get a judgement against you w/o your knowledge.

Masterduke - how does someone find out from the bank if a presentment has been made for purposes of cleaning out the account? In Florida (and probably in Texas) the bank account that is used only for deposit of the wages of the Head of Household is exempt from garnishment, so how does someone notify that bank that the funds should not be removed and are protected by law? Would someone file a notice with their bank? Would a notarized affidavit signed by the Head of Household and citing the state law be a good idea?

[masterduke]

Heidi, I know Fla. and Tex. are a bit more protective of a defendants rights. In Michigan when the debt attorney gets their summary judgement ruling from the crook on the bench they usually already have your bank info so they submit a "presentment check" to that bank. Where it sits for 28 days waiting to be "cashed"(electronic transfer no doubt) So on day 29 it is transfered all without any notification. Preying on peoples ignorance of the their sneaky tactics. The bank will also steal a hefty fee(like $70+) for this service and then notify you what transpired after it has happened. They may not even be obligated to spill the beans if you asked them during that 28 day "waiting period". I was a victim of this very scam so now I try to alert others of this "activity"! I mistakenly had thought that by filing a motion for a review of the the judgement order it would put the brakes on the judgement order. The fat slob on the bench said, "This is unusal, legal, but unusal. I will have to consider this and I will render a decision that will be mailed to you". This allowed the 28 day clock to keep ticking and just about the time we got cleaned out he sent us his decision, of course ruling against us. So your advice on Motions to set aside, quash, etc. are the RIGHT WAY to deal with this sort of stuff as it does put the brakes on, if momentarily to the theft in progress.