collection letter says a judgement was ordered -

I verified with McHenry & cook county that no judgment is in place against me. As I said, credit report shows no judgment either.

Last week I sent certified letters to the CA (First Nat'l) & the junk debt buyer (MCM) requesting proof of the judgment & the debt.

Today I call First Nat'l - they got my cert. letter & closed the case & sent it back to MCM - I have to call MCM now. When I say I never got served a summons First Nat'l says if they can't serve me at home they put a notice in the paper & if I didn't see it too bad for me - the judgment sticks.

I call MCM - all they can tell me is that a judgement was ordered 03-05 and I need to contact the law firm who handled it - I have the law firm number, but office is closed - will call tomorrow. According to my credit report 03-05 is the month & year that MCM bought the debt, so I think customer service rep was just reading off any dates she could find - I highly doubt that within 1 month of buying the debt they were able to secure a judgment. Also, MCM collection letters I have mention nothing of a judgment award - only the letter from First Nat'l does.

I find it hard to believe that if a judgment was ordered in 2005 that no action like wage garnashment was taken to collect - or that they would let it go this long & not put it on my credit report.

I have to ask again - if someone wins a judgement by default doesn't the court send the judgment papers to the person in default by mail to notify them?

And, is it true that a newspaper announcement suffices as notice? I would think a certified letter in the mail would be more appropriate & affective when you have no luck serving papers to someone.

Any new thoughts on this?

hi again....

ok, first, it is legal in some places for them to put notice in a public newspaper. However, it is not something they can simply do and be done with it. Usually, notice in a newspaper is only allowed after a bona fide attempt of personal service has been tried, and they were unable to locate you. As far as I recall, most places will require them to make a good effort at personally serving you before that would be allowed. It is different from state to state. The law you are looking for is called the "rules of civil procedure". Here is this law for Illinois....



There is one exception to this rule, and here it is:



The highlighted text is the key. In simple terms, they are required to serve you personally, or they can leave the summons with someone else in your household. However, if they leave it with someone else, they are also required by this law to send you a copy in the mail at your last known address. So, either way, if you were living in the same address all this time that they already had, then you clearly were not served properly. Now, the highlighted text means this--they can ask the court to allow use of other methods, such as placing it in the newspaper, but in order to do so they must document to the court exactly what efforts they made to locate you first, and the court must agree that the efforts they made were sufficient.

The person you spoke with on the phone lied when she said "all we have to do is put it in the paper". The law requires them to do a lot more than that, and I would think that no court would permit this to continue to trial if thats all they did, because they must provide to the court evidence of the effort to have you served before proceedings can continue.

Now, as far as the court notifying you, that is something I am not aware of personally. I do know this--if you checked with the court, they would not tell you there was no judgment if there really was one. So, at this point, the CA just lied to you about how they "served you"...and the court shows no such complaint even being filed against you in their jurisdiction. I would consider the letter and claims made by the CA that you have a judgment against you as illegal harassment, designed to scare you into paying them money. I would suggest that you take this to the next level. First, I would document all of this. Send them a certified letter, explaining that you are aware of their dishonest and illegal attempt to scare you into paying them money. Include a copy of their letter to you. Then, inform them that the court in your jurisdiction has no record of judgment against you in this matter. This is a violation of the fdcpa, big time. They cannot make any false claims whatsoever in the process of attempting to collect a debt. I would even consider recording the phone calls from now on--especially if you can get that lady to talk again about how they supposedly served you in the newspaper. The only problem there is that you are required to get the consent of all parties in your state to legally record the call, so at the beginning of the call, you should state that this call may be recorded and by continuing with the call they are giving their permission for the recording to take place. That way, you will have it on record that they were informed and chose to continue with the conversation. This will leave them no way to weasel out of this. Or, they will simply hang up, in which case you wont have to listen to any more of this crap on the phone.

The only question is how far you want to pursue this? They are definitely in violation of the federal law, and FDCPA violations carry a penalty of up to $1000, which they would have to pay you. You certainly have enough info to proceed, I think. You did right by demanding a copy of this judgment. At this point, there is only one other possibility I can think of--if they actually did get a judgment, they had to have gotten it in a jurisdiction other than where you live. Because of that, if they did this, you can petition that court to vacate the judgment due to improper venue. This simply means they tried to proceed against you in a place where you do not live, and where it is highly likely that you would not have had any opportunity to learn of the complaint, so you could not possibly answer it. Either way, you are actually not in a bad position with this right now.

Sorry to make this so long, hope it helps. If you need any other info, feel free to ask away

Jon

Here's the latest:

I just spoke with Blatt Hasenmiller - Midland's attorney. After searching through his records the rep there says there is no judgment and that First National has reported that they erroneously stated there was a judgment. He did't say when they reported the error...but I suspect they did this upon receipt of my cert letter demanding proof as the last letter I have from them is dated 11-7-07.

My gut feeling is that this was a scare tactic - not an error - and I understand I could sue them for violation of the FDCA, but how do I do that? Can I handle myself? Or should I get a lawyer to handle? Is it worth handling?

Thoughts? Advice?

The help here is extremely helpful & greatly appreciated.

Check what sort of cases are heard in small claims court in your state. I't relatively easy to file a complaint there, and not expensive. Unless you have evidence of more than the one violation, it might be difficult to find an attorney, or if you did find one, there might not be much money in it for you.