Sued and never served...Asset Acceptance LLC

Each state has it's own laws regarding service of summons. You do have a right to be informed of any complaint filed against you, and to make your defense. But the process they need to serve you depends on your state. Check your state laws here:
http://www.le.utah.gov/~code/code.htm -- I browsed through it quickly, but couldn't find them right off the bat.

Since a judgment was already issued, it's not simply as easy as going to court and saying "it's not mine." As far as the court is concerned, "you've already had your day in court" -- you just weren't present at it. I think you would need to file a motion to vacate the judgment on the grounds that you were not properly served and had no knowledge of any proceedings. However, I am not a lawyer and I may not be phrasing that correctly... I'm sure it gets very technical and you may want to consult your own attorney.

But I am pretty sure that as long as there is a judgment, it is enforceable and they can go through with the Supplemental. You would need to figure out how to quash this before 1/9/07, or you will have to tell them under oath where you work, etc.

You need to move very very quickly. There is a judgment against you. It is probably invalid, but you have to go to court to prove that.

You can do this yourself if you are ambitious and willing to spend some (read: hours and hours) time researching your state's procedural rules, but you are far better off with a lawyer. Check naca.net for an attorney who specializes in debt collection defense or fdcpa.

Basically you need to move to dismiss the lawsuit and/or quash any garnishment. After that, you probably want to sue the collection agency under the FDCPA for doing this to you.

Quote:

Guest, I'm not really sure what your talking about! Where is the negative feedback?

I do apologize; I know my states' laws like the back of my hand.. I know how they're organized and if you give me a subject, I could give you a pretty good estimate of what chapter you can go find those laws in. In Illinois, matters pertaining to service of summons would be found under Heading "Rights and Remedies", Chapter 735 "Civil Procedure", Subchapter 5 "Code of Civil Procedure", Article 2 "Civil Practice", Part 2 "Process."

Unfortunately, I have never had an occasion to look up Utah's laws, and I don't know how they are organised.


I found this little thing in our laws that say if you are concealing yourself within the state to avoid service of a summons, then the plaintiff can serve process by publication. Meaning they can put it in a newspaper if they can't serve you any other way.

Maybe in your case, they advertised your summons in a newspaper, and that is how they got a judgment. You can go down and look through the case file to see how the service was made.

The clerk of court in my county has a "Pro Se Help Desk" where you can go and ask questions, and they will help you fill out forms; maybe your court has the same. Maybe you can ask them what form needs to be filled out in order for you to motion to dismiss the case.

In any case I hope that negative feedback just means "not the answer you were looking for", because I would hate to think I'm wasting my time trying to answer a question.

From the OP's description, I would say they already have a default judgment against them. The supplementary hearing, is what is commonly known as a "debtor's exam. The judgment holder wants to know what assets and income the debtor has that can be levied or garnished. It is important for the OP to know their states exemption that can be excluded from seizure. You are usually allowed to keep certain income and assets. Each state is different. Be sure the judge is made aware of your exemptions. In most states, it is mandatory that you attend a hearing such as this. It's the one instance of civil law where a warrant for arrest can be issued if you don't show.

Getting a default judgment vacated is of secondary interest at this point. It is usually quite difficult after the fact. Concentrate on the supplementary hearing, and protecting your assets and income that are exempt.

Well, I have done a bit of further research into this.

There is a default judgement on 2/3/05 against me for never appearing, which isn't all that surprising as I never knew of the case against me.

The original summons was delivered to my parents' house of which I have not been a resident since 1993. To say I'm not terribly close with my parents is a bit of an understatement so its not surprising that I never heard of it. Apparently, they gave the constable my current address but said constable couldn't be bothered to deliver it to me seeing as I live a whole 10 minutes away however they did keep it on file beacuse the supplemental contains the address I live at. The attorney in question, Ronald C. Barker, never bothered to have the legal notice posted in a newspaper for that matter either, as he considered me "served".

As I understand it, under Rule 4 for the Utah Rules of Civil Procedure, they were required to serve me at the correct address and not someone at a past address, regardless of relationship to me. I can easily establish that this has been the correct address and my household (of which I am the only member) for almost the past 4 years. As to whether this gives me grounds to set aside the judgement, I'm meeting to discuss this with an attorney later this week.

The original debt also appears to have been "re-aged"..it appeared on my credit report originally in '98, then in '99 and conveniently enough in '01 from what appear to be different versions of Asset Acceptance. Three separate debts totaling the exact same amount of some $3500. Incidentally, the SOL for open debts is 4 years in the state of Utah which leads me to believe why they filed in 2004 and had the judgement in place by early '05 as the SOL was about to lapse.

I'm not overly worried about the supplemental. I have the $4700 in cash for the judgement. I'm just a bit upset at not having ever heard of this debt/judgement against me prior to last week. If the debt was legitimate, I never would have had a problem paying it off in the first place had I known of it.

I'm glad you were able to find out more about the case. Here's my thoughts:

Since you seem to be able to prove improper service in the first place, I think you will be able to set aside the judgment.

This would put them in a position where they need to re-file the case and serve you properly. But if they filed a new case now, wouldn't you be able to use the SOL as a defense, seeing that a new case filing would be four years after the original debt...

It is probably a good thing that you have an attorney. Trying to do this all yourself would just be too time consuming, and if you fill out the wrong form (or don't fill out a needed form) it could backfire on you.

does it matter if asset acceptance is licensed for collection of debt in Utah? I quickly checked the Div. of Corp in Utah.gov and didn't see their name.Just a thought since Asset Acceptance appears to be sniffing me out as well.

I live in the jurisdiction of the Third District Court in Utah.

This is a small claims matter and the time for setting it aside in Utah has passed (30 days). However, I do believe that you "might" have an argument for improper service IF your file has no evidence that you were served by publication. The only way to know that is to go to the courthouse at 450 S. State Street and ask to see the file. I believe it would not have been sent to the archives yet.

If you can't afford an attorney or don't think the cost would be justified in seeing an attorney, go to Room W-15 on the first floor and talk to Cozzie (pronounced Cozy). She'w with Utah legal services and her help is pro bono. Tell her Deb and Apryl suggested you talk with her. All the forms you will need are on the ut.courts.gov website, but don't try to utilize them until you get some direction from Cozzie. She also had other forms that aren't on the site.