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Motion to Vacate a default Judgement

Date: Thu, 04/14/2005 - 10:01
Submitted by jtucker on Thu, 04/14/2005 - 10:01
Posts: 114
Credits:
[Donate]

I had reason to file this as I was blind sided with a default judgment. Here is a copy of the Motion I had to submit to have this default judgment withdrawn.

Center Township of Marion County Small Claims Court
200 East Washington Street, Suite G5
Indianapolis, IN 46204
(317) 327-5061 Fax: (317) 327-7844

Monarch Capital Corp, 251 East Ohio Street, Suite 860, Indianapolis, IN 46204,
Attorney : Bowman & Heintz,
Plaintiff,
VS.
my Name and Info

Defendant )
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) Case No.: 49K01-0411-SC-10487

MOTION TO SET DEFAULT JUDGMENT ASIDE AND STAY ENFORCEMENT OF JUDGMENT

Comes now Plaintiff in the above entitled cause, pro se, and respectfully moves the Court to set the Default judgment aside and stay enforcement of judgment for the following reasons:

ATTENTION: YOU MUST INCLUDE THE FOLLOWING

1.) Statement of not receiving notice of the hearing and:
I, [MY NAME] ., do hereby swear to the following. I never received notice of this hearing/action on the date noted in this case (First notice for claim dated 11/12-04) due to the fact I was not home and/or present in the State of Indiana. I was on a vacation at the time the requested service was delivered to my home, and upon my return did not receive and/or have available the said notice on recorded. Upon my inspection of the court records, I did recognize the description of said residence as being mine, but said notice was not attached to my door nor given to me in the case of it having fallen off said door upon my return.
This case came to my attention when I was over at my son's residence ( also Named [MY NAME], but the III) on March 27, 2005. I was visiting my grandchildren that day and as my son's girlfriend was cleaning up, she came across the “Notice Of Claim” dated 11/10/2004 that brought this case to my attention. As noted in the sworn notarized statement (see enclosure #1) from my son's girl friend, [Her NAME], they sometimes receive my Mail at their address which is just a few houses down in the Same sub-division as I live in (The Woods Of Eagle Creek), as I sometimes will receive mail that is addressed to my son. This is especially true when the said mail/correspondence is addressed to just “[MY NAME]”, “[MY NAME w/M] ” and/or [MY NAME w/MN], as this is a Name in common to us both as well as my grandson who lives there also named [MY NAME], IV. I can only conjecture as to why my son did not bring this matter to my attention, but he may have looked at it quickly as it was in no envelope and a crumpled condition, thought is was pertaining to him and decided to disregard it, BUT, his decision to disregard this should in no way affect my ability to respond to this action, esp. as I did not have the opportunity by having this delivered to me properly and to my address. Also of note, upon my inspection of this court case today (4/12/05), I noticed that the second service for the “Proceedings Supplemental to Execution” dated 12/18/05 (also another time period I was on vacation and not in the State of Indiana) was noted as being delivered to a Brn Brick, Tan Trim, Brn Door, does not match any description of my house/apartment I reside in (see attached enclosure #2 for picture of front of my residence), so I feel this second service is also invalid due to this and the fact I still have not found/received any notice to appear from this document and the only copy I have seen is the one in this Court's Records.

2. Statement of your defense to the claim.
I took advantage of receiving my Free Credit Reports that recently became available to residents of Indiana on March 2, 2005. Upon inspection of two of my reports (Equifax and TransUnion) I noticed an entry by FCNB for a Credit Card charge off. As I did not remember having this credit card account, I wrote to FCNB at the addresses listed in my credit reports and including a copy of the entries FCNB had made in regards to me to these Credit Reporting Agencies (see Enclosures #3 and #4 for copies of pages from CRA sent to FCNB). I would like to submit this letter dated March 15, 2005, from Card Services of Old Bethpage, NY, (see enclosure #5), Formerly FCNB (First Consumers National Bank), informing me that they could not find/locate any account information on myself as reported to the Credit Reporting Agencies. So, therefore, my defense against this collections effort is, if the Original Creditor can not locate/account for me having any account with them, how can I be collected on against said account? Also, I do not remember ever receiving and letters of collections from Monarch Capital Corporation and/or Midland Credit in regards to this debt and allowing me to dispute this as is my right under the fdcpa (Fair Debt Collections Practices Act).

Wherefore defendant respectfully asks that the above captioned case be set aside at the Court's earliest convenience.

___________________________________
Respectfully submitted
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been served upon Plaintiff at 251 East Ohio Street, Suite 860, Indianapolis, IN 46204 by US First Class Certified Return Receipt Mail the 12 day of April, 2005.

[MY NAME]. Judgment Defendant must provide
[MY Address] Complete and current address.

Jerry


Hi Jerry,

Fantastic effort and a great piece of information. :D :D

Your involvement in the forum is getting incredible every passing day. Keep it up and we hope to get many more participants like you in the near future. :)

Cheers,
Jason


Submitted by Jason on Thu, 04/14/2005 - 22:42

Jason

( Posts: 2430 | Credits: )


Letter from Small Claims court today.

:D :D :D :D :D :D :D :D :D :D :D :D :D :D :D :D

Letter said:

The Court sets the Defendant's Motion to set default judgment aside for hearing on June 1st, 2005 at 9:00AM.

YEA!

Now to hopefully to get my agruments for this in order to prevail :P

I oughta start a thread called "Diary Of a Do-It-Yourselfer" LOL..

and link/list my progress as I plod though this minefield of stuff :p, and BOY OH BOY am I learning a lot as I go.

Jerry


Submitted by jtucker on Sat, 04/16/2005 - 21:40

jtucker

( Posts: 114 | Credits: )


Hi jtucker,

Great news! :D :D :D :D :D :D

Quote:

and BOY OH BOY am I learning a lot as I go.


Yes, you are indeed learning a lot. Keep learning and also share your experiences and knowledge with us as you have always done.

Congrats 8) :) :lol: :D

Cheers,
Jason


Submitted by Jason on Mon, 04/18/2005 - 02:46

Jason

( Posts: 2430 | Credits: )


I received a document by an arbitration organization stating that an award was entered against me. I NEVER received any information in regard to an arbitration claim or that proceedings were taking place.

I had a line of credit which I fell behind on, due to the 9/11 attacks in NYC, which left me unemployed.

I contacted the agency to inform them of my plight, and tried to arrange for a deferment and assistance.

they sold the note to another agency and now that agency is trying to collect.

The documents filed with arbitration in March, 2005.

I never received any documentation until last week. the document stated that an award was entered against me, and that it was going to Civil Court for a final judgment.

How would I respond to this and how should I word it?

Any help is greatly appreciated.

thanks


Submitted by on Sun, 07/24/2005 - 13:01

( Posts: 202330 | Credits: )


People have reportedly removed damaging entries (such as judgments) from their credit files by using the following method:
[list=1]

  • You can hire one attorney who will help you to remove all the damaging entries from your credit file

  • The Attorney has to file a motion of service of Process. This will help in removing a damaging judgment from your credit file.

  • This will force the creditor to appear in the court with his attorney to prove that the initial legal process done by him was proper.

  • This action will help you in your favor because if the creditor has been paid, he will not appear in the court knowing the value of his time and the court costs.

  • If the creditor does not appear in the court, you will win this case by default. This way, your credit report will be free from the damaging judgment information and thus your credit file will be improved.


    • Submitted by ben on Wed, 08/03/2005 - 16:02

    ben

    ( Posts: 2034 | Credits: )


    I just received in the mail a default for not appearing in court for a citation. The City of Chicago
    has requested that I pay the maximum penalty for my ticket plus Admin costs of $25.00. I live in Boston and actually called the court to dispute the ticket. I was given a choice of paying the citation or disputing the citation. I wanted to pay the citation but there was not an amount for the citation that was given. I was also led to believe that they would mail me a payment notification but all I received was a default letter requesting that I pay the maximum penalty. I think this is an injustice.
    I would like to ask you what my current options are. If I don't pay would it come back to haunt me or is this only for the state of Illinois. The citation was for drinking in a public way. I cannot see how the punishment fits the crime in this scenerio. $525 for having a can of beer that was more than half way gone in a paper bag is going to cost me $525 which would probably be the same fine given if I were going 90mph in a 40mph area. I just feel in that in this case that I was not given proper notice or information. Please advise.


    Submitted by on Wed, 08/10/2005 - 08:12

    ( Posts: 202330 | Credits: )


    Hey I have removed a lot of negative info from my credit report, but now my wife's bank account got locked do to the court order :(((( can some one help??


    Submitted by on Wed, 08/31/2005 - 20:01

    ( Posts: 202330 | Credits: )


    discover card opened a credit card for my wife under J. Mackinstry instead of her name june and opened it in 2004 and showed us a 2001 application form i submitted in 2001 for myself as we had five discover cards. They balanced transfered $3,000 to that account and proceeded to dun her for payments at high interest rates. We reported by certified letter that it was not her account, identity theft opened it, don't sue, lets go to arbitration and discuss it. all for naught as the collectors ignored all of our [10] certified letters to discover [5] and [5] to the collectors. June never knew of the credit card until she was suponed and it went to court for default judgement. art mackinstry


    Submitted by on Tue, 10/04/2005 - 14:30

    ( Posts: 202330 | Credits: )


    I had won a small claims case because the defendent did not show up. The defendent filed for motion to set aside default judgement.My ? is on what grounds could he be granted a new hearing, and what should I do to fight it.


    Submitted by on Mon, 01/09/2006 - 12:04

    ( Posts: 202330 | Credits: )


    i got into a car accident about a year ago where both me and the plaintiff were switching lanes and i dont know if i was goin to slow or what but he tried to stop and ended up hitting my side of my car and knocking my mirror and then i got a ticket for improper lane change and i had a chance to dispute but i had to go to go back to school in LA so i just paid the ticket now he wants to sue for bodily injury that when the cops came he replied that he was not injured I was served papers but by the time i got them it was to late to respond, the papers ended up going to my old house, where my aunt lives and they served me default of judgement Please help


    Submitted by on Tue, 04/17/2007 - 13:40

    ( Posts: 202330 | Credits: )


    Get some legal assistance from an attorney. You had the chance to dispute earlier but you decided to pay the ticket. This leaves a proof that you were on the wrong side. Your attorney will help in filing a defense for you and get the evidence that the person was not injured in the accident. This is what I think will do if I was in your place.


    Submitted by fatb88 on Tue, 04/17/2007 - 14:32

    fatb88

    ( Posts: 218 | Credits: )


    This is a test


    Submitted by on Thu, 09/04/2008 - 17:40

    ( Posts: 202330 | Credits: )


    In addition to this wonderfully drawn motion here is some more helpful information
    I live in NY and in addition to the motion I went to court where they directed me to the law library where they game me a Motion to Show Cause which is a request for court and an affidavit
    Also remember that a default judgment means you did not show or answer a summons, as long as you can prove that you were not served or that the process was illegitimate you can state your case forcefully, provide as much evidence to the judge as possible however as stated before all this does is attempt to vacate the default judgment and return it the status that allows you to argue your case in court without being held hostage.
    You must be able to survive without the cash in your bank was you authorize release of fund, you are in effect admitting guilt. We are hoping that the judge sides with us we are praying but nevertheless this has showed us a lot about the process and how the system works. Thank you to all who help keep this forums alive and informed


    Submitted by on Thu, 09/04/2008 - 17:46

    ( Posts: 202330 | Credits: )


    In the motion to vacate example, it states...comes now the plantiff, pro se...should this read, comes now the defendant?


    Submitted by on Thu, 09/11/2008 - 12:53

    ( Posts: 202330 | Credits: )


    My son defaulted on a judgement, after paying 5 payments, due to his Daughter has Cancer. Now collectors want to garnish his wages and will not discuss monthly payments again. Anyway to get them to accept a new payment arrangement?


    Submitted by on Wed, 10/01/2008 - 18:26

    ( Posts: 202330 | Credits: )


    In the motion to vacate example, it states...comes now the plantiff, pro se...should this read, comes now the defendant?

    I'm using your example, but unsure of this part. Other party has an attorney and I'm pro se.

    In magistrate court (sm claims GA), I won. other party appealed. I didn't receive notice of date, so I missed and she got default judgment cancelling the order for money she owes me. Now I am filing motion to vacate and set aside judgment, so I can have a chance to re-present my case on her appeal. Since she has an attorney, I want to make sure everything is worded correctly.

    Spoke with an attorney who said he would charge more than I'm due to represent me in this motion. Thanks for your help!!
    Beverly


    Submitted by pricejunkmail on Mon, 10/13/2008 - 10:02

    pricejunkmail

    ( Posts: | Credits: )


    I WAS ORDERED TO APPEAR IN COURT FOR AN ACCOUNT CHARGED ON MY CARE CREDIT ACCOUNT (LIKE A CREDIT CARD BUT ONLY USED FOR MEDICAL PROCEDURES). IN 2006 I WAS CHARGED $1700 ON MY CARD BUT NEVER GOT THE PROCEDURE DONE. I NEVER GOT THE WORK DONE FROM THE DENTAL OFFICE. i RECIEVED MAYBE 2 OR 3 INVOICES STATING I OWED THE MONEY, THEN I CALLED CARE CREDIT TO LET THEM KNOW I DIDNT OWE THE MONEY BECAUSE I NEVER GOT THE PROCEDURE DONE, THEY TOLD ME TO CONTACT THE DENTAL OFFICE. I DID BUT THE LADY WAS NEVER IN AND NEVER CALLED ME BACK. SO I GOT LETTERS STATING THAT THEY WERE GOING TO GARNISH ME AND TAKE ME TO COURT. I NEVER GOT THE ONE THAT STATING THAT IT WAS GOING TO COURT BECAUSE I DONT LIVE AT THE RESIDENCE ANYMORE (ITS MY PARENTS HOUSE) AND MY FATHER SIGNED FOR IT AND DIDNT THINK ABOUT IT AGAIN THEREFORE I NEVER RECIEVED IT. SO NOW IT HAS GONE TO COURT AND THE JUDGEMENT WAS THAT THEY ARE GARNISHING MY WAGES! I HAVE CONTACTED THE COLLECTION AGENCY AND THEY SAY TO GET DOCUMENTATION FROM THE DENTAL OFFICE STATING THAT I DIDNT GET THE SERVICES DONE AND FAX TO THEM. I DID AND THEY SAY TO CALL THEM BACK NEXT WEEK BECAUSE THEU HAVE TO TAKE IT TO THERE CLIENT WHICH IS CARE CREDIT TO SEE WHAT THEY WANT TO DO. NOW MY QUESTION IS DO YOUTHINK WITH DOCUMENTATION AND THE DENTAL OFFICE BACKING ME UP STATING I NEVER GOT THE SERVICES DONE THEREFORE NEVER OWING THE MONEY CAN THEY STILL SAY I STILL OWE THAT MONEY AND CAN THEY STILL GARNISH ME? ARE THERE OTHER STEPS I CAN TAKE TO FIGHT THIS? ALSO, I AM NO LONGER WITH THAT DENTAL OFFICE THEY RELEASED ME BECAUSE THEY NO LONGER ACCEPT MY DENTAL INSURANCE ( IF THAT INFO HELPS).

    -PLEASE HELP


    Submitted by on Thu, 11/13/2008 - 14:45

    ( Posts: 202330 | Credits: )


    I had a past due hospital bill and it was turned over to collections. They called and kept calling. I tried to settle for 300-400 several times w them they satated no. The hospital wanted all of the money(another lie they bought the debt) the hopsp shows me owing 0 balance? I told them i will start paying every month in june. As soon as i made june+july 2010payments they sued me. I kept on paying the crt date was not till sept 2010 i went &they had kangroo court in the hallway w a card table. So i asked if i set terms w you right now on more payments till its paid will u wave court cost since we don"t need to go to court or see a judge? They said no, so i said i want my day in court. They put it off till nov 29,2010. They then continued till jan, then feb and continued again and i did"nt always get notice. I wasted time showing up 3x. So on feb 14,2010 when i showed+the judge was on vacation and the collection agency was not there i asked the crt clerks what is it up w these people wasting my time,playing games and i have been paying $20 to $40 a month every month still+ the ttl was only like $600 to begin with? They told me that the collection agency would keep on doing continuances again and again every month as long as i kept paying them and not to worry about it. So i kept paying then in march 18, 2011, i got notice from the court that i have a default judgement for not showing up, in march and i never even knew i had a date to go again. It is all so confusing with continuance afetr continuance. Now i am pissed off royal they got another $300 for in house attorney(yeah the collection company has there own on staff attorney) and another 89 + 32 in interest. I am out raged. I cannot afford an attorney at this time+legal aide would not help because its out of county. I want to vacate the judgement and get a change of venue. They would of never pulled all thz continuances in marion county ind. Help!!!


    Submitted by on Tue, 03/29/2011 - 19:55

    ( Posts: 202330 | Credits: )