motion to vacate

I might be too late in responding to this post but it sounds like you got this one in hand...let us know how it went. They should vacate due to the improper service, then you should immediately DV them since I don't think they have to comply unless you ask for it during discovery during the actual trial.

definitely post up how it went, and we will be glad to help you with anything we can from there. Sounds to me like they should have an easy time of vacating this one due to improper service.

I asked this question on another thread but haven't gotten an answer yet.(We kind of got off topic.) Is it possible to file a motion to vacate an unsigned consent judgment? The CA has instructed their attorney to file it in court and sent us three copies, trying to get us to sign (YEAH...RIGHT). Or should we just not worry about it and wait to see if a summons is served? It's unsettling to know that it is 'looming' at the courthouse for 91 days.

dutchtuff--

a consent judgment is when the plaintiff and defendant come to an agreement on terms, then present that agreement to the judge to end the suit. If you sign it, then it goes to the judge, and the judge can then enter it as judgment, and it will be enforceable. Do NOT sign it. They are trying to get you to hang yourself. If you agree to the terms they listed, thats one thing, but I suspect a lot of attorneys send this to someone that they are suing in the hopes that they will sign it out of fear, then they win their case. ONLY sign it if you agree 100% with the terms they list in there.

It is not something you woudl have to have vacated, If you dont agree you dont sign it and you make it known that you refuse to consent to that. Also, a motion to vacate a consent judgment would be pretty hard to win--you cannot say you didnt know about the suit because you consented to the judgment, and you cannot say that the account isnt yours because by signing the consent decree you take responsibility for the debt.

hang on, I just got this--you have gotten a consent decree, but you have not ever been served?? What you need to do ASAP is check with the clerk of courts in the court in your county--its quite possible that they are trying to sneak a default judgment past you, or its also possible that they are trying to illegally make you think youre being sued when you arent. Both of those are illegal, and you have recourse either way. Check with the court clerk's office to see if a case has been filed against you. If one has been, you need to IMMEDIATELY write up a letter to the court. In this letter, you need to state that you were never served summons(this violates the Rules of Civil Procedure in each state--check in your state to get the actual statute and include it in your letter). Inform the court that you were only notified of the suit when you received the plaintiff's attempt to get you to sign a consent decree. This has deprived you of your right to due process and the court should throw their suit out because of it.

If you find that they have NOT filed a case against you, then you have them in fdcpa violations. Check the letter they sent you--it should have some kind of listing on it usually near the top or on the first page that will tell you the county that they filed their case in. It is also possible that they filed this in a different county than the one you live in--illegal, but happens a lot, they try to get a default judgment on you by trying to get around the law.

Skydivr, thanks for the great response! I think I pretty much have a handle on how the consent judgment works but I don't know what the (CA) attorney is trying to pull. We never agreed to anything! Intimidation, I guess, like you said. After the attorney sent us the three copies to be signed, NOT!, we went down to the courthouse because it did have a case number and sure enough, there it was! The clerk told us that a consent judgment can just sit there until the attorney decides to serve a summons. It expires in 91 days but can be renewed at the attorney's discretion. We came home and I immediately typed up a strongly worded 2ndDV letter and sent it to both the attorney and the CA, CMRRR. I also included a C&D and a statement that this debt is outside the SOL! (DOFD was in 2000). Got the green card back from the CA but not the attorney. It's been almost a month. The CA sent me a simple verification that didn't tell me anything I didn't already know. So that's where we're at...just sitting around waiting to see what they do next. I just thought that because this debt is out of SOL we could get rid of the consent judgment sitting in the courthouse...it's kind of unsettling. I guess if there's no actual binding judgment, yet, there's nothing to vacate... as my user name says, I'm Dutch, and that means stubborn, and won't give up without a fight! I wonder if I can ( or should?) sue them for attempting to collect a debt that's time barred? What do you think? I don't want to cut my own throat, either....

I wonder if you could file a motion to dismiss, based on:

- Lack of validation

- SoL

Thanks, unclewulf, I was wondering the same thing. I know that I have a strong case for the SOL....and I know they can try to collect on a debt outside of court til h...ll freezes over, but isn't it illegal for them to attempt to collect in court on a time-barred debt? As far as the validation goes, they have actually provided me with the minimum required by the fdcpa....original creditor, mini miranda, etc., but they still haven't provided any details such as an original contract, how they arrived at what they say I owe, proof that they own the debt, etc... and it's my understanding that they don't have to legally provide you with all that until it goes to court. It just seems that since they've actually filed a consent judgment with the court there should be some kind of action we could take in our defense....

You know what the real hoot is? They've actually reported to the CRA that this account was 'previously disputed- now resolved'. An FCRA violation in itself! I questioned that in my letter to them as well, but of course, got no answer.

Already got my letter to the CRA's in the works...

[quote=dutchtuff]...but isn't it illegal for them to attempt to collect in court on a time-barred debt?[/quote]

Yes, it is. That's why it's called the Statute of Limitations, instead of the Statute of Suggestions. :wink:

If it goes to court, you'll have to raise the SoL as a defense yourself. The judge can't do it for you, it isn't automatic.

I know I have to bring up the SOL myself in court...and I've already pointed it out to the CA in my letter to them. I guess if they want to assume I'M STUPID and sue me in court anyway, I have no problem proving them wrong! I'm still wondering, though if I can file a motion to dismiss a consent judgment?

Statute of Suggestions... :lol: you crack me up..once again!

[quote=dutchtuff]I'm still wondering, though if I can file a motion to dismiss a consent judgment?[/quote]

Maybe I'm misunderstanding you here, DT. We're talking about a consent judgement form that was sent to you to be signed, right? As far as I understand, you did not sign said form. No signature from you [consent] = no consent judgement. They'll have to take you to court and try to do it the old-fashioned way. When they try that, bring in the SoL, and move that the case be dismissed with prejudice as a time-barred debt.

That is correct..it's unsigned. Boy, they will stop at nothing in their attempts to intimidate. It won't work with me though.

So, like you said..guess we'll have to wait and see if they serve a summons. Then we can go have this thing dismissed and report to the FCRA that they falsely reported this debt was resolved!