Default Judgement entered 6+ years ago, anything I can do?
Cohen & Slamowitz got a default judgement (actually two) against me in County Court several years ago when I was living in Upstate, NY.
I had no idea about this until almost a year after the judgment, when I received a letter from an attorney offering to "help" me with my judgement by helping me with bankruptcy. I was so surprised and went right to the County Clerk's office, searched in the computer and sure enough Cohen & Slamowitz had two judgements against me, one on behalf of Midland Funding and the other on behalf of NRC Receivables 3 months apart from each other.
I requested the files and explained my story to the lady at the counter of the County Clerks office saying I was never served and the statute of limitations was way past on both debts they have obtained a judgement on. I read the documents in the file (both a cookie cutter version of each other with the basic info changed) requiring I submit an answer within 20 days. I also looked at the affidavit of service saying the process server saying a "women 40-50 years old, stating her name was (her first name, maiden name, last name) stating she was the mother of (my first and last name). This was so bogus first of all all my credit reports list my mother under relative using her hyphenated name with her maiden name, so anyone can see my mothers name. Second, my mother would never answer the day and say her name was (first, maiden, and last) when asked what her name was because she goes by her married name. Third, if my mother was served on my behalf she would give it to me. My mother would have no reason to basically screw me over and not even mention she was served on my behalf.
I had no idea idea about this and couldn't defend myself, causing a default judgement. I asked if there was anything I could do and the women at the counter of the County Clerks counter told me "there was nothing I could do." She told me this is how these companies make money. She explained NY was an "tack and run" state, where a process server could leave a summons anywhere on your property and the state of NY considers you served. She said she felt bad and thought it was disgusting but this is how these companies make money and again told me "there was nothing I could do."
I thought this was so for years, I later found out this was not true and I had a year to bring this in front of a judge and ask for the judgement to be overturned. Too late for that now. In the time since the down stairs was also "served" and the process server swore on an affidavit of service that he personally served my neighbor by knowing on the door asking for "xyz" and serving the person at the door who claimed to be "xyz." Even all the process server claimed to have served him personally my neighbor was on a plane in mid air the the exact same time he claimed to serve him. Hmm, that just proves the process server is not honest and perjures himself allowing people to victimized by Cohen & Slamowitz, Midland Funding, and NRC Receivables.
Cohen & Slamowitz has a history of deceptive collection practices to obtain judgements on debts where the statute of limitations is up.
I realize this was years ago but want to fight Cohen & Slamowitz because of the wrong they do to hard working people making them suffer because of debts from decades ago.
I asked if there was anything I could do to overturn this judgment even all it was years later. All that was accomplished was some doofus who spends his time posting thousands and thousands of posts spun it to make me look like an irresponsible "deadbeat who now wants to do something about it." The solution offered was to file for bankruptcy. That is a horrible idea because besides these two judgements I have good credit and a bankruptcy would stay on my credit longer than these judgements.
Yea, I do want to do something about it and shouldn't feel bad for realizing I was a victim years after it happened. When you're 22 and you are told "there is nothing you can do" being young and uneducated at the time I believed it and at a young age ignored it. I was not a lawyer or professional who knows what rights I have and what deadlines they must be exercised withing certain time frames. Law firms like Cohen and Slamowitz can wait until after the 6 years is up to find shady ways to get judgements they don't deserve against people but because I was young and dumb and didn't do anything about this judgment for over 6 years I'm supposed to feel like a low person, and just drop it.
I would love to fight this rather than pay this. I can take any criticism but would be very thankful if anyone could offer any advice or instructions on how to fight this.
I posted this because I found this website and was inspired by the people who fight back when companies like this try to take advantage of them.
Thanks.
There could be a way out of
There could be a way out of this but it is slightly complex. There are a couple of conditions you must meet to have a default judgment vacated; excusable default and lack of personal jurisdiction.
Excusable default is a 2 part episode. First you will need to show a reason (a real good one) why you missed the original court date. I believe you have one already. Second, you need a meritorious defense. You have that one in the fact that the debt is time barred. There is a hitch though. The time limit for vacating a judgment based on excusable default is one year from the date you were served. Since you were not served at all, this clock never started.
You can also have the judgment vacated on the grounds of improper service as well. Process servers are allowed to run either personal, substitute or conspicuous service. In your case, the second option seems to have been applied and in the sworn affidavit, it says the copy of the papers was given to your mom (which you believe is not true). Two things to take note of here. First off, while running a substitute service, the process server also has to mail a second copy of the summons to your last known residential or work address. You will need to check up and find out if you did receive any. If there was no second copy, that would be improper service. Also, process servers are known to lie and perjure themselves in sworn affidavits. It is a fact but since 6 years have gone by, it would be pretty hard to get at the process server on this count. If you think he/she lied, file a complaint against him/her with the NYS Department of Consumer Affairs.
You need to start the process by obtaining a copy of a "Order to Show Cause" form either from the county court clerk or online at www.courts.state.ny.us. On the form you need to detail why the court should vacate the judgment. Either establish lack of jurisdiction (improper service) or excusable default or both. If you have trouble in figuring out exactly what to write on the form, call the NY Financial Justice Hotline @ 212-925-4929 and they will help you out. If your bank account is being levied, wages are being garnished, a lien is placed on your property or any other emergency situation which is making it necessary for the judgment to be vacated as fast as possible, include it on your Order to Show Cause form.
In any case, one you have filled out the form, you will need to have the judge sign it. Either the court staff will take the form to the judge to get it signed or you will have to do it yourself. If you do manage to get the Judge to sign on the Order, you will next have to serve it on the attorney for the plaintiff (in your case it is Cohen & Slamowitz) for which the court will instruct you. You will also be given a return date to appear in court. The time frame is between 8 days to 3 weeks at the most.
On the return date you will have to appear in court and when your name is called out, you need to answer clearly (either the court staff or the plaintiff's lawyer would call you). In case the plaintiff attorney consents to your show cause order and talks about a settlement, ignore him and refocus on getting the judgment vacated. Ask to go before the judge and speak in case the plaintiff attorney does not consent to your show cause. Speak to the judge and again clearly state you (1) good reason for not appearing in court on the original date and (2) your meritorious defense (in your case the debt SoL). If your argument is strong enough, the judge will grant your order to show cause and vacate the judgment against you. Once the judgment is vacated you might probably be required to appear in court on an additional session.
In case you choose to approach this problem from the improper service angle, you will need to ask for a traverse hearing. The judge will hear both sides during this hearing and decide if you were properly served and vacate the judgment if he/she feels that you were not served properly.
Please keep us updated about the situation. I really want to find out if this worked through.
P.S: Do not let the court clerk discourage you by saying that "there is nothing that can be done". They do not care if you are being wrongfully sued and are programmed to say it in order to skip working on an extra case.
Proving that the debt was
Proving that the debt was time barred by the time you got sued should be easy. NY SoL is 6 years for revolving account and the time is calculated from the date of last account activity. If the date you got sued is past that point, you can prove that you were wrongfully sued.
Midland and NRC are both junk debt buyers which in most cases mean that they buy debts which are pretty much near or past the SoL and attempt to collect them, sometimes by nefarious methods such as in your case. In maximum cases, most of the paperwork is missing as well.
You will have to file in the county that C&S filed originally. There is no way around it. If you were suing them, then you could choose to file in Nassau county.
The letters they originally sent you were dunning letter, not summons. Any way you could look for the second copy of the summons which you were supposed to receive in the mail since your mom received the summons on your behalf?
This is a tight situation and since you were asking for an attorney, the best bet would be to consult a NACA lawyer. Those guys are aces when it comes to swatting CAs which violate consumers rights. No idea about the cost but one of the forum members have some knowledge about them. I will refer this problem to him.
You should start the process right away, file the order to show cause.
As for your job and GPA situation, I seriously do empathize. I know how hard it is. I figured that I had to get my crap together if I did not want to go homeless. At that point I was running a CC debt worth about $16K, one federal student loan and a sorry GPA of 2.8 (slipped from 5.3 in the time I spent acting like a lunatic). Law school did not make things easy along with the binge drinking and all-nighters.
Keep us updated about this situation. You should register with the forum as well. It would be easier for you to track your posts/replies to your posts.
Thank you so much for the
Thank you so much for the advice.
@ Anonymous do you or anyone else know of a good attorney to handle this in NY? How much $$$ would this run me?
@ Steve Barris if it matters I signed up for these two credit cards while away at school (actually filled out the applications at a friends college campus when I was visiting) I received the cards and bills at my address at college. These judgements were entered in a separate County in Upstate, NY that I lived at for a while, I no longer live in that county.
I am about 300 miles away from that court, I live in Suffolk County, NY (just about on the Nassau County line, Nassau County Courts are closer than Suffolk) and Cohen & Slamowitz is located in Nassau County, NY. Granted we are in separate counties but could I file this in Nassau County courts since Cohen & Slamowitz is located there and that is the closest court to me? Or must this be done in the County where the judgement was entered?
If I must do this in the county where the judgement was entered can I bring this to the "justice" in village court who hears misdemeanor and small claims cases to sign?
I really have no idea if Cohen & Slamowitz sent me a copy of the subpena, I do remember for about a year before that and for many years following they would send me numerous letters a week (they had 3 accounts from me from when I was in college) looking like court documents (actually after I saw what was in the file at the county clerk) they were a cookie cutter of the subpena that contained the "amount" of the debt (which is now $3,500 for originally a $500 balance. But I noticed at the bottom it said "this is an attempt to collect a debt." So I called up C&S who informed me it was not a subpena, but a "tool" to get debtors to contact them. I told them the SOL was up, stop bothering me or sue me. I told them the SOL was up so they couldn't collect. They corrected me and told me "they couldn't get a judgement but bc of SOL but could make every attempt to collect this debt for eternity." I basically told them to have fun wasting their resources trying to collect the debt where the statute of limitations was up, she informed me they would call within the guidelines of the law until they got their money. So I just ignored these letters as they were all the same and I got about 3 of them a week, if they slipped an actual subpena in there, maybe? Trickery, but I wouldn't expect anything less from them.
I just want to take care of
I just want to take care of this because I will be getting my bachelors degree in Aug and fear an employer will run my credit and seeing these two judgements could cost me a job.
As far as hardship, I have not had any bank accounts seized or property for them to take because I don't have anything. In the past decade since I dropped out of college I have been working crap jobs until I "got with it" and went back to school a couple of years ago. These judgements have caused me hardships because I am instantly denied private school loans despite having a good credit score and on time payments with my current credit cards and cell phone, I am instantly denied because I have judgements. My federal "guaranteed" loans are just enough to cover my tuition. While others can live comfortably and focus on studying because of loans I must as an independent contractor traveling a lot out of the week. Since I took this job to survive my GPA has dropped from a 3.8 to the low 3.2's. I work hard still have a good GPA but that drop from a 3.8 to a 3.2 is significant when looking for a decent job because a lot of positions I was interested in want a minimum of a 3.5 gpa. I was interest in going to graduate school but it's expensive and "guaranteed federal student loans" for grad school only allows $20,500 a year so I need a private loan for at least $10,000 a year that I would be instantly turned down for because of judgements. So no, I don't have any "emergency" hardships but these judgements have caused me hardships.
Should I request any validation of the debt or a breakdown of the balance? Will I have to prove that the SOL was up when the originally filed the case? Because I don't have any of that.
Cohen & Slamowitz doesn't have any of the original documents, they told me so. They started calling me again over a year ago I talked with a nice lady who worked with them who told me they didn't have any of this and didn't even know what the original CC balance was when I defaulted. I offered to pay the original balance, she didn't know it. I offered to pay a percentage over what they paid they for this debt so they would profit and everyone would be "happy." This is when I found out how companies buy debts fir pennies on the dollar as part of a package deal. I was part of this package deal and was told "some are profitable some are not." They make money off of some and nothing off of others so she "had no way of determining a value of what my debt was worth when it was purchased." They don't even know who/what is in them.
I cannot prove the SOL is up, but was told they have nothing but what they say I owe, not even the original balance. Cohen & Slamowitz sued me knowing they didn't have any of the required proof they needed. That just gives them more of a cause to make sure I don't show up for court.
My original plan (before I found this site) was to go in front of a judge in the original county the judgement was from and prove it was more likely than not I was improperly served, and to show the past bad acts of Cohen and Slamowitz and the process servers they hire. One of whom was arrested in NYC in a well know case where he lied and said he was in multiple parts of the state, minutes apart from each other. This man admitted to wrongfully serving people. There was also a case where in (I think) Schuyler County moved to vacate all judgements entered on behalf of Cohen & Slamowitz because of the law firms bad actions.
I was hoping based on those facts the judgement against me should be set a side and if Cohen & Slamowitz wanted they could refile their case.
Also, the Judgements are entered against me from (1) Midland Funding, and (2) NRC Receivables, this is how it's listed on my credit report. Cohen & Slamowitz represented these companies as their attorney, but according to Cohen & Slamowitz they now own this debt. What's up with that?
I am afraid that when I am done with school and get a real job Cohen & Slamowitz will start calling my job, making look bad.
It would be difficult to
It would be difficult to fight on your own, especially when so many years have passed. You need expert legal assistance. Consult an attorney and find out what he has to say about this thing.