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Thread: Vacate an Old Judgment and/or Sue for FDCPA Violations?

  1. #1
    dbq
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    Question Vacate an Old Judgment and/or Sue for FDCPA Violations?

    I was served by a collection attorney in '05 for an old CC debt. I did a ton of research and answered pro se asking for discovery. interrogatories and anything else that was relevant. I thought they had to respond to me but I didn't hear anything back from them and with no experience, was outmaneuvered as the next thing I know, my wages had been garnished. The court listed it as a "default judgment" although it really wasn't since I did submit a response before the original deadline. Would FRCP 60(a) - Clerical Error or FRCP 60(b) - Substantive Error have any angle here? Is it legal for them to not answer my response and me have no notice of the next court date? This seems to be a miscarriage of justice.

    Long story short, in '06 my husband was diagnosed with terminal cancer. My job involved travel and when I needed to stay home to take care of him, I was fired in Jan of '07. He passed away two weeks later.

    No job, garnishment stopped but the attorney went back to court this past year and I have to go to court for a debtors exam in March unless I can work it out with the CA ahead of time.

    I still have no job but do have a home and 2 cars paid in full. No stocks, no 401K - just a bit of savings to live on. I obviously messed up doing this pro se to start with and am scared to death. I want to protect what little I do have and don't know how.

    Now the other issues I think may have some merit:

    This CA is a known scumbag collection attorney in Iowa. I'm sure he had no real documentation of the debt and would have lost the case had I known the ins and outs of the court process. He is really going after me hard with demand for debtors exam so he's obviously not going to give up. I am now fighting cancer myself so I haven't had much time or energy to fight this but I am running out of time with the March debtor exam approaching.


    I've read various posts all over the web that say you have no chance of getting an old judgment vacated unless you weren't served properly. I assume that since I responded to the original lawsuit, I have no grounds to claim service was somehow improper?

    On the other hand, I've also read that a court will set aside a judgment if you can show that the judgment was entered in error, that you had good reason for failing to respond to the summons, and/or that there is a good chance that you will prevail if the judgment is set aside and the case reopened. Petitions brought under Section 2-1401 are addressed to the discretion of the court. In other words, the court is allowed to relax the requirement of due diligence where equity and good conscience require it. Would the details I've posted above be grounds for a court to vacate even at this late date?

    Finally, in my research, I came across a very interesting case (United States District Court, Northern District of Illinois):
    Cotton vs. Asset Acceptance. Cotton went after AA (and won!) for FDCPA violations after they won a judgment against him for a purported debt for federally-regulated telecommunications services. Cotton’s federal lawsuit does not target the state court’s decision, but instead targets Asset Acceptance’s alleged practice of filing and threatening to file lawsuits conduct in time-barred FDCPA claims. He was specifically not seeking review of his state court judgment. Had he been doing that Asset Acceptance could have won dismissal on the merits of that argument based on Rooker-Feldman and Res Judicata. Cotton maintains that because AA allegedly violated the FDCPA before and during the course of the state court litigation, his FDCPA claim does not fall under the Rooker-Feldman doctrine. The court discussed Rule 12(b) at some length as well. I can't post a link to the full document since I'm new here but PM me if you'd like me to send it to you.

    This case gives me hope that one could bring a federal case against any CA that has violated the FDCPA even though they have already won a judgment against you - I'm just not sure on the time limit. I have heard that there are many other cases out there similar to this one but I searched long and hard before I ever turned up Cotton (that may just be because of my very limited knowledge in this arena). Can anyone give me some direction on finding some that may be relevant? I am particularly trying to find cases that include a judgment that is 2or more years old because of the '05 date of my judgment.

    Your thoughts?

    Thanks much for any assistance!"

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    HONORED GUEST hannah's Avatar

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    Re: Vacate an Old Judgment and/or Sue for FDCPA Violations?

    Quote Originally Posted by dbq View Post
    I was served by a collection attorney in '05 for an old CC debt. I did a ton of research and answered pro se asking for discovery. interrogatories and anything else that was relevant. I thought they had to respond to me but I didn't hear anything back from them and with no experience, was outmaneuvered as the next thing I know, my wages had been garnished. The court listed it as a "default judgment" although it really wasn't since I did submit a response before the original deadline. Would FRCP 60(a) - Clerical Error or FRCP 60(b) - Substantive Error have any angle here? Is it legal for them to not answer my response and me have no notice of the next court date? This seems to be a miscarriage of justice.

    Long story short, in '06 my husband was diagnosed with terminal cancer. My job involved travel and when I needed to stay home to take care of him, I was fired in Jan of '07. He passed away two weeks later.
    Sorry to hear about your loss. That said, FCRP is Federal Rules of Civil Procedure and do not apply in state courts. I am going to take a leap here and presume you were not in federal court. How much was the debt? What was the court you received the judgment in?

    Quote Originally Posted by dbq View Post
    No job, garnishment stopped but the attorney went back to court this past year and I have to go to court for a debtors exam in March unless I can work it out with the CA ahead of time.
    How much is left of the debt?

    Quote Originally Posted by dbq View Post
    I still have no job but do have a home and 2 cars paid in full. No stocks, no 401K - just a bit of savings to live on. I obviously messed up doing this pro se to start with and am scared to death. I want to protect what little I do have and don't know how.
    He knows full well what assets you have as I am sure he has seen your credit report. What a vulture!

    Quote Originally Posted by dbq View Post
    Now the other issues I think may have some merit:

    This CA is a known scumbag collection attorney in Iowa. I'm sure he had no real documentation of the debt and would have lost the case had I known the ins and outs of the court process. He is really going after me hard with demand for debtors exam so he's obviously not going to give up. I am now fighting cancer myself so I haven't had much time or energy to fight this but I am running out of time with the March debtor exam approaching.


    I've read various posts all over the web that say you have no chance of getting an old judgment vacated unless you weren't served properly. I assume that since I responded to the original lawsuit, I have no grounds to claim service was somehow improper?
    Not from what you have stated.

    Quote Originally Posted by dbq View Post
    On the other hand, I've also read that a court will set aside a judgment if you can show that the judgment was entered in error, that you had good reason for failing to respond to the summons, and/or that there is a good chance that you will prevail if the judgment is set aside and the case reopened. Petitions brought under Section 2-1401 are addressed to the discretion of the court. In other words, the court is allowed to relax the requirement of due diligence where equity and good conscience require it. Would the details I've posted above be grounds for a court to vacate even at this late date?
    Again you are relying on federal rules which are not going to apply in state courts.

    Quote Originally Posted by dbq View Post
    Finally, in my research, I came across a very interesting case (United States District Court, Northern District of Illinois): Cotton vs. Asset Acceptance. Cotton went after AA (and won!) for FDCPA violations after they won a judgment against him for a purported debt for federally-regulated telecommunications services. Cotton’s federal lawsuit does not target the state court’s decision, but instead targets Asset Acceptance’s alleged practice of filing and threatening to file lawsuits conduct in time-barred FDCPA claims. He was specifically not seeking review of his state court judgment. Had he been doing that Asset Acceptance could have won dismissal on the merits of that argument based on Rooker-Feldman and Res Judicata. Cotton maintains that because AA allegedly violated the FDCPA before and during the course of the state court litigation, his FDCPA claim does not fall under the Rooker-Feldman doctrine. The court discussed Rule 12(b) at some length as well. I can't post a link to the full document since I'm new here but PM me if you'd like me to send it to you.

    This case gives me hope that one could bring a federal case against any CA that has violated the FDCPA even though they have already won a judgment against you - I'm just not sure on the time limit. I have heard that there are many other cases out there similar to this one but I searched long and hard before I ever turned up Cotton (that may just be because of my very limited knowledge in this arena). Can anyone give me some direction on finding some that may be relevant? I am particularly trying to find cases that include a judgment that is 2or more years old because of the '05 date of my judgment.

    Your thoughts?

    Thanks much for any assistance!"
    What violations did they commit?

    Are you in Iowa or Illinois?
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