<\/p>\n\n\n\n
By Ryan C. Wood<\/a><\/p>\n\n\n\n Yeah, I know you were not. That does not mean a judgment, that is, a\ndefault judgment was not entered against you accruing judgment interest at 10%\nper annum (California Law). You were\nsued and the process service company committed a fraud when serving you. They lied about who they served and even\npossibly when you were allegedly served. \nThe process service company then sent a proof of service to the attorney\nthat filed the lawsuit against saying you were somehow personally served with\nthe summons and complaint. The attorney\nthat filed the lawsuit says great and files the proof of service with the\ncourt. You never knew about the lawsuit\nso time to answer the complaint expired and the plaintiff requested and\nreceived a default judgment against your for $11,000. The original issue was a credit account you\nstopped paying two or three years ago; breach of contract. Your bank accounts can be levied on. Your wages can be garnished. A judgment lien can be recorded against your\nhome or other real property if you own any. \nNot good.<\/p>\n\n\n\n The lawsuit filer does have information about you\nthat may or may not still be accurate. \nYou filled out an application for the credit card or some other type of\ncredit account. You also made payments\non the debt and your checks provide additional information. Your address, phone number and bank account\ninformation.<\/p>\n\n\n\n You are now finding out about the lawsuit because\nyour employer received a wage garnishment notice or your bank account was\nlevied on. I know, this is the first you\nare hearing of this lawsuit. The lawsuit\nwas probably filed over five years ago and has now grown in amount\nsubstantially given the 10% judgment interest and addition of attorneys\u2019 fees\nand expenses. So what happened?<\/p>\n\n\n\n Top\nFive Indicators The Lawsuit Was Served Illegally<\/strong><\/p>\n\n\n\n 1. The Debt or Judgment Is Being Enforced\nBy a Third-Party<\/strong><\/p>\n\n\n\n These are in no particular order, but the judgment\nwill probably be held or enforced by a third-party collection agency or debt\nbuying company and not the original creditor you did business with. I have never dealt with this issue when JP\nMorgan Chase, N.A. or Wells Fargo, N.A. is the named plaintiff and sued someone\nfor breach of contract for nonpayment on a credit card. It is always some company you will never have\nheard of that bought the original debt or was assigned the right to enforce the\ndebt. <\/p>\n\n\n\n Why is this? \nIt is called capitalism. The\nthird-party collection agency purchased the original claim against you for less\nthan the amount originally owed. It is\nin their financial interest to make the amount owed as large as possible\nperiod. If you try and settle with them\nthey can ask for more money and they make more money. If they garnish your wages they can get more\nmoney. <\/p>\n\n\n\n It is like anything with high risk. They have to balance out all of the claims\nthey purchase that they get nothing on with the ones they do get paid on. <\/p>\n\n\n\n 2. The Default Judgment Is Being Enforced\n5 Years Or More After It Was Entered<\/strong><\/p>\n\n\n\n Overwhelmingly the default judgment is being\nenforced as long as possible from the entry of the illegal default\njudgment. There are two reasons for\nthis. The main reason is to make your\nability to prove the service of the summons and complaint was illegal. Obtaining records and other proof of your\nwhereabouts from 7 years ago can be challenging. If you were working at the time the proof of\nservice says you were served at your home do you still have the pay statement\nevidencing this? If you are no longer at\nthat job will your former employer help and provide you pay statements from 7\nyears ago? If you were living at an\naddress that is different than the address listed on the proof of service do\nyou have your rental agreement from 7 years ago? It can be very challenging to obtain evidence\nof your circumstances from 7 years ago. \nSo they wait. The default\njudgment is good for 10 years and then can be renewed.<\/p>\n\n\n\n The other reason is the judgment interest keeps\naccruing. If the default judgment was\nonly $3,500 the judgment interest here in California accrues at 10% per\nannum. In 7 years that $3,500 default judgment\nis now includes $2,450.96 in interest for a total of $5,950.96. Why enforce the default judgment and only\nreceive $3,500 when we can just wait, let the interest accrue and make your\nability to prove the service of the lawsuit was not proper more difficult. <\/p>\n\n\n\n 3. The Proof of Services Says You Were\nServed By Substitute Service<\/strong><\/p>\n\n\n\n So what is substitute service? It is another form of personal service. It means someone else was served with the\nsummons and complaint other than you. In\nCalifornia there are a number of requirements to substitute serve someone, but\nthe general requirements are three or more failed attempts at serving you at\nyour dwelling house or usual place of abode. \nThen someone you live with over the age of 18 can be served\ninstead. The process server will give\nthe summons and complaint to your roommate, spouse or some other person over\nthe age of 18 that also lives in you dwelling house or usually place of\nabode. Then the summons and complaint\nmust be mailed to you at that service address as well. A declaration of due diligence is filed with\nthe court describing all of the attempts at service and a description of who\nwas served on your behalf.<\/p>\n\n\n\n You can be served at your place of employment if the\nsummons and complaint are left with your boss or someone in charge. There are issues with personal service by\nsubstitute service at your place of employment though given the nature of\nit. You can even be served personally\nbut publication believe it or not. <\/p>\n\n\n\n Time and time again there is a description of a\nhuman being you have no idea who that person is. If your name is Maria Rodriguez they will\ninsert a description of a Latino person male or female. Yeah, I know you have no idea who that person\nis because they never substitute served them. \nIt is just a made up person. The\nproblem is height and age are difficult to know when just looking at someone,\nso there is some gray area. <\/p>\n\n\n\n The thing is many times someone is living\nalone. Or the substitute service was at\nan address you no longer lived. There is\nabsolutely no one to substitute serve. \nNonetheless there is a proof of service signed under penalty of perjury\nthat says you were personally served and a default judgment was entered against\nyou. <\/p>\n\n\n\n 4. The Lawsuit is a Collection Lawsuit For\nBreach of Contract<\/strong> \n<\/p>\n\n\n\n I am talking about primarily collection lawsuits for\nvarious debts such as credit cards, medical debts or personal loans. For whatever reason you stopped making\npayments therefore breaching the contract. \nIt is easy to hide a lawsuit for an unpaid debt. It is not possible to hide a lawsuit between\nneighbors for building a fence on the others property or a lawsuit that is\nfiled to actually fix a problem in real life. \nThe problem cannot be ignored for years and a party wants it resolved and a lawsuit is filed to have the fence\nremoved. It is very easy to hide a\nlawsuit for an unpaid bill and have the lawsuit move forward without your\nknowledge. <\/p>\n\n\n\n 5. You Find Out About The Lawsuit Due To\nCollection Efforts<\/strong><\/p>\n\n\n\n Okay, so now 7 years have gone by and the third party collection company that can enforce the illegal default judgment comes to life. Seven years of interest has accrued so they can maximize their profit. You then get notice of wage garnishment from your employer\u2019s payroll department. Or you get a notice of levy on your bank accounts from your bank. What is this? It is the illegally obtained default judgment coming back to haunt you. In California your wages can be garnished up to 25%. It is usually crippling to most people. Deduct 25% of your income and see if you can get by each month. This is when bankruptcy attorneys<\/a> usually get wind of this problem. <\/p>\n\n\n\n So\nWhat To Do Now?<\/strong><\/p>\n\n\n\n The first thing you need to do is investigate how\nthe plaintiff or third-party plaintiff collector obtained the default judgment\nagainst you at all. You will need to\nobtain the complaint and proof of service that were filed with the Court. These documents in some jurisdictions were\nfree online. These days like many things\nthat used to be free from the government there is a fee. You may have to create an account and then\npay around a $1.00 per page for the documents. \nYou need to know how and when the plaintiff and now judgment creditor alleges\nyou were served with the summons and complaint. \nFirst was the debt your debt? Do\nyou remember incurring the debt and then not paying it? Next review the proof of service for the date,\ntime, location and description of the person that was allegedly served. If there are any inaccuracies or impossible\ncircumstances listed you may or may not want to seek advice of counsel about\nseeking recourse. <\/p>\n\n\n\n Getting\nRid of the Default Judgment<\/strong><\/p>\n\n\n\n So this is not so simple and it is not free. If the service was illegal the process server\nor plaintiff should have to pay for getting rid of the default judgment. Nothing is ever that simple though. The first thing you must consider is what is\nthe recourse if you are successful in getting the default judgment\nvacated? Can the plaintiff just turn\naround and then immediately serve you properly and proceed to collect on the judgment? If so what good is spending the time and\nmoney to get rid of the illegal default judgment? If you get rid of the default judgment do you\nhave funds to try and settle the debt or make payments so the plaintiff will\nnot continue to seek a judgment against you again? Can the case be dismissed entirely with\nprejudice with prejudice so you never have to worry about it again? There are many issues to discuss as to what\nto do about an illegally obtained default judgment. Everything takes time and money and there is\nno guarantee the Court will vacate the default judgment or make the other party\npay for the time and expense to make it right.<\/p>\n\n\n\n Bankruptcy\nCould Be The Answer<\/strong><\/p>\n\n\n\n Sadly filing for bankruptcy and obtaining a discharge could be the cheapest, quickest and easiest way to stop the wage garnishment or bank levy. Filing bankruptcy fast enough can even get back garnished earnings or levied funds. Please contact a bankruptcy attorney<\/a> in your jurisdiction for more information about whether you qualify to seek relief from your debts via bankruptcy. Bankruptcy will make it all go away forever by federal court order; an order of discharge. You have to file for bankruptcy to get it though\u2026\u2026\u2026\u2026. <\/p>\n","protected":false},"excerpt":{"rendered":" By Ryan C. Wood Yeah, I know you were not. That does not mean a judgment, that is, a default judgment was not entered against you accruing judgment interest at 10% per annum (California Law). You were sued and the process service company committed a fraud when serving you. They lied about who they served […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[340,326],"tags":[341,331],"_links":{"self":[{"href":"https:\/\/www.fremont-bankruptcy-attorney.com\/blog\/wp-json\/wp\/v2\/posts\/979"}],"collection":[{"href":"https:\/\/www.fremont-bankruptcy-attorney.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.fremont-bankruptcy-attorney.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.fremont-bankruptcy-attorney.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.fremont-bankruptcy-attorney.com\/blog\/wp-json\/wp\/v2\/comments?post=979"}],"version-history":[{"count":2,"href":"https:\/\/www.fremont-bankruptcy-attorney.com\/blog\/wp-json\/wp\/v2\/posts\/979\/revisions"}],"predecessor-version":[{"id":981,"href":"https:\/\/www.fremont-bankruptcy-attorney.com\/blog\/wp-json\/wp\/v2\/posts\/979\/revisions\/981"}],"wp:attachment":[{"href":"https:\/\/www.fremont-bankruptcy-attorney.com\/blog\/wp-json\/wp\/v2\/media?parent=979"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.fremont-bankruptcy-attorney.com\/blog\/wp-json\/wp\/v2\/categories?post=979"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.fremont-bankruptcy-attorney.com\/blog\/wp-json\/wp\/v2\/tags?post=979"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}