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Old 03-31-2018, 06:18 AM
 
7 posts, read 2,997 times
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Quote:
Originally Posted by Larry Caldwell View Post
A memorandum is just a memorandum. It sounds like they are throwing numbers at a wall to see if any stick. If you were not served by a process server to answer a suit, there is no judgment. The first thing I would demand is a copy of the judgment, signed by a judge, with all supporting documentation, including the process server's affidavit.

Tell them it was not your car, and to get their paperwork in order. If pops was served and ignored the summons, it's on him. The statute of limitations on torts is typically 3 years, though that might vary by state and circumstance. You probably were on the title in 2014, but the repo company was responsible for securing it. If they claimed ownership and took possession of the car, let them deal with it.

Keep an eye on your credit report, and challenge any negative info relating to this as an attempt at a fraudulent collection by the collection agency. It happens all the time.
Is there a way they could have obtained/requested a default judgement?

I checked the court website docket for the case and it seems they change the target party to take on the judgement to me in 2016. However I have not heard of anything until 2 months ago when the phone call came. I dont really understand what a tort is, but if they changed the person liable for the damages to me (the cosigned party), does that mean they were well within the supposed statute of limitations on torts???

Thnk you for your advice! this was very informative.
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Old 03-31-2018, 08:05 AM
 
Location: Connecticut
3,535 posts, read 2,690,962 times
Reputation: 2305
Quote:
Originally Posted by Forager22 View Post
Is there a way they could have obtained/requested a default judgement?

I checked the court website docket for the case and it seems they change the target party to take on the judgement to me in 2016. However I have not heard of anything until 2 months ago when the phone call came. I dont really understand what a tort is, but if they changed the person liable for the damages to me (the cosigned party), does that mean they were well within the supposed statute of limitations on torts???

Thnk you for your advice! this was very informative.
If that judgement is legit, unfortunately you will really need a lawyers help. If you have a law school in your area sometimes students will help low income people for free. I don't know if you're low income just putting that out there.

When a plaintiff files a case the defendant (which is you) has to be "served" a copy of the complaint. They are usually served via "certified mail." If the complaint can't be served that way they have to hire a "process server" or "sheriff" or whatever your state calls them to serve you in person.

If you have not been served any papers in person, that means you were most likely served via certified mail. It's possible that someone at the address signed for the mail and didn't tell you. No matter how you slice it no one can go to court and get a "judgement" without the person being sued knowing about it.

If you did get papers and didn't respond which is called an "answer" the court can enter a default judgement in the plaintiffs favor. Knowing this I would go to the court and ask how you were "served."
They will have a record of it.

You may be able to reopen the case even if they have proof you were "served", but that's something a lawyer would know better than I.
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Old 03-31-2018, 03:40 PM
 
Location: Ohio
17,998 posts, read 13,233,625 times
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Quote:
Originally Posted by Forager22 View Post
Is there a way they could have obtained/requested a default judgement?
Yes, I explained that in my previous post.

Collectors are notorious for filing law suits and serving the debtors at their previously held address.

Since you live at your current address and not your previous address, you're not aware you're being sued and thus do not respond to the complaint. Failure to respond to a complaint results in a motion for judgment by default.

Most people are under the false impression you have to be "personally served" by a bailiff, sheriff or process server. The majority of collection law firms use process servers, since it's cheaper and usually faster than paying for a bailiff/sheriff to serve the summons.

The procedure varies by State, but generally the process server makes 1 to 3 attempts to personally serve, then the law firms sends the complaint via registered mail, and then finally regular mail (since no one responds to the registered mail).

Again, since the debtor has never been served, the debtor doesn't file an answer to the complaint, and the collection law firm files a motion for default judgment.

The time allowed to answer a complaint is 14 to 30 days, depending on the State.

You can check your local court's Rules of Civil Procedure for specifics.

Quote:
Originally Posted by Forager22 View Post
I checked the court website docket for the case and it seems they change the target party to take on the judgement to me in 2016. However I have not heard of anything until 2 months ago when the phone call came. I dont really understand what a tort is, but if they changed the person liable for the damages to me (the cosigned party), does that mean they were well within the supposed statute of limitations on torts???

Thnk you for your advice! this was very informative.
They cannot "change the target party" without first naming you as a Defendant on the complaint and then properly serving you with the complaint.

That would be a violation of your 7th Amendment rights:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.


Since you claim you were never served, you'll need to examine the complaint to see who was named, and also the address where they claim service was perfected.
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Old 04-01-2018, 02:16 PM
 
1,914 posts, read 1,085,963 times
Reputation: 2042
Hi-

I'm in the business so I wanted to respond. There is a lot of misinformation on this thread.

Let's start with the loan itself. If you cosigned, the only significance to the car is that it served as the collateral. This is often called a semi-collateralized loan. The bank loaned you the money; not the car. So if the car gets repossessed, then sold at auction, if there is a balance remaining (known as a deficiency balance), that balance is still outstanding to the consumer. If there was a cosigner, there are 2 parties that owe 100% of the outstanding balance- the maker and the comaker.. This is known as joint and several liability.

Now onto the Judgment. The best way to determine if its for real is to simply ask the collection agency for the Judgment number and/or dockett number. Then go down to the court yourself and get a copy. Someone else mentioned proper service, also known as perfection of service. The debt collection industry is probably the most highly regulated industry on the planet right now. So improper service (aka 'sewer service') is highly unlikely. Normally one would have the option to file a motion asking the court to vacate the judgment where service wasn't properly perfected (rules vary by State). But in the case, if its been 2 years since Judgment was rendered, that type of motion will most likely fail.
BTW, most likely both the Maker and Comaker were sued. Meaning again, that both parties are 100% responsible for the money owed due to the principle of joint and several liability.

If there is a legit Judgment, I highly suggest that you work something out with the Collection Agency. They have already spent considerable time and money on this matter and its highly unlikely they are going to walk away now. They will probably consider pursuing you for Post Judgment remedies at some point. They vary by State, but if they already have the Judgment (a court order), securing these remedies are mostly administrative. It may be time consuming, but its a done deal that they will get them if they so choose to. Also, in many cases Post Judgment interest and court fees get awarded, which can pile up very quickly.

You want to get rid of that Judgment as quick as you can. It can effect employment, credit, and security clearance among other things.

Good luck. Let me know if you have any questions.
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