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Roger
Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 26866
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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Ive received a Final Summary judgment for a prior debt sold

Customer Question

I've received a Final Summary judgment for a prior debt sold to a 3rd party collection company. I have the original judgment signed Nov 10th and a "Nunc Pro Tunc" signed Nov 23rd. I was not informed of the trial in order to appear on neither date. May I make a motion for re-trial or dismiss?
Submitted: 3 years ago.
Category: Bankruptcy Law
Expert:  Roger replied 3 years ago.

You can't file a motion to dismiss at this point, since a judgment has been entered.

 

However, you can file a motion to reconsider with the court or a motion to set aside the judgment if you can prove that it was obtained by fraud, mistake, new evidence that was not available at the time the judgment was entered, etc.

 

If there is no such ground to set aside the order, you have no grounds to appeal.

Customer: replied 3 years ago.

Would the fact that I was not informed of the hearing by the plaintiff be cause for either of the motions to reconsider or set aside? According to the clerk at the court, when the judge set the hearing date, it is up the the plaintiff to inform the defendent (me) of the court date and time. I was not informed of this.

 

Thank you,

Tim

Expert:  Roger replied 3 years ago.
If you didn't get notice of the hearing, it could be grounds to set aside the summary judgment IF you filed a response for the motion for summary judgment they was filed.

If you didn't respond, you would have not been allowed to speak at the hearing anyway.
Customer: replied 3 years ago.

okay...I did show up to trial for the motion for Motion for Summary Judgment. However, the judge found the motion had an error with a date in the motion and said the hearing had to be reset. I received no notice of the subsequent hearing and only received the signed summary judgment from the court. I called the clerk at the court and she said it was the Plaintiffs duty to notify me and that I may have the right to re-set the hearing. Is this true? If so, what would be my next step?

 

Thank you,

Tim

Expert:  Roger replied 3 years ago.

Yes, the moving party or its attorney is required to notice you of the hearing. If you weren't noticed, you can try to set aside the order on this ground. However, it is possible for the court to claim that you don't have a right to contest the content of the motion if you didn't file a written response to the motion.

 

If this is the case, the judge may rescind the summary judgment and require the other party to re-notice the motion. However, this doesn't change the fact that you didn't respond on time, so it is likely that the court will simply re-enter the order granting summary judgment.

 

Thus, you can go through all of this, but it likely won't change the outcome/result.

Customer: replied 3 years ago.

Last reply...and thank you for your responses.

 

So, am I safe to say that the best I can do is delay action of the summary judgment (by filing for a retrial). I would like to do this in order to possibly settle this debt and not be force to file a Chapter 7 immediately (which I'd have to do if the summary judgment is entered and acted upon).

 

Tim

Expert:  Roger replied 3 years ago.
Yes, you can file a motion for a new trial. If you don't prevail, you can then file a motion to set aside the judgment. This should buy you at least a few months - probably more.
Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 26866
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
Roger and 3 other Bankruptcy Law Specialists are ready to help you
Customer: replied 3 years ago.

Thank you, Kirk

You have been very helpful

 

Tim

Expert:  Roger replied 3 years ago.
Sure. Glad to help and I hope things go well for you!

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