Hi, and Welcome to JustAnswer, My name isXXXXX am a licensed, practicing Attorney and my goal is to give you Excellent Service and correct Answers and information,
I am sorry to hear of your predicament and that your fiancé placed you in it.
1. The collection agency had no right, or authority to name you as a defendant. Whether the account belonged to the collection company, or they bought it from a lender, they still had an obligation to do their "homework" to be sure that they were suing the correct party and had they done their "Due Diligence", they would not have named you. The collection company is liable to you for any damages you incur as a result of their negligence. You should claim all your attorneys' fees, costs, and exenses and all other fees resulting from this lawsuit. Had it affected your credit, you would have included that in your statement of damages.
2. Wells Fargo may have known that you had no proprietary interest in the company, but that is the main reason that they did not have an obligation to inform you. Unfortunately, as much as I would like to see Wells Fargo named as a Defendant in a lawsuit, your lawsuit would have little chance of success because they would have had to owe you a duty to inform you, but they did not owe you a duty. The banks expect that anybody who is going to sign documents will come with their attorney. As a matter of fact, had Wells Fargo interpreted the documents and advised you on anything, they would have faced liability based on a conflict of interest and they would have appeared that they were practicing law without a license.
Neither can they give you a written statement because there is no business relationship between you and Wells Fargo and the have no obligation to you i.e., they do not have a duty to you. This element must be present in any lawsuit in order to have even a 25% chance of success. Extending the "duty" argument one step to the collection agency, you can see that they owed you a duty. They were preparing to file a lawsuit, therefore, they owed every defendant the duty to make certain that the person they were suing was the correct defendant. Those are the people who have a liability to you and against whom you should be going,
Please be kind enough to rate "Excellent Service" so that I receive credit
for assisting you,
Bonus and Positive Feedback on survey is very much appreciated,
Thank you for allowing me the opportunity to be of assistance,
Hi, Thank youfor the "Excellent Service" rating, I appreciate it greatly, and Thank you for your follow up question and the opportunity to explain further,
Yes, you can sue them, but I believe it is better if you first file a Motion to Set Aside or Vacate Judgment" and in your Motion you wouldstate your reasons as being they sued the wrong party, you did not owe anydebt to them or Wells Fargo, the bank from whom they bought this debt, and any other defensesyou have. Be sure to also state all damages you incurred as well as causing you "extreme anxiety", "emotion and mental distress", etc. These damages are not normally given in this type of action, but include them anyway because ascertaining the real Defendant would have been very easy for them and it is clear that they did not conduct any "due diligence", and therefore, should constitute "Gross Negligence".
I wish you the best of Luck,
Hi, again, Sorry for the delay, but I was in Court for a 11:00 AM hearing and I returned later than I had expected.
1. In Answer to your first question in which Court to file your Motion - You would file your Motion to Vacate in the Court which entered the Default Judgment against you. They are both civil actions (as opposed to criminal matters);
2. Although both cases involve the same parties, you and the collection company, they are different cases and have different case numbers must be addressed separately;
3. I cannot say why your Motion was denied because I do not know what allegations your Motion included and do not know how the collection company Answered. A Motion must contain certain allegations which must be in consecutively numbered paragraphs:
1. Plaintiff is __________ ,
2. Defendant is ___________ residing at ______________;
3. To the best of the Defendant's knowledge, information, and belief, Plaintiff bought certain accounts from Wells Fargo __________
4. Defendant did not and does not owe Wells Fargo any debt;
5. Plaintiff instituted actions against the owners of these accounts and who owed money to Wells Fargo
6. Plaintiff erroneously filed an action against Defendant
And so on. You would continue along these lines for both Motions and allege in your Motion why you do notowe the money. It is basically a story, but each paragraph can contain only one sentence, and in the end, you ask the Judge to Vacate and Set Aside the Judgment,
Hi, If your Motion to vacate was denied, you cannot file the same Motion again. Your recourse would be file an Appeal of the denial of the Motion.
I do not understand what you would be requesting the Court to Modify.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).