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LegalGems
LegalGems, Lawyer
Category: Consumer Protection Law
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Experience:  Research Attorney; Private Practice; Attorney Mentor; Mediator
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A debt collector put a levy on my bank account on 11/8/13 for

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A debt collector put a levy on my bank account on 11/8/13 for an old loan (2004) for $2,000 that I did not remember I had, since my ex wife used to be in charge of handling the bills. they put a hold on my account (only had about $1,300 in the bank) I have no access to this money and they tell me that now the amount of this loan is $4.000 for interest accumulated. they tell me this money is going to the sheriff dep. and I need to start making payments on the balance. can they do this even this loan is 9 years old? thanks

LegalGems :

Hi! LegalGems here. I'll do my best to assist you.I can only provide general information, so a follow up consult with a private lawyer is recommended. Was there a judgment rendered in this case for the judgment creditor?

Customer:

yes there was, my bank gave me a copy of the court paper.

LegalGems :

So it was a default judgment?

LegalGems :

i.e. You didn't show up at the hearing?

Customer:

I believe it was, no I did not show up at the hearing, I didn't even know I had a court day.

LegalGems :

That's what I assumed. It sounds like they did not properly serve you. You can file a Motion to Vacate Default Judgment based on failure to properly serve, and also based on the statute of limitations issue. You mention you are in California. What county?

Customer:

riverside

LegalGems :

Ok. You would want to go to the self-help facilitator there, unless you plan on hiring an attorney. Just a moment please, I'll get you a template for the motion. The facilitator will be able to help you fill it out specific to your situation. You also want to see what type (if any) of proof of service is on file.

LegalGems :

The above is for small claims.

LegalGems :

Here is the one for regular civil: http://www.courts.ca.gov/partners/documents/blankn.o.m.6months.pdf

LegalGems :

The second one- you would change it and discuss the facts relevant to your case,not the 473 issue as it states - this is just a template.

Customer:

is this going to help me stop this collection and get my money back?

LegalGems :

Yes, the only way to stop it is to vacate the existing judgment. Until that time, the judgment creditor has a legal claim to your money.

Customer:

ok thank so much for your help.

LegalGems :

You are welcome. Good luck on this - and just so you know, some creditors purposely mess up the service of process so they can get a default judgment; so that is likely what happened here. That is why the courts have a way to overturn such judgments. (i.e. vacate).

Customer:

thanks so much, great info. and advice.

LegalGems :

You are welcome. Glad to have helped!

LegalGems and 2 other Consumer Protection Law Specialists are ready to help you
Customer: replied 3 years ago.

hello again LegalGems, today I contacted the debt collector and, I let him know that I talked to a consumer attorney about my situation and I told him that I was advised to file a motion to vacate default judgment based on failure to properly serve me with court papers (date) and I asked him to please send me copy of the court paper and proof of when I was served and what address they used to served me because I never received any court date or papers. he got upset and told me he can only send me a copy of the court ruling, then said have a good day and hung up on me. rude person.

That is awesome. I'll take bets that they won't be pursuing this. Usually once they become aware that the consumer knows the law, they go after another victim. You would be surprised at how many people don't know their rights and will pay just to get a satisfaction of judgment.
Be sure and follow through with the motion to vacate - otherwise this can come back and haunt you.
Customer: replied 3 years ago.

on Monday the 18th of November I will be going to court to file the motion to vacate form, in the mean time is it wise to call back the debt collector and ask him to release the hold on my bank account (the little money I have to pay bills) and would they do it? or would they keep that money ($1,300) until we go to court? thanks so much. Victor M.

There would be no harm in asking- in fact they may be willing to stipulate to vacate the judgment, because if the court finds that they forged any proof of service documents, they can be sanctioned by the court.

You may want to google the company and check with Better Business Bureau- to see if they have a history of doing this. That will give you an idea of whether you are dealing with a normally ethical above board company.

I did some additional research and found the following form- you may save a trip to the courthouse if they will agree to a stipulation to vacate. Please see the following template: http://www.courts.ca.gov/partners/documents/stipulationtovacatejudgment.pdf

An interesting article if they did in fact forge the Proof of service: http://www.psinstitute.com/CrimLiabPrepFalsePOS.htm


Good luck on all this! It's so unfortunate when we have to spend time dealing with other people's mistakes/dishonesty!!

I hope you found the information I provided useful and that the judgment is promptly vacated. You may want to hire an attorney, as the court has discretion to award you attorney fees and costs incurred in vacating the judgment.

Future requests can be labeled "TO LEGAL GEMS" followed by your question.

It would be appreciated if you complete the admin's survey - it's like our report card!

Thanks, and take care!

PS- thanks kindly for the generous bonus!
I hope you found the information I provided useful. Better yet, let's hope this judgment is vacated!
Future requests can be labeled "TO LEGAL GEMS" followed by your question.

It would be appreciated if you complete the admin's survey - it's like our report card!

Thanks, and take care!

(PS - many thanks for the generous bonus-much appreciated!)

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