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Legalease
Legalease, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 16289
Experience:  13 years experience in Consumer Protection law, in particular construction law and auto repo law
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Motion to set aside default (civil)City of St. Clair

Customer Question

Motion to set aside default (civil)
City of St. Clair ambulance wonts $819.49 and has Michigan department of treasury holding my state tax return of $276.00
What really happen, I was moved from one rehabilitation center to another by ambulance. I have Medicare insurance and City of St. Clair ambulance did not have me sine the correct paper work in the ambulance so they could bill Medicare. Then they summited the bill to Medicare after the Medicare dead line date to turn it in. If they would have called me within the deadline date I would have signed the Medicare paper work. So they are at fault for not having me sine the correct paper work so they could bill Medicare. I pay for Medicare insurance out of my social security. I was crippled by Dr. Nikpour failed surgery he performed on my back, at that time I was unable to move because of his surgery and now I can’t walk without a walker or cane. I won’t the court to set aside this default do to improper procedure by the two men driving the ambulance. I can’t be responsible for their mistake. I am short on paying my bills from SS, it’s insufficient. I am a highly skilled 50 year mechanical designer that cannot get a job again because of being crippled at my age. I can only get about now with a cane or a walker. Because of Dr. Nikpour, I am out of thousands of dollars and can’t sue for medical mal practice do to Michigan congress outlawing malpractice law suit. I think democrats suffer from mental incompetence for passing that law. If we continue letting them run this country they will turn it into Detroit just like they did to Detroit.
I was transferred by other ambulance back and forth to the hospital many times and I signed papers for billing Medicare and they had no problem billing Medicare, and they even had to wait over an hour to take me back. Why didn’t the St. Clair ambulance do the job right? I think the bill is too high for a 3 mile ride.
I have no money and I need that tax return for my needs. I have been calling many law firms and no one will help me. I don’t know what to do. My tax return is SS money and I understand SS money can’t be garnished.
I don’t know how to file objection to the garnishment? They made the mistake, and how do I get my $76 back, can I sue them for it?
Dr. XXXXXX
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Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  Legalease replied 1 year ago.
Hello there -
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I apologize for the delay in responding to you but this is the first time I have seen this question. It may have gone unanswered for so long due to the long holiday weekend that just passed and the limited number of experts on the site since last Friday May 22.
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A Motion to Set Aside a Default is almost always successful if you can show the court a good reason why you defaulted on the original hearing date (why you were not there) Or you defaulted on the original answer filing (if you were required to prepare and file a written response to their lawsuit with the court and you did not do so, then the ambulance company was within their rights to ask for a default. Your grounds for seeking that the court set aside the Default CANNOT be the same grounds regarding why you believe that the ambulance company is not correct in this case and that you should not have to pay the ambulance company for these services. Your side of the case would come out LATER on -- after the court removed the default and set a hearing date to hear you actual case and defense to their claim. So, if your brought the Motion to Default in the court and you did not write in the motion your reasons for missing the court deadlines (such as you had a doctors appointment you could not miss that day OR you were sick that day OR you never received the notice from the plaintiff ambulance company that there was an upcoming court date).
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If you wrote up the Motion to Remove Default incorrectly, then you can still file what you will call a Motion for Reconsideration to Remove Default and in that written motion, you should state the reasons why you did not respond to the first requests from the court or the first hearing date (and nothing about the defense in your case -- that comes later and is not the issue in a Motion to Remove Default consideration by the court). At the end of the writing you should state:
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"In the interests of fairness and justice and the fact that not too much time has passed in this case, Defendant hereby requests that the Court remove the default judgment and reinstate this case on the COurt's calendar for a regular hearing date, giving the Defendant the chance to properly defend against the Plaintiff's suit for payment of a bill that was and is supposed to be paid by Medicare, but due to the Plaintiffs negligence in submitting an invoice to Medicare beyond Medicare's payment deadline for the matter, the invoice went unpaid by Medicare. It is NOT in the interests of fairness and justice that the Plaintiff can act in a blatantly negligent manner by failing to submit the ambulance invoice in a timely manner to Medicare for payment and when Medicare refuses payment due to the lateness of the request by Plaintiff, then Plaintiff can nonchalantly shrug and turn around and charge the patient for those denied charges. The Plaintiff ambulance company should be required to pay for its own negligent mistakes and not be permitted to pass the buck off onto the original patient when the extent of their negligent mistakes is discovered by the Plaintiff ambulance company."
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If you word the Motion for Reconsideration of Removal of Default Judgment in the proper manner telling the court why you defaulted and using the fairness and justice argument, many courts will reopen the case and at least give you a hearing on the matter so that you can show that the ambulance company was the negligent party in this case and you were not negligent in any way.
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Regarding the garnishment itself -- Before 2011 the US federal Social Security law stated that the social security benefits of any recipient CANNOT be garnished to pay the bills of creditors. The law had no teeth whatsoever because if the defendant defaulted and the court was not made aware by the defendant that their income source and bank account direct deposits were the result of social security payments, then the court would issue the garnishment order and send it to your bank where the bank would permit the garnishment order to be used against your account and your bank account could be wiped out. The social security recipient would then have to run back to the court and seek a hearing on the garnishment and show the court that the deposits into the account were almost exclusively from their monthly social security benefits and only THEN would the court release the bank account garnishment after several months of your account being frozen before the court hearing until the garnishment was removed.
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Then, in 2011, President Obama, a Democrat, pushed a measure through Congress which severely limited the tools of these creditors for garnishing social security payments made into bank accounts of the recipient of the social security benefit. President Obama's law requires the BANKS to refuse to honor any court garnishment it receives where the bank account that a creditor seeks to garnish has a direct deposit from social security each month for the account holder. Whether the account holder/social security recipient defaulted on the court proceedings or a hearing or NOT, the BANK is required under federal law to send the creditor packing and if the BANK fails to do so, the bank must repay every penny taken from the account to the social security recipient. In your situation, the ambulance company is now pursuing your tax return because they already know that they could not ask for a garnishment on your bank account because even if the court granted it by accident or mistake, the bank would not honor it anyway. Regarding your assertion that the tax return is part of your social security payments -- while I do not disagree with you if you pay taxes on your social security benefits, neither the original law by George Bush or the vast improvements made to it by President Obama's people actually extends so far as to cover social security "money" in any manner that it appears or exists. Once the initial social security money is deposited and then withdrawn to pay for other things, those original social security payments are not covered any longer under the anti-garnishment laws. Because this is the case in your situation, you must fall back on the argument that the court should remove the default in the interests of fairness and justice because (a) you missed the court deadline for either a hearing or paperwork filing due to circumstances beyond your control (if you were feeling poorly during that time period then you should see if you can get your doctor to confirm that) or you can claim that you never received the court summons and paperwork, and (b) the plaintiff ambulance company should pay for its own negligent mistake of failing to submit the bill to Medicare in time to be paid and the Plaintiff should not be permitted to profit from its own negligence by charging you with paying these invoices.
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I hope that the explanation above and clarification regarding the Motion to Remove Default is helpful to you here and that the suggestion I made to file the Motion for Reconsideration and how to word that Motion will work for you in these matters.
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Please let me know if you have any further questions. If not, can you please press a positive rating under this ANSWER box so I will be paid for my time assisting you. I am also on a limited income due to illness and injury and I am not paid by this website for assisting you unless you press the third, fourth or fifth smile face or star in the ratings box below before you leave the website. Pressing a positive rating will NOT cost you any more money -- it simply acts as the trigger to Just Answer to pay me for my time assisting you from the agreed upon question amount.
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THANK YOU VERY MUCH
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MARY
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