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Irwin Law
Irwin Law, Attorney
Category: Legal
Satisfied Customers: 4872
Experience:  Lawyer & Real Estate Broker, 30+ years, foreclosure, land contracts, inheritance, probate.
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Motion filed to set aside default judgement was granted and

Customer Question

Motion filed to set aside default judgement was granted and a new court date set. I recently found out that a company was attempting to collect a debt by means of judgement in small claims court. The summons was set to expire on June 4, 2010 I was never legally notified of any court summons so was not able to response to that which I did not know about.
On June 18, 2010 I was called by a friend who told me she was at the court and say that there was a summons pending but had expired on June 4th. I called the court to find out what the summons was in regards XXXXX XXXXX the court clerk told me that a company had filed suit in small claim to recover monies I owed them.
I told the court clerk that I was never notified of any summons nor did I have a copy of the complaint. She told me that a default judgement had not been entered yet and that I should respond to the summons right away if I wanted to avoid a default judgement.
I scramble together all the information I had over the weekend to let the judge know that I had not be properly served any summons (even the the process server had written that he had attempted service in person on two failed attempts and requested service in a second manner the judge had allowed service to be made through mail which in michigan requires that attempts through the mail be sent certified and registered nether was done the process service stuck it in the mail first class and I didn't recieve any notice.
He then proceeded to document that on the same day he mailed the summons first class he also tacked it to my door (which the court had permitted him to do) but he did not tack it to my door he LIED. I have been sued in court by ZOMBIE debt collectors Portfolio Recovery Associates. So I have been in front of this same court with the same judge before. I stated in my motion to dismiss the claim that I did not receive any court summons nor did I know about this and responded just as soon as I found out about it. I requested that the judge set a default judgement dismissing the claim per Michigan State law that no service or proper service was note made.
When I went to the court on the 6/22/2010 to turn in my response the court worker that I had spoke with took the paperwork into the judge that very morning to for default in the planitiff favor even though she was aware that I didn't know about the summons a was rushing to attempt a response.
The judge had not made or look at the summons to make a ruling to I requested that the papers that I had put together be given to the judge so that he could review my side of the story before making a ruling. The court reporter didn't take it to the judge or make him aware that any papers where there to contradict what the plantiff was stating. So default judgement in favor of the plantiff was set.
That same day I filed the papers to set aside default judgements on the above ground to cover me in case such a ruling had been made.
My question is now what should I do to assure that I win a judgement in my favor and get the previous judgement vacated.
I have stated in my first attempt to respond which the court has the the company suing me did not have any right to sue as I was not under contract with them to pay back said debt. I also stated that they didn't initially file any proof of the debt or any proof that they where legally assigned the debt They gave no contract because there was no contract and in fact I had two emails sent to me by the wholesaler I was dealing with the the Net Terms company CIT that usually approves credit for orders had denied me credit terms. The wholesale company I was dealing with was assuming all responsibility for the product they had sent out at there own risk. It was that wholesale company that is owed the money not the net terms company they use as they DENIED credit approval.
I also pointed out that the amount that the company was suing for was more that Michigan small claims allows and that attorneys are not allowed to represent third party persons in small claims. Also in Michigan collection companies are required to have a state license to collect debt in the state and that certain guidelines must be meet in order for a collection company to sue you in small claims court and requested proof of Michigan state licensing by and proof of employment to meet this to be shown.
Along with the fact of fraud and some other affirmative defenses.
The judge awarded the request for relief from default judgement and set a new court date.
My question is what else should I do to prove that I don't owe this debt to the company and that default judgement to pay should be set aside. What are the steps and what other laws can I use to help me win this case. Thanks my new court date is July 12, 2010 so I need to mount a good defense quickly
Submitted: 4 years ago.
Category: Legal
Expert:  Irwin Law replied 4 years ago.

If the default was set aside and a new court date set, (July 12) then that will be the trial of the case on the merits. Both sides will present their evidence and argue their case at that time. You cannot default the other side. You have to go to court and present all the evidence and explanation that you have as to why the money isn't owed to that creditor who sold the account to the debt collectors. All of the defenses you mentioned sound pretty good.

Customer: replied 4 years ago.
This is not a satisfactory answer to my question you are simply reiterating what I've already stated. My question was now that I have a court date to be heard what proper defenses should I use. I received in the mail today a notice sent to the court requesting that the motion to set aside default judgement be denied with blank dates and a blank place for the judge to sign. I'm confused by this as the judge has already set a new court date. The plantiff is stating that proper service was made and that I do not a good cause to set aside the judgement and that I have not given a meritorious defense. If you can not help me with this issue then please forward me onto an attorney that can. I need help with the questions not just a rephrase of what I asked.

And I have given cause as to why the default should be set aside by stating that I was not notified of service of this action until after the summons has expired. I have also stated that the plantiff didn't provide the court with proper proof of debt and that I do not owe that company as I wasn't contracted with them to repay them but the actual wholesaler. So aren't they required by law to show contracts and proof of debt. I have provided the court with email sent by the company denying me credit terms and they have replied with statement stated that I knew I had to pay them and I had paid a previous invoice which I didn't and it isn't a full copy of any invoice just a partial print out of 1 of 27 pages of an order with the majority of items on back order not a bill or statement for payment. Don't they have to show proof of payment i.e a credit card approval number or copy of a cashed check. One can not simply state oh she paid with out having documentation to should proof of payment or even how much was paid. I need to know what I need to do to if I need to look up and site case law to legal show that this company can not get judgement when they haven't provided proper proof of the debt.
And with this whole new issue of them trying to get the judge to sign a document denying my motion when he already grated my motion based on the fact that I was not given proper service nor did I know about being sued until after the order expired so the judge should have defaulted in my favor because proper service wasn't made according to MCL. So do I need to find good cause and meritorious defense case law to back me up and again if the judge cancels the new court date then what. If I get my court date what case law and proofs should I bring with me to cover myself since I am not an attorney and am going up against one I need to know what steps I should cover so I am doing this correctly.
Expert:  Irwin Law replied 4 years ago.
I have opened up the question up for other experts to try to help you. Based only on what the opposing attorney has filed, it appears to me that what the judge did was treat your appearance in court as merely a motion to vacate the judgment and he has set it for a hearing. If I am correct, then the judgment has not been set aside yet, and you will have to show grounds at the hearing why it should be.
Customer: replied 4 years ago.
Yes, I understand that. I guess I need to know in order to win this case what should I be preparing for. Since the plantiff is trying to site case law that I have not show good cause as to why I'm asking for a default or meritorious defense should I be looking for case law to back me up. What exactly are the steps I should be doing to make sure I have everything I need to win this case. I thought that they filed in small claims and in michigan attorneys are not allowed but if she filed it with the civil court than that defense is out. But keep in mind the orginal party (the manufacture) I purchased the product from uses this company for net terms or (credit) since I have two letters stating that the company did not grant me net terms then the manufacture sent out the product at their own risk and it was not then garaunteed for payment by the net term company. So it should not be the credit company sueing me for payment as there is no contract with them but the manufacturer. The attorney is trying to claim that the CIT group wich had a factoring arrangment with the wholesale company and that I had previously paid the CIT group in the past (yes that was the year before when they granted me net terms) Again this year they denied my application for credit. And they have not been able to produce a contract that states an agreement. She is also trying to tell the judge that I paid a past invoice dated 7/16/2008 and attached a copy of a print out which is only a packing label and it isn't even the full invoice. She attached nothing to show how I paid and she couldn't because I didn't. She states that there would be no contract between Plaintiff and Defendant. Defendant was to pay Leg Avenue through it's factoring agent CIT group, the plaintiff in this suit. Therfore Defendant has not set forth a meritorious defense. In PINTO v. BUCKEYE union insurance company 193 Mich. App 304 (1992) the Appeals court refused to set aside the default judfement. So what case law should I be looking up to show this meritorious defense. ??? And what can I do to make the judge understand that the wholesale company sent the product at there own risk and that they are the ones that payment is due to not the credit group. Also they haven't even shown any proof as to goods sent and recieved they have a print out but when I called UPS to get tracking information for proof of delivery they have not as the system has been purged. Again I am in great need of putting this together before the court date and also making sure that the judge doesn't change his mind on allowing me a new court date because the plantiff is saying I didn't have good cause and meritorious.
Expert:  Irwin Law replied 4 years ago.

Hello Customer: You don't have to prove your case at that hearing. You just have to show the judge that their claim is and has been disputed with the original creditor. You can't "win" the case at this hearing. All you can do is have the default set aside and an opportunity to present evidence in defense of the claim. You don't need case law here, the judge knows the law of vacating default judgments. Just show that you; a) never received the summons; and b) you have a lot of evidence with which to dispute that creditor's claim. Good luck.

 

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