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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 41221
Experience:  Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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In Oct 2011, I was served a summons by Portfolio Recovery

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In Oct 2011, I was served a summons by Portfolio Recovery for a capital one credit card.
At that time I was also being foreclosed on by Gmac and was unemployed, I did not
have any money for court expenses and was so burdened at that time with my personal
troubles I merely put the summons aside and forgot to address this situation. In November
of that year my significant other was rushed to the hosptial and in ICU for 17 days and then
remained hospitalized till Dec. 17, so serious issues were happening. Now this collector has levied my checking account. My question is: the judgement has been filed against me, is there anything I could do to get this judgement vacated now? I don't think I can file BK because I may have some equity in my home. Will my reason for not responding
be a sufficient reason? The last time I paid the credit card was around 6/09 and portfolio recovery is the one and only collector on this?
Anything you advise will be helpful to me.

Thank you,
Portia

Thank you for your question. Please permit me to assist you with your concerns.

Portia,

The answers I will provide may likely not be favorable but I want to provide you with as honest and unvarnished representation as I can. You specifically asked:

My question is: the judgement has been filed against me, is there anything I could do to get this judgement vacated now?
At this point, almost impossible. The usual reason for vacating judgment is if you had no notice of the hearing and therefore failed to appear. here, you had notice but you had other issues or concerns that took place which is why you did not appear. However those concerns are not really enough since the courts permit you to file a 'continuance' (a delay) especially if there is a medical emergency. And even after judgment there is about a 30 day window when an appeal can be filed to set the judgment aside for various reasons. Here, it has almost been 2 years so I really see no judge granting you the right to set aside the judgment.

I don't think I can file BK because I may have some equity in my home. Will my reason for not responding
be a sufficient reason?
I apologize but I do not see it as sufficient. There has to be a basis showed that even in an emergency situation, you filed to set aside at your earliest moment, which is not the case here. Now, you can try to file to set aside, but it would be unlikely to be granted as both emergency and notice are not valid grounds, and arguing against the debt itself at this point is likewise impossible since the judgment made the order final.

The last time I paid the credit card was around 6/09 and portfolio recovery is the one and only collector on this?
Once the judgment is put in place, the statutory limitation is no longer an issue--the judgment appears valid.

Good luck.

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