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John
John, Attorney
Category: Legal
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Experience:  Licensed and practicing attorney.
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My employee who works three days a week and is very honest,

Customer Question

My employee who works three days a week and is very honest, reliable and hardworking, has been issued a Judgment that appears to be completely unfair and without merit.
It was issued by a Petitioner identified as Unifund CCR Partners, apparently a debt collection agency, on a Judgment entered 7 years ago on 3/17/08 for $7,266.79. The total now due amounts to $12,293.68. She has never received any previous notice about this debt and could not get any information about the credit card to which this debt was charged. It appears to be a case of identity theft. The last 4 digits of her Social Security number are on the Garnishment application and they have used this to set a garnishment on her bank account. She can not use the bank account until this matter is settled. She has contacted Legal Services of MO and they are now looking in to the matter. This legal matter that paralyzes her use of her earnings and ability to pay her bills appears to be completely unfair and unjust. She has a record of prompt payment of bills and credit cards and this legality appears unusually cruel to someone who is a law-abiding citizen, hard working and who has the care of a disabled son.
She would appreciate any help you can give towards nullifying the judgment that appears to have no basis in fact. Thanks for your help--xxxxxx xxxx -***@******.***
Submitted: 1 year ago.
Category: Legal
Expert:  John replied 1 year ago.
Hi, thanks for submitting your question today. My name is John. I have over 13 years of legal and consulting experience in this area. I’m happy to assist you with your question today.
In these instances the client generally has three options:
1. Seek to vacate the judgment based on legal excuse, if there are grounds to do so.In order to vacate a default judgment, the defendant must make an application to the court that rendered the judgment. What is meant by legal excuse is that you had some extenuating circumstance that stopped you from appearing - sickness, death in family etc., and you must show that you have a legally viable defense to the action (i.e., you don't owe the debt). Even if you don't have a good reason for missing the court date, I'd apply anyway...the court will probably show leniency.
An application to vacate a default judgment is made by a procedure known as an “Order to Show Cause”. The order to show cause must contain the legal grounds upon which the defendant seeks to vacate the judgment, and an affidavit (sworn statement) from the defendant that provides the necessary facts to support the defendant’s application. If the order to show cause is prepared by an attorney, it will also contain the legal arguments in support of the request to vacate the judgment.
The order to show cause is presented to a judge who will direct the manner in which the papers are to be served on the plaintiff and the plaintiff’s attorney. Usually, this will be done by certified mail or overnight delivery. The judge will also determine the “return date” of the order to show cause, that is, the date by which the plaintiff must file its reply to the defendant’s request. Certain courts and judges require that the parties appear in court on the return date.
After reviewing the papers submitted, and possibly hearing testimony , the court will make a decision. If the court determines that the summons was not served properly, then the case will be dismissed. The plaintiff would then have to commence a new lawsuit. However, if the statute of limitations had expired during the time that the case was pending, the defendant could raise the statute of limitations as an affirmative defense and successfully defend a new lawsuit. Alternatively, if the court determines that service was proper, but that the defendant did not actually receive the summons, and has a meritorious defense, the defendant will be permitted to serve an answer and defend the action.
2. Ask the court to modify the execution to something more manageable. The debtor would have to show that the amount being deducted from their pay or taken from accounts was burdensome for the debtor or the debtor’s family. This procedure is not used very often.
3. File for bankruptcy. A Chapter 7 or Chapter 13 bankruptcy filing will stay enforcement of any judgments. Upon the filing of a bankruptcy petition, the garnishment must cease. (Income executions for support enforcement, however, will continue). Once the debtor receives a discharge in bankruptcy, the judgment may not be enforced against the debtor. In addition, if more than $600 was deducted from the debtor’s pay within the 90 days preceding the bankruptcy filing, this money may be recovered by the debtor under certain circumstances.
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