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