Every single day I meet with people in my law practice who come to me with a wage garnishment stemming from a judgment that, until now, they had no knowledge of. In order to garnish wages it is generally necessary to file a lawsuit against the person owing the money and obtain a judgment against them before any type of garnishment can occur.
The judgment is the document that gives the debt collector the power to garnish wages or levy bank accounts.
In over 90% of debt collection lawsuits filed by junk debt buyers like Midland Funding, Portfolio Recovery, CACH, and Cavalry SPV, the case ends in a default judgment. This means that the consumer (i.e., you) did not file a written response with the court.
The reason most of the people I meet with say they didn’t file an Answer is because they don’t have any recollection of ever being served with lawsuit by a process server. They didn’t know about the lawsuit, didn’t file an Answer, and a default judgment is entered.
If this has occurred there are options and even the possibility of getting the judgment set aside or vacated.
I believe people when they tell me that they don’t recall ever being served with the debt collection lawsuit. For most people, when a process server comes to the door and serves you with a lawsuit it is a pretty big deal.
Most people are stressed out of their minds by this and would clearly remember it if it actually happened.
How Did I End up With a Default Judgment?
So how does the debt buyer get a judgment if you weren’t served? The answer can be found in a document called the Certificate of Service (or Affidavit of Service).
After the process server drops off the summons and complaint (“serves you”) they are then required to file the Certificate of Service outlining how you were served, when you were served, who was served, and even provide a physical description of the person that was served.
If you have a default judgment it is important to review the Certificate of Service to determine if they did indeed serve you with complaint. I have had cases before where the process server alleges to have served the consumer on a specific date but we were able to prove that my client wasn’t even in the state of Arizona at the time. How did we prove it?
How Facebook Can Help You Win Your Case
Social media platforms like Facebook, Twitter, and even LinkedIn create a journal of sorts as we chronicle the events of our lives. I have found Facebook to be a handy tool when it comes to determining if my clients were even in the state on the day that they were alleged to be served.
I simply have my client compare the date they were alleged served to the activity on their Facebook page to determine if it was even possible for them to have been served on that particular day. Facebook can be a great resource to show a court that you weren’t in the area, didn’t live at the address, or that it simply wasn’t possible for you to have been served on that particular day.
If you can show that you were not served with the summons and complaint you can then file a Motion to Vacate the Default Judgment. And under Arizona law if service of the complaint and summons was bad the court does not have discretion – they must set aside the judgment and allow you to contest the allegations brought by the debt collector.
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John Skiba, Esq.
We offer a free consultation to discuss your debt problem and help you put together a game plan to eliminate your debt once and for all. Give us a call at (480) 420-4028