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Friday, August 01, 2008
Out of state judgment

Out of state judgement



QUESTION:


I was on the verge of Bankruptcy 5 years ago, but have worked out of it. At the end of February, early March I received a certified letter and what appeared to be bogus court papers for a very old debt. Looking back those court papers buried in the packet may not have been bogus, but they was no court date or location to appear.





I responded I did not think that debt was mine/ and/or valid by registered mail to the collections attorney. Now, about 2 weeks ago I received, via regular mail, notice of a default judgement filed against me in AZ for over double the original debt amount.






Over the weekend, I received a letter from the attn stating the will try to garnish my wages. I have called many attorneys, but it seems if I don't want to file Bankruptcy, they don't want to represent me. One mentioned, I should contact an attorney in AZ where the judgment was filed and PA, where I live now, doesn't garnish wages.






The default Judgement was 30 days ago, now and I do not have an apt with a lawyer until next week, and it is in PA. I have searched the web and lawyers who have site that sound like what I need, reject me when I do not want debt consolidation or bankruptcy and have offered no referrals. I don't want to snooze and lose. The statute of limitations is expired by a couple years both in PA (where I live now) and in AZ (where I used to live 5 years ago and the judgement is filed). I have been trying to improve my credit the past 5 years. I can live with a bad mark on my credit report, but not an attempt to take my pay/ and stuff.




ANSWER:

Check the Arizona case to see when it was filed. Let me know what you find out. If it was out of stat in AZ when they filed it then you may have a way to go.




---------- FOLLOW-UP ----------

QUESTION:
It was past the Statute of Limitations. I see a date on the summons I recieved in March 08, dated 9-24-07. Statute is 6 years in AZ

ANSWER:
How can you prove that it was outside of statute of limitations for Arizona when it was filed.



If you can prove that the statute of limitations had expired by some means then you might very well have a case against them in federal court for misrepresenting the legal status of the debt. If you can't prove that somehow then you are probably not going to be able to do anything but live with the judgment.

If you allege something you must be able to prove your allegations or you don't have a winnable cause of action nor a defense.

I have a good friend who went to court today and I went with him partly for moral support and partly out of curiosity to see how well he would fare with his arguments.

Gene is a pretty good speaker. He is also a pretty fair student of the law and not because I have taught him. Yes, we have conferred on various topics from time to time but only on a chatting basis. I told him that I thought that he would not be likely to win on the SOL argument if he didn't have proof positive that what he was saying was true.

Judge Croy, whom I know as a result of having been in his court as an observer several times, is a very fair judge. He will take the time and trouble to treat a pro se reasonably well and will explain the law and even give tips and hints from time to time to help the pro se. Judge Croy ruled exactly the way I said he would. He denied Gene's motion to dismiss because Gene didn't have proof of his allegation that the SOL had ran it's course. He suggested that if he couldn't come up with proof any other way that he use his discovery tools to make the plaintiff come up with the facts.

The plaintiff's lawyer argued that Gene had not answered the complaint because Gene had also filed a graduated denial at my suggestion. That wasn't an answer according to the Plaintiff's lawyer but Judge Croy ruled that it was a valid answer. Now it is up to them to object to that and prove each allegation to be wrong. They are now out of time to have filed a response so we will see what happens from here on that. The plaintiff's lawyer was most unhappy over having lost that issue.

Gene also argued lack of jurisdiction based on improper service of summons against my best advice. It seems that Gene has a close friend who is a P.I. and a process server himself and was visiting Gene at the time. However Gene was not home at the time and the friend was waiting for him to return. It was the process server that got served.
(LOL)

But just as I predicted, Judge Croy wouldn't listen to that because Gene didn't bring proof with him.

The point here is that if you are going to win on a SOL argument in any court you are must have proof of what you say.

So can you prove that it was out of stat when filed in Arizona. If so then you can probably win in federal court and get rid of the whole problem. If you can't prove it then you will probably have to live with it.

---------- FOLLOW-UP ----------

QUESTION:
I can live with a bad mark on my credit, but not with them garnishing my wages or taking my property. Should I be worried? I was told they cannot garnish my wages in PA but I am thinking about moving out of state. Also, I have an appointment with an attorney in PA next week about this matter. On the phone a lawyer said I'd have to get one from AZ. Is there any reason to see a PA attorney?

Answer:
They will garnish your wages and maybe take property but that depends on the laws of whatever state you happen to live in when they catch up with you.



You would be well advised to stay right there in Arizona because when they catch up to you in another state the judgment will already have been granted in Arizona and they can get it domesticated into whatever state you move to and it will be much more difficult to fight that way.

The case was filed in Arizona so a PA lawyer won't do you any good. You really don't want an AZ attorney either. One isn't any better than the other.

Bill Bauer
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