Every so often, we get calls from consumers who tell us about a debt they disputed and didn’t believe they owed.  Unfortunately, some consumers may be tempted to ignore “papers” they receive from lawyers or courts, which can result in a default judgment against them.  Whether or not we can assist them in getting the default judgment set aside depends on the specific facts involved.

A default judgment can be rendered when the person defending a lawsuit fails to show up when summoned to court.  Just believing you don’t owe the debt is not enough – you must show up in court, either personally or through an attorney.  If you don’t, you may waive your right to defend against the lawsuit.  If a default judgment is entered, the other side essentially wins.  That often means the get everything they asked for, even if those charges are not appropriate or authorized.  That could mean additional charges for interest and the attorney fees for their lawyers.

However, a default judgment does not necessarily mean you have no alternatives.  If the judgment was entered within the past year, you may be able to get relief from the judgment for reasons of mistake, inadvertence, surprise, excusable neglect, fraud, misrepresentation, or other reasons.  There are other possible ways to set aside the judgment if they are properly brought to the court’s attention within a reasonable time, including a void judgment, satisfaction or release, or that the judgment has been discharged.  These reasons must be set forth in a motion asking the court to set aside the judgment pursuant to Florida law.

In addition, a judgment could be void if the person against whom judgment was entered was unaware of the litigation.  This is not all that rare, thanks to what we call “sewer service“.  This occurs when the process server does not actually deliver the lawsuit papers to the person being sued, but instead throws them into the sewer or otherwise gets rid of them.  For a news story on how the New York Attorney General has sued 37 law firms and debt collectors for this abuse that affects over 100,000 faulty judgments, please click here.  One consumer discovered he had been sued in New York; the process server claimed to have served him at his house in New York City, even though he lived in Florida, not in New York.

If you were not properly notified of the lawsuit against you, your constitutional rights to due process may have been violated.  This may be another basis for setting aside a judgment.

If you would like a free consultation to determine whether we can help you in setting aside a judgment, please feel free to call, fax or email us.  We will be happy to respond promptly, even in the evenings and on weekends.

If you’ve been sued on a credit card debt, you may have received a document either with the lawsuit papers or soon after called a “Stipulation for Entry of Final Judgment Execution Withheld” or something similar.  We have seen such documents sent in by a debt collection law firm that does business under the names of Hayt, Hayt & Landau and Robert J. Orovitz, PA.  It may have been accompanied by a letter from one of the lawyers in that firm, such as Robert Orovitz, Dana Kalman, or Christian Walled.

Although it sounds like a settlement letter, and although the specific payment amount may be left blank, there are some serious consequences you should consider before agreeing to it.

First, the lawyers and their law firm (Hayt, Hayt & Landau and Robert J. Orovitz, PA) represent the credit card companies, ranging from original creditors such as Capital One (Cap One) to debt buyers such as Arrow Financial.  I have yet to see them represent a single consumer against any credit card company.

Second, although they suggest they will be flexible in the terms of payment, many people don’t realize the important protections they are losing.  For example, if you agree to it, you are not only agreeing that you owe the alleged debt, but you are also agreeing that you have no valid defenses.  For example, even if the credit card debt is barred by the Statute of Limitations, you are waiving that defense.  If the credit card debt includes charges you did not authorize, you are waiving that defense.  If the credit card debt includes inappropriate charges, interest or attorney fees, you are waiving your right to dispute those charges.

That document instead is a formal judgment against you.  They are simply agreeing that they will not garnish your wages or execute against your bank account or other assets as long as you make your payments as scheduled.  If you miss even one payment, or if your payment amount is slightly short because you had other unexpected expenses that month, they can proceed with garnishment and execution.  And, you have now given up important rights under Florida laws that related to what assets of yours they can now seize.

Know your rights before you sign them away!  Call us for a free consultation, or contact us by email, fax or through this blog.

In some cases, the first time you know that you are being sued on an alleged credit card debt is when you receive a Summons and Complaint.  In small claims cases, the Summons may also be accompanied by a Notice to Appear for a Pretrial Conference.  This post explains what these terms mean for the people being sued for credit card debts.

The “Complaint” is the formal document that begins a lawsuit.  That is where the Plaintiff (the person or company that is suing) sets out their claim or claims against the Defendant.  The “Summons” is the formal legal document notifying you that you are being sued, and gives you instructions on how and when you must respond.

In Florida, you must file a formal response called an “Answer” or other responsive document unless you are being sued in small claims court.  In small claims court (the division of county court where the dispute is for $5000 or less), you do not need to file an Answer, but it is still often a good idea to do so.  That way, if you dispute the credit card debt, or if you are unsure whether you owe the amount being sued on, you can formally document your dispute.

If you receive a Summons or a Summons and Notice to Appear for Pretrial Conference, it is absolutely CRITICAL that you respond appropriately.  If you don’t show up, or if you don’t respond appropriately, you may lose the entire lawsuit before you can present your evidence.  There are also other important safeguards you may lose if you don’t respond by the deadline.  You should definitely speak to a credit card lawyer before those deadlines expire, so please call, email or fax us for a free consultation.  There is nothing so disappointing as a person who has a valid defense not being able to defend their case because the deadlines expired!

Welcome to my new blog.  I am in the process of setting up this new blog in order to help Florida consumers, particularly those in Central Florida (Seminole County, Volusia County, Orange County, Brevard County, Lake County).  This includes the cities of Altamonte Springs, Altoona, Apopka, Cassadaga, Casselberry, Chuluota, Daytona Beach, DeBary, DeLand, Deltona, Eustis, Fern Park, Geneva, Heathrow, Lake Helen, Lake Mary, Longwood, Maitland, Mount Dora, Mt. Plymouth, Orange City, Orlando, Osteen, Oviedo, Pine Hills, Port Orange, Sanford, South Daytona, Tavares, Umatilla, Winter Park, Winter Springs, and Winter Park, among others.

My goal is to share information with Florida consumers about their legal rights to help them pursue justice in the areas of auto fraud (rebuilt wrecks, odometer rollbacks, deceptive sales and financing, etc.), credit card (including defense of credit card collection cases), debt collection (Fair Debt Collection Practices Act/FDCPA, abusive debt collectors, collection of old or non-existent debts), lemon laws and other similar areas.

Although I have over ten years of experience as a consumer justice attorney, this blog is brand new, becoming operational for the first time on August 21, 2009.  We appreciate your patience as we begin providing you information by posting in the next several days.