If you have had judgment filed against you, then it is possible that you can get that judgment voided if you follow the method outlined in this post.
If someone has filed judgment against you, then there is a chance that the outcome wasn’t fair to you. This opens up the possibility of appealing the judgment; or in other words, you can move to get your judgment vacated. Not all judgments against you were legally obtained, sometimes judges with little experience in consumer law gave judgments in these cases and you are left with the judgment against you. Essentially, the collections agencies are playing at the inefficiencies in the legal system in order to affect your credit. If you refuse to answer the court summons or appear in court, then the judgment against you can succeed. If this happens, all hope is not lost.
If you want to vacate your judgment, then you need to find your individual state’s rules of civil procedure. These rules will help you succeed in staying within the legal bounds of your motion to vacate the judgment. The two things you must prepare are:
- Motion and Declaration to Vacate Judgment
- Order to Show Cause
- Question judgment
- Dismiss judgment
- Statue of limitations
- Vacate judgment
You can dispute a debt if you can show it has flaws. These flaws can include a number of things:
- Improperly served
- Improper service of lawsuits can allow you to get the case thrown out of court. Get in touch with your courthouse to determine the conditions of your service.
- No 30 days notice
- If you have received a suit from the collections agency without a thirty days’ notice then you can dispute the debt. This will allow it to be thrown out before you even have to deal with it.
A Motion and Declaration to Vacate Judgment is shown here:
IN THE SUPERIOR COURT OF THE STATE OF [YOUR STATE]
IN AND FOR THE COUNTY OF [YOUR COUNTY]
[The Original Plaintiff] Plaintiff,
No. [COURT REFERENCE NUMBER]
MOTION AND DECLARATION TO VACATE JUDGMENT
NOW COMES the Plaintiff, Pro Se and prays this Honorable Court to Deny the Defendant’s Motion to Dismiss and Motion for Sanction for the following reasons:
1. Relief requested. The defendant(s) move(s) the court for an order vacating the judgment entered in this action and staying enforcement of the writ of restitution until the motion can be heard.
2. Statement of facts and issues. This motion is based on the following grounds: (Enter your reasons: you weren’t properly served, the judgment was entered even though you filed the right paperwork)
Defendant(s) Name (Print)
I, [my name], declare as follows:
1. I am the defendant in this unlawful detainer action.
2. I request that the judgment entered in this action be vacated for the following reasons:
Give your reasons: A) the collection agency never responded to my request for validation, therefore never giving any proof that the debt was mine under the FDCPA. B) The amount of the debt exceeded the state’s usury interest limits
I certify under penalty of perjury under the laws of the state of YOUR STATE that the foregoing statement is true.
Signed in [CITY], [STATE] on [DATE].
Print or Type Name
You need to explain why you are bringing the motion and give good reasons why you were unable to respond to the summons, or that you did respond and the judgment was given anyway. Also be sure to inform the court what your defense against the charges would be had you actually been present in court.
You will need to follow these next steps in order to complete this process:
- File paperwork
- Notify the Original Plaintiff
Settling out of Court
If a settlement is offered, ensure that the settlement contains:
- They file all paperwork to dismiss lawsuit
- Notify all collection agencies and credit bureaus of the mistake
- Send you copies of paperwork received from the court concerning your vacation of judgment
If they do not show up, you win by default. If they do show up and are unable to disprove your claims (because of lack of documentation or legality) then you will be in the clear. You should remember to have all documentation to support your case with you
If you win
You will obtain a court document noting that the case was dismissed. Send this to any collection agency or credit bureau so they can remove the judgment from your credit report. Doing it yourself will ensure it happens.
Unlike other types of credit disputes because a 623 credit dispute involves an investigation; this thereby differentiates itself from a verification/validation. This investigation relates to the accuracy of the creditor’s records regarding your account.
The 623 dispute has evolved the nature of credit disputes. People have been able to dispute negative accounts with original creditors for a long time; however, now original creditors are required to verify your negative accounts rather than simply investigate.
Since July 2010, the FTC has changed the powers of consumers in handling these disputes by forcing original creditors to abide by the Fair and Accurate Credit Transactions Act.
First, you must send a letter of dispute to the Credit Bureau. After filing a dispute with the Credit Bureau, you must dispute with the Original Creditor (OC). If the Original Creditor does not respond to you within thirty days, then they have a $1000 fine against them and you may threaten to sue. If your first letter to the Credit Bureau comes back as “verified”, then you must ask the OC to begin an investigation on your account.
If the Original Creditor does not respond, remember that they have a $1000 fine against them and you may sue. Send this letter of intent to sue them and then mention that you are willing to settle for a deletion on your account.
Most creditors only keep records for a year to year and a half; after that, they delete your records from their systems. If your creditor falls into this category, then it is possible that they will not be able to prove the listings on your account. If your account alleges that you were 30 days late on a payment but they have no record of this, then they cannot prove the allegation. If they continue to report negative information on your credit report without any verified records, then they are in violation of the law.
In order for this method to work, you will have to dispute with the credit bureau before you dispute with the original creditor.
The information provided by an original creditor can be disputed much like the disputes with a credit bureau. The OC (original creditor) has to:
- Go over all information you’ve provided
- Give a response within thirty days
- Investigate your dispute
- If they have incorrect data, they must cause the credit bureau to correct it
Your creditor may determine that your dispute is frivolous. If so, they will have to let you know within five days.
If the OC comes back to you saying that the account is verified, then you need to send another letter asking for proof of the verification. If their proof is inaccurate, work as hard as you can to find proof that their proof is inaccurate.
In short, you must follow these steps in the method:
- Dispute first with a credit bureau
- Wait for resolution or continuation
- If they take more than thirty days, send a letter to the company’s legal staff telling them you will sue if they do not remove the listing
- If they verify the information, call the company and ask for documentation.
- If they have no documentation, then send a letter to their legal staff informing them that you will file suit because they have not provided adequate documentation for their negative listings on your credit.
If you go through all of these steps then there is a very high likelihood that you will succeed. Because of the large amount of recent mergers and acquisitions in the financial world, record keepers and DBA’s are having a heyday. The costs of data migration are immense and it is likely that they will not have the resources to pinpoint all of the data relevant to your account.
Validating your debt is a good strategy for trying to get rid of collections listings on your credit report.
Follow these steps to validate your debt. Validating the debt has no regard for who the collector is (lawyer, collections agency, etc.); all you need to do is follow these steps:
- Dispute listings and collection with credit bureaus
- Find the statute of limitations on your debt. If collections agencies are trying to collect on debts that have exceeded the statute of limitations then you have no legal liability to it.
- You can sue the collections agency if they still fail to remove the listing on your account after you indicate the statute of limitations
- If your debt is within the statute of limitations, then you must send a letter of validation to the collections agency. You may have to use subtle means in order to ascertain the physical address of the collections agency because they will seek to evade any way for you to send them post.
- You can wait the thirty days for the collections agency to receive a response. In order to have proof that the collections agency, they must have one of the things listed below:
- Collections agency has been the assigned the debt
- Statements from the original creditor
- Signed agreement or card application
- If they do not send these proofs, then send a letter to the collections agency that they have not complied with the FDCPA. Following this, you should inform them that you will file suit because of the lack of compliance with the FDCPA.
- Wait two thirds of a month for them to remove the listing.
- If they have proof that you owe for the debt, you can try and determine if the collections agency is legally allowed to collect on debt in your state. You can try some smoke and mirrors and claim that they are in violation (whether they are or whether they are not). If you try this method, include all of your state’s regulations, fines, and related information in your letter.
It is imperative that you do everything you can to remove the collections item from your record completely. For a collections agency, it makes no difference to them if you have it removed or not; that means that you should do everything you can to get it removed!
Contact the original creditor after you have paid the collections and ask them to update your account
Before you get in contact with the original creditor, you need to pay the collections agency. If you have had not contact with the collections agency then stop what you’re doing and pay the collections. After that, then you can legally contact the original creditor to update your credit report to reflect that you have taken care of the collections.
Try and get the collections agency to get rid of the listing with the original creditor
When you pay the collections agency, the original creditor receives compensation as well. The collections agency should then be able/willing to work with the original creditor to take care of the listing on your account. Do everything you can to persuade the collections agent to do that. You may need to try a few times to get this outcome to succeed
Some listings can be payments for services, not credit cards
Collections for doctor’s bills and similar types of charges will appear on your report. This happens even though the original bill is never on your report.
What if you still can’t get the listing removed using this method?
Sometimes creditors have a longer ability to wait out the process of trying to remove the listing from your report. This can be frustrating if you are on a schedule and don’t want to deal with the constant back and forth of dealing with the collections agency or creditor. Don’t forget that you will always be able to get things removed if you are patient.
Try getting them to list your account as just “Paid”
Do not be confused and think that a listing as “paid” is good. It is not. But it is better than a more elaborate listing like: “Paid Repossession”. Ask that all other notations besides “paid” are deleted from the account.
Try for a “Settled” listing
“Settled” is another negative listing; however, it is better than “paid repossessed”. You should not settle for a “settled” listing (pardon the redundancy) unless every other negative listing is removed as well. A “Settled” listing can still cause credit denial and you will still need to delete the notation with your credit bureau.
Let the listing display “Paid Collection” or other “Paid etc.”
This is the final option and listing the account as “paid etc.” is only a little bit better than “unpaid”. If you settle the account this way, then the creditor may delete it later.
For anyone that has seen a collections listing on your credit, the feeling is not good. The thought of a collections agency coming after you for an old debt is (at best) worrying and (at worst) giving you the feeling that your credit may be beyond repair. Do not lose hope! There are a few ways that you can fight the collection agencies and restore your credit to its former glory
Collection companies are often the least organized and may not even be legally authorized to come after you for your debt. This allows you a great opportunity. There are five techniques that I would recommend to you in order to get rid of collections items on your credit report. In this post, we will go over two and leave the next three for another post.
Pay for Deletion
If your debt is small enough, then you can get the collections folks off of your back by agreeing to pay the debt. In order to pay for a deletion from the collections agency, you have to:
- Write a letter to the collections agency detailing what you’re willing to pay to remove the debt. If the debt is over $500, then I would recommend that you stick to paying a fraction (like ¼) of the total debt. This still will allow the collections agency to make a profit on your debt. Remember to include these items in your letter:
- Ensure that they know that you have not received any validation from them that they are legally entitled to collect on your debt
- Make sure they know that you would prefer to settle this debt monetarily rather than sue them
- Let them know that you are aware that they will make a profit on the deal by taking your offer
- Include a settlement offer
- Await the receipt of written acceptance of your offer by the collections group
- Once your agreement is signed, send the collection agency a cashier’s check for the amount agreed upon.
If your debt amount exceeds $1000, then you will need to negotiate with the collections agency. You will need to make sure that you are dealing with the collections agency and not the original creditor. It is important that you know the possibilities going into settling the debt. You could (though generally unlikely) be sued by the collections agency over the debt. We will discuss in another post how to deal with lawsuits. You also should remember that you needn’t feel that your only option is bankruptcy. Bankruptcy as a last ditch option that we’ll discuss in the next post. Your ultimate outcome in settling debt is to convince the collections agency to let you pay for the debt in a lesser lump sum.
Look for the Statute of Limitations
Every collector has a certain amount of time where they can legally sue you for not paying the debt. If they try to collect your debt after the Statue of Limitations has past then they have no right to collect from you.
Time for unpaid debt to get off your Credit Report
If your debt has been unpaid for seven years then it will be removed from your credit report. If it is prior to seven years, then you will need to challenge it. Sometimes, the statute of limitations will not have passed even though the seven years have. If that is the case, then you can still be sued for your unpaid debt.
Unsecured debts are the only kind that can be settled
These kinds of debts include:
- Bounced checks
- Student loans
- Personal loans
- Department store cards
- Credit cards
- Medical bills
How much to pay?
Just like debts between $500 and $1000, you will generally want to offer ¼ of the price of your debt.
When Negotiating Debts:
- Try not to talk to the CA (collections agency) via telephone
- Get the physical address, name of agency, and a direct line if you call them on the phone
- Ensure that all of your agreement is made in writing before making any kind of payment to the collections agency
- The older your debt becomes, the more likely it is that you can settle for a smaller amount with the CA
- Do not create an agreement for multiple payments
- Keep records of everything you do with the CA
- Take time to make an agreement
Use the threat of bankruptcy if no other solution works for you getting the collections removed from your record. Talk with the collections agency in a manner that lets them know that there is no way you’ll ever make it and this is the last chance they have to get any money out of you. This is a last chance kind of approach.
Ultimately, if you pay enough money, you can get almost any collections debt off of your credit report.