Received informational subpoena

[treehugger1]

Go the courthouse where the judgment was authorized. Pull the file of your case. Somewhere in the file there should be a copy of "service" or affidavit of service. See what was done to "serve you." If the service was not in accordance with your state laws, I would file a motion to dismiss and request relief from the judgment. Every state is slightly different.

I am about to file a motion for relief of judgment against a law firm/OC who has a default judgment against me. When they applied for the default judgment, they were responsible for providing evidence of my connection to the account. In their motion for judgment, they attached a notarized affidavit signed by some woman from citi that claimed to know "everything about the account." I have repeatedly attempted to contact the person who signed the affidavit, but no one appears to have ever heard of her. There is some recent federal case law related to the use of affidavits and their legitimacy in civil courts. Since it only costs me about $50 to file a motion, I think I'll play my hand. Since a judgment has already been established, my motion will be two-fold. 1) reopen case and 2) declaration that the affidavit presented by the law firm is possibly fraudulent with respect to the plaintiff.
I will state the recent federal case related to affidavits. While the case in the federal court was related to a collection agency, I'll let my local judge decide whether the motion has merit and is in the same spirit of the "similar" federal case. That is what judges are supposed to do.

You can someimtes find forms for motions in your state down at your local county/city library.

[JustFileSuit]

[QUOTE=treehugger1;363591]Go the courthouse where the judgment was authorized. Pull the file of your case. Somewhere in the file there should be a copy of "service" or affidavit of service. See what was done to "serve you."

If the service was not in accordance with your state laws, I would file a motion to dismiss and request relief from the judgment

.

Please note that at, at this point, the issue has apparently gone to Judgment. Now the case is "closed," assuming the appeal period has run. So the Judgment Debtor (that is you, and "Ohio,") cannot just file a "Motion to Dismiss" or otherwise. There is no open docket. It is a procedural issue. So you first have to get your case "Open" so that the Court has some standing to deal with your Motion.

First step is to Motion to Open Judgment. The "pleading," or grounds for this, is that the Court never had proper jurisdiction over the person due to lack of proper Service. You establish that by an accompanying Affidavit setting for th the facts - that you were not served, and that the return of Service was defective or untruthful.

Now the problem with this is that, IF the return of Service states that the Complaint (and Summons) were served "at abode," then it becomes the word of the process servicer against you. If the server of process is a Sheriff, you lose (probably). If it is a private individual, you have a shot -their credibility is quite a bit less with the Courts. If you lose, you STILL have another shot, as the denial of the Motion to Open sets up an Appeal Period where you can go file in the next court up (typically, the Court of Appeals) and ask for Review of the decision of the lower court (the trial court) to deny you the Motion to Open.

What you want to remember that the Decision of every Judge up and down the chain is ultimately reviewable by yet another court and another Judge- as long as you adhere to the time limits proscribed by the Rules of Court. You filed these Rules (in the State Court systems) in the books titled " XXX(name of state) Rules of Court." There is a copy located at every State Court library - just ask the librarian.

In the Rules of Court, there is usually an Annotated Version. Incorporated or appended thereto, sometimes in a separate volume, is a companion book titled "Book of Forms." That book will set forth the typical Forms you follow in your various Motions. The proposed Forms have a fill-in-the-blanks format, so they are easy for the novice to use. It is precisely for this purpose that they are published - so that attorneys can actually file something coherent with the Court. I have seen Courts (the Chief Clerks of the Court) send a Form Notice out to attorneys stating: "Please file your Motions so that the Court can understand what it is you are asking." (!). Means what the attorneys there are Filing is so confused even the Clerks and the Judges cannot figure out what the requested relief is. Goes on all the time. So your pro-se form is not going to get all that hammered.

When you style a Motion, it is simply: Caption Heading, which is the names of the Plaintiff v. the names of the Defendants on the Left side, and the docket number on the right side, and the name of the County Court you are in either on the top or on the right side (just take a look at what everybody else is filing and copy the style) and then the date down on the lower right. Then you skip a line or two, and in Bold Print if you can you Center the Name of the Motion, in this Case: "Motion to Open Judgment". Then you go down a few lines, and you say something to the effect of: "The named defendant in the above-captioned civil action hereby respectfully Motions this Court to Open and Set Aside the Judgment issued by default by the Court on xxx date, on the grounds of lack of jurisdiction over the person. (or whatever your grounds are). [You can cite the Rules of Court section here if you like]. In support hereof, the defendant further represents as follows:

1. The civil action was brought by Summons and Complaint dated xxx, in which Plaintiff claimed yyy. The return of Service suggests that the defendant herein was served on xxx (by abode) (in person).
2. As the Court will note in the Affidavit of Defendant, attached hereto as Exhibit 1, the Defendant was not properly served in that ....."
3 onward: other facts or allegations you want to make.
4. [Do note that you will probably have to make some allegation that you have a valuable defense to the matter in controversy, like a subrogation to another party, or defective goods purchased, or wrongful charges, in order to get some traction in this Court.)
WHEREFORE, the defendant respectfully asks for relief by the granting of this Motion to Open Judgment, so that a proper defense to the Complaint may be presented to this Court. " And you sign it with your name and address below your signature. Then you go down and File it and Serve a copy onto the plaintiff's attorney, and you file with the Motion a Certificate of Service setting forth the date you mailed a True Copy of the Motion to the plaintiff's attorney. And then the matter comes up for a Hearing, and you get to present Oral Argument. And that is where it gets interesting.

I am about to file a motion for relief of judgment against a law firm/OC who has a default judgment against me. When they applied for the default judgment, they were responsible for providing evidence of my connection to the account.

In their motion for judgment, they attached a notarized affidavit signed by some woman from citi that claimed to know "everything about the account."

Short response: the woman's affidavit is utter nonsense. All she could possibly attest to is that she looked at a computer printout made and maintained by another, and that is not proper grounds for personal knowledge. Affidavits of this type can only be on "personal knowledge." So the inputs into the company debt file can only be attested to by someone who made the inputs, or can attest to the manner of the inputs and was independently verified by the affiant as true. And that never happens, especially with an outfit like "Citi." Never, never, never.

I have repeatedly attempted to contact the person who signed the affidavit, but no one appears to have ever heard of her.

Don't be surprised when you fine out the woman does not even exist. the entire affidavit smells like a fabrication. Happens all the time (shocking, yes). Demand that the affiant be presented to the Court for examination on her averrals. that should be interesting.

[JustFileSuit]

Leaving your Forum - so long, folks.

Your bankruptcy forum Guru "HHM", otherwise quite anonymous, has hit me with a 2-points "infraction" penalty after taking umbrage at my post here, otherwise unexplained. Since I am thin-skinned, I now leave your Forum. For those of you who have problems figuring out how to format and file "Motions" in your various cases, I would suggest you look at the Book of Forms you should be able to find at the local court house library. Ask the librarian; they are generally quite helpful to unrepresented persons. Good bye and good luck with it. Don't be shy about being creative; that is how the practice of law advances. Happy New Year to all.

And, as a final gambit - just file suit!

[OHBOY]

'JustFileSuit' Quote:"Your bankruptcy forum Guru "HHM", otherwise quite anonymous, has hit me with a 2-points "infraction" penalty after taking umbrage at my post here, otherwise unexplained. Since I am thin-skinned, I now leave your Forum"


OH NOOOOOOOOOOOOO!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
I just read your WONDERFUL AND MOST DETAILED posts, and being MOST GRATEFUL for all the time you put in to compose all of the valuable information, I was just going to write to THANK YOU when I read the latter post......... Of course my THANK YOU remains, now even with larger emphasis.....

I am DUMBFOUNDED (!) as to WHY 'HHM' would do something so highly undesireable as to discourage, or repremand 'JustFileSuit'......no, it's worse than that: I feel I have lost a GOOD, and VERY HELPFUL friend.....a friend in NEED indeed !

Is there any way to try and reverse whatever is going on ? PLEASE !

[treehugger1]

[OHBOY]

"HHM":
I know this may be veering off the thread a bit...but, as I feel that I have benefitted by reading posts by 'JustFileSuit' could you kindly fill the forum in as to 'what the heck is going on'

I did think of PM..ing you, however I recall reading the suggestion to post so that all members get to read input...

There apparently is something to learn here...could you please relate what it is ?
I have reread this thread, and I am confused as to why 'JustFileSuit' obviously is upset enough to leave this forum, stating that he was (quote) ..."hit me with a 2-points "infraction" penalty".

Seems to me that if 'JustFileSuit' made an error somewheres along the line, or misquoted anybody (?) that it have been brought out in the open....?

Sure is a big loss to this forum to see 'JustFileSuit' bid 'goodbye', .....seems to me that something here is 'amiss'...........

[JustFileSuit]

[QUOTE=treehugger1;364064]

Well, in my case here in Oregon, Justfilesuit is not correct about procedure in terms of challenging a judgment.

All true. Oregon is a special case. I neglected to add the caveat. I have only had a handful of cases in Oregon State Court; slipped past me. Outside the elements recited in Sec B., you can file the Motion to Open Judgment, of course (ask the Clerk for specifics).

A Clerical mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission

Clerical mistakes, or "scrivener's errors" on the part of the Clerk of the Court, are typically correctable without the Motion to Open. That is not the apparent problem that OHBOY faces.


The "mistake" or "surprise" recited here is not typically construed to mean a situation where the defendant claims failure of service upon the person (or at abode). The thrust of this is (generally) towards situations where counsel did not receive Notice of Hearing or a matter was not calendared. In Florida, I have seen situations where the plaintiff's counsel simply failed to "tick" the office calendar that a trial was to be held, and the judgment of the trial (default to defendant) was set aside. Amazing but true; that's Florida.

A motion under this section does not affect the finality of a judgment or suspend its operation.

And that is a problem with the procedures taken under this Section. Meanwhile the defendant is still operating under a Final Judgment, and all that that implies. In States where a Motion to Open Judgment is filed, then the Hearing of the Motion acts as a brake on the collections of the Judgment. And a denial of that Motion to Open is in turn appealable, which continues to act as a brake, unless of course the plaintiff by counsel Motions that for purposes of appeal the Stay is vacated.

One other tidbit for pro-se filers: Note especially that you also have to file an Appearance in order to have the mechanisms of the Clerk's Office send you Notices of the hearing, and adverse pleadings in opposition, and so forth. I had neglected to add this procedural step in the earlier post. You have no Appearance in your defaulted case, so as far as the Clerk's Office is concerned, you do not exist. The Appearance gets you onto the Rolls of the mailings, and obliges the adverse party to send you copies of their pleadings, and certify same to the Court.

I finish this up only so that loyal readers have a more complete picture; I leave this Forum, due to the umbrage wreaked by HHM. Your "Guru" certainly will fill you all in on the intricacies of pro-se oppositions to collections matters. He is both more learned, and more skilled, and much more talented, in these matters to levels far greater than I would ever attain. He invites you to repose your faith, trust and confidence in his counsel, not mine. And remember: when all is said and done, you can still ... Just File Suit.

[treehugger1]

JustFile, thanks again. I spent a bit more time today speaking with clerks and reviewing case files. It runs out that I can file a motion to "set aside" the judgment. This is under a different rule of procedure, but is completely allowed. Since the clerks are free to answer procedural questions, they speak freely.

The motion for relief from judgment will suspend any garnishment attempts until a ruling can be established on another motion to set aside and dismiss the judgment. I found several examples in the hard-copy files at the courthouse. A few examples were related to criminal cases (odd, I thought,) but several civil cases had motions to dismiss judgments. I am using these to form my motions and pleading. Interestingly, many of these appear to be accepted by the judge. In my opinion, such motions were generally met with no response by the plaintiff's attorney, especially the out-of-state attorneys. I guess they got their money from the plaintiff and packed up and moved on to new fruit. LOL