I hope I'm interpreting your question correctly with this answer. If
not, please feel free to request a clarification.
But first, let me emphasize that I am not a lawyer, and this is not
legal advice, but simply an interpretation of information available
online.
There are, essentially, two discrete issues here:
1. Validity of a court judgement. You have limited recourse in
disputing an existing court judgement, and legally, the issue is
somewhat removed from the original action.
2. Private right of action against debt collectors. Although these
actions would not directly affect any judgements, you can sue debt
collectors in a private action. While this would not void the
judgement itself, there are rules that debt collectors must abide by,
and you can sue them for violating them, thus sort of "getting back"
some of the money they collected.
The basic assumption is that, when a judgement was entered, the
creditor was able to establish that the debt was valid. Note that this
is not always the case, but that is the general assumption.
As such, the only real way to actually void a court judgement is to
have the judgement vacated by the courts, by showing a valid reason
that you were not able to be in court. This could be because you were
somehow incapacitated, because you were not properly served with
notice, for example. The case would then be retried.
I'll address both the issue of the court judgements and of the fair
debt collection practices in the sections that follow, and try to
outline generally what your options are and what you might expect.
VALIDITY OF COURT JUDGEMENT
If this judgement was issued by a California Small Claims court, it
was either a default judgement, or not. If it was a default judgement,
you can file to have it vacated, and if not, you can file an appeal.
A. Default judgement: This is a judgement arrived at when one party
doesn't show up in court, often through no fault of their own. (E.g.,
they weren't served notice properly, and weren't aware they were
scheduled for court; they were hospitalized or otherwise unable to be
in court.)
If this is the case, and you did not have an opportunity to represent
yourself, you will need to vacate the court order. This webpage
explains how:
http://www.courtinfo.ca.gov/selfhelp/smallclaims/schow2vacate.htm
According to this page:
"To help the judge decide in your favor, bring whatever evidence you
can to the hearing to show why you were unable to come to court the
first time. An example of what to bring might be a letter from a
doctor or a hospital bill.
If the judge agrees to vacate the judgment, the original case will
probably be heard right then. Be prepared to tell your side of the
story and present your evidence in an organized and concise manner at
that time."
So, any evidence you have of a valid excuse for not showing up for the
original date will be helpful; and be prepared with notes and
materials on your original case as well, in the event that the case is
retried at that time.
The form you'll need to vacate a default judgement is available here:
http://www.courtinfo.ca.gov/forms/documents/sc135.pdf
Note that there are time limitations for this, as outlined on the
page:
"You must do this within 30 days of the date of mailing that is
written on the Notice of Entry of Judgment you received from the
court. You should have a good reason for not having appeared in court
when you were supposed to.
If the reason you did not go to court was because you were not served
with a copy of the claim, you have up to 180 days after you find out
about the default judgment against you to file the Notice of Motion to
Vacate Judgment form."
B. Appeal the judgement: If this was not a default judgement, you can
still appeal the original judgement in small claims court.
See this page for detailed information on how to do this:
http://www.courtinfo.ca.gov/selfhelp/smallclaims/schow2appeal.htm
Some important points here:
* You can appeal for the original amount as well as actual losses
(time, lodging costs, etc.) that you can show you incurred as a
result.
* This is a risky endeavor, as you are now the plaintiff. As such, you
pay the initial court costs, and you also risk the possibility that
you may be held responsible for a greater amount than the original
judgement if the original judgement was not for the full amount sued
for.
* From this page:
"If the court finds that the appeal was intended to harass or delay
the plaintiff, or to encourage the plaintiff to abandon the claim, the
court may award the plaintiff attorney's fees of up to $1,000 and any
actual lost earnings. The court may, if it wishes, award the cost of
lodging and transportation incurred in connection with the appeal up
to $1,000, following a hearing on the matter."
There are time limitations for an appeal, as well:
"An appeal of the small claims judgment must be filed within 30
calendar days of the date of the small claims decision or, if the
decision is mailed to you, within 30 days of the date the clerk mails
the Notice of Entry of Judgment. The date will appear on the form you
receive."
PRIVATE RIGHT OF ACTION AGAINST DEBT COLLECTORS
While this does not officially void any court judgements against you,
you can collect separately from the debt collection agency if they
violated the law in dealing with you. This amount, if collected, would
be completely unrelated to the original judgement.
These two pages both provide a breakdown of the federal law governing
what collection agencies may and may not do in the process of
collecting a debt:
http://www.ftc.gov/bcp/conline/pubs/credit/fdc.htm
http://public.findlaw.com/debtor_creditor/life_events/le21_2what.html
This page provides a nice, plain language summary of what this law
states:
"Can't call you early in the morning or late at night.
Can't call you at your job, if you tell the debt collector you can't
get collection calls at work.
Can't contact you directly if you have an attorney.
...
Can't contact other people about your debt.
Can't bother your family.
Can't contact you at all, if you tell them in writing not to."
This page provides the actual text of this the Fair Debt Collection
Practices Act:
http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm
In addition to the basic guidelines set out above, this outlines the
remedies available to consumers.
"§ 813. Civil liability [15 USC 1692k]
(a) Except as otherwise provided by this section, any debt collector
who fails to comply with any provision of this title with respect to
any person is liable to such person in an amount equal to the sum of
--
(1) any actual damage sustained by such person as a result of such
failure;
(2) (A) in the case of any action by an individual, such additional
damages as the court may allow, but not exceeding $1,000; or
(B) in the case of a class action, (i) such amount for each named
plaintiff as could be recovered under subparagraph (A), and (ii) such
amount as the court may allow for all other class members, without
regard to a minimum individual recovery, not to exceed the lesser of
$500,000 or 1 per centum of the net worth of the debt collector; and
(3) in the case of any successful action to enforce the foregoing
liability, the costs of the action, together with a reasonable
attorney's fee as determined by the court. On a finding by the court
that an action under this section was brought in bad faith and for the
purpose of harassment, the court may award to the defendant attorney's
fees reasonable in relation to the work expended and costs."
This goes on to provide exceptions if the action on the part of the
creditor was unintentional. In order to prove that the creditor acted
willfully and knowingly, you may need to show a pattern of abuse,
evidence that you notified the creditor of the unlawfulness of their
activities, or something along those lines.
This page outlines your options in plain language:
http://www.ftc.gov/bcp/conline/pubs/credit/fdc.htm
From this page:
"What can you do if you believe a debt collector violated the law?
You have the right to sue a collector in a state or federal court
within one year from the date the law was violated. If you win, you
may recover money for the damages you suffered plus an additional
amount up to $1,000. Court costs and attorney's fees also can be
recovered. A group of people also may sue a debt collector and recover
money for damages up to $500,000, or one percent of the collector's
net worth, whichever is less."
I realize this doesn't answer your question exactly as stated, as
judgements aren't vacated based on illegal debt collection measures;
but I hope this answered your question in spirit, at least.
If you'd like clarification on any of these issues, please request a
clarification and I'll try to address your concerns.
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Clarification of Answer by
lisarea-ga
on
26 Nov 2002 11:47 PST
Here's a basic overview of void judgments, from a national
perspective. (That is, it doesn't directly address California laws):
http://www.defraudingamerica.com/void_orders.html
The primary objection listed here is jurisdiction--that is, showing
that the court that ruled did not have the authority to do so in the
first place. This doesn't appear to be the case in your situation,
though.
Richard Cornforth does lectures and publications geared toward voiding
court orders. However, his tactics and methods do not appear to be
straightforward matters of law, but rather interpretations of various
laws that would be tested in individual courts. In order to have full
access to these arguments, though, it appears you'd need to attend one
of his lectures.
This page provides more information:
http://www.taxgate.com/fhrf/
From this page:
"I'm assuming that most are at least passing familiar with Richard's
work. He is something of a pioneer in the area of void judgments, the
need for a competent witness, etc. For the last couple of years he has
enjoyed considerable success at getting judgments vacated and
otherwise defending against foreclosures and the like. His most recent
research is focused on the Federal Fair Debt Collection Act. Most
states have a corresponding act known as the Consumer Protection Act.
He has unearthed a raft of new tools and strategies by studying these
darlings. One of the people Richard works closely with is a retired
lady in Oklahoma City who in the last year has kicked thunder out of
two large Oklahoma City law firms using his strategy. Richard has
given her a new Native American Indian name: "Walks on Lawyers" "
Please note, however, that getting a judgment vacated does not render
it permanently void. See my original answer for further information.
In a nutshell, when a judgment is vacated, the case is retried, often
on the spot.
In order to vacate a court judgment in California, you would likely
have to show lack of jurisdiction as mentioned above, fraud, or some
violation of the California court rules.
The main site for locating California court rules is here:
http://www.courtinfo.ca.gov/rules/
As far as the specific requirements, there are too many to outline
comprehensively here, but here is a general link:
http://www.courtinfo.ca.gov/rules/2002/titletwo/
This outlines the process for serving the defendant with notice of the
suit, the format of any papers submitted, time limitations, and so
forth.
If you're looking for a technical violation, this section would likely
be a goldmine:
http://www.courtinfo.ca.gov/rules/2002/titletwo/201-299-04.htm#TopOfPage
This section outlines in great detail the type of paper, the font, the
color of ink, the format, and so forth.
There doesn't appear to be any specific reference to disallowing
signatures without witness testimony. If the signature is fraudulent,
the defendant has a right to dispute its validity, of course.
Here are the rules of evidence:
http://www.courtinfo.ca.gov/rules/2002/titlefive/1500-end-65.htm
Here are the rules for testimony:
http://www.courtinfo.ca.gov/rules/2002/titletwo/301-391-21.htm
This section states:
"[Restrictions on oral testimony] Evidence received at a law and
motion hearing shall be by declaration and affidavit and by request
for judicial notice without testimony on cross-examination, except as
allowed in the court's discretion for good cause shown or as permitted
by local rule. A party seeking permission to introduce oral evidence,
except for oral evidence in rebuttal to oral evidence presented by the
other party, shall file, no later than three court days before the
hearing, a written statement setting forth the nature and extent of
the evidence proposed to be introduced and a reasonable time estimate
for the hearing. When the statement is filed less than five court days
before the hearing, the filing party shall serve a copy on the other
parties in a manner to assure delivery to the other parties no later
than two days before the hearing."
Note this section, too, which outlines the sanctions allowed for
violations of these court rules:
http://www.courtinfo.ca.gov/rules/2002/titletwo/201-299-59.htm#TopOfPage
This does not specifically refer to vacating the resulting judgment,
but does allow an 'in' in the first paragraph, in which it allows for
"any other sanctions permitted by law."
In conclusion, yes, you can file to have the judgment vacated due to
procedural errors. However, this does not mean that the case can not
be tried again. If the debt is valid and provable, this will likely
only result in a slight delay in collection of any judgment.
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