My husband has a judgement on him for approx, $2500 and we are trying to clean up his credit. We are in the works of trying to pay this judg...

Question

My husband has a judgement on him for approx, $2500 and we are trying to clean up his credit. We are in the works of trying to pay this judgement off, but we don't know for one if everything was done legally. First we set up payments with the collection agency and then things happened and we could not uphold our payment plan so my default they took out a judgement on him. As I was looking at the papers I noticed that they filed it in another county and they mailed the judgement to us. He was not physically served. Is there anyway that we can pay this judgement and get it dismissed? We are tring to pay any old bills in order to get a home loan and this one is top priority.

Answer

You NEED to see an attorney ASAP. There is no way a judgment was obtained without service. Now, could service have been faked...possibly, but when the judgment was entered, the Clerk or Judge would ahve to check and make sure service was proper.

If you are saying your husband or someone else living in the home was not served, then there should be no judgment. You should call the Court in the other county to see if a judgment was filed. It is very possible that you are being lied to. If you are, you have an unfair debt collection claim against the collector.

Answer

I agree with Attorney Love. If there are questions of service then it may be possible for you to file a Rule 60 motion and have the judgment set aside. However, you cannot pay the judgment off and have the judgment opened. There is also a cost benefit to this - even if you file a motion and succeed in having the judgment vacated, all you will do is put yourself back at square one with a lawsuit. If this is your husband's debt and there are no other defenses (statute of limitations or something else) then the money you would spend attacking the judgment may as well as be spent towards resolution of the judgment. Once the judgment has been resolved, either through settlement or paying, then the creditor will have a duty to mark the judgment as satisfied. If you want to pay the thing off in full, you can directly pay the money to the clerk of court and the clerk will automatically mark the judgment satisfied.

Since you have questions about service though, I suggest that you or your husband go to the county where the judgment was entered and ask to see the court file. The court file should contain the summons, including the return of service, complaint, motion for default/summary judgment and entry of default. Make a copy of the court papers and take these to an attorney for review.

There are some questions - why was your husband sued in one county? Did you or your husband live at the address where the complaint was served? Did you move? If there was a return of service and/or affidavit of service completed by the sheriff, process server or courier, what did it indicate? To be served, the sheriff/process server/courier only has to leave the papers with an adult at the address. The creditor does not have to personally server your husband. In cases where service cannot be effectuated via normal means, a creditor has to get permission from the court to serve via publication.

Who obtained the judgment? What was it for? A credit card or some other type of debt? When was the judgment entered? Have you ever contacted the law firm which obtained the judgment to try to resolve? The answers to these questions may help you decide which way you need to go, i.e, spend money to vacate the judgment or try to resolve the judgment.