Out Of The Wild Blue You Owe Money

Someone tells you or you get a letter saying you owe money for a reason you never heard of, such as a loan you never took out or a car accident you were never in. What do you do?

Updated 5/6/04

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This subject was heard on Tom Martino's Troubleshooter talk show ca. May 4, 2004

The caller was saying he had a court judgment against him which he didn't find out about until 4 years after the court date. It was for damages resulting from a car accident he said he was not involved in.

He said he found out about the judgment only after checking his credit report. I forget whether he was concerned about the other party putting a lien on his home or whether the lien was already put on his home.

This was a default judgment, that is, he the caller and alleged defendant did not show up for the court date. He went on to say he was never notified or served about the lawsuit, but that the summons was left at his former address.

What next?

We believe that the plaintiff should still have to prove that the alleged defendant is the responsible person. This is not the same as proving that the responsible person assuming he was properly identified was indeed responsible.

People do move. Therefore the plaintiff has the duty of finding out what is the defendant's last known address and not just assuming that a particular address is. If it turns out that the defendant no longer lives at a particular address, it should be the plaintiff's duty to do skip tracing. A summons served to an old address can be expected not to reach the desired person.

Everything important in this case runs against the plaintiff.

Even after getting the judgment, the plaintiff apparently made no effort to contact the alleged defendant. This should be considered negligence on the part of the plaintiff.

When asked, the plaintiff either could not or would not provide details of the case including the police report on the accident. The plaintiff was said to claim that once the judgment was rendered, it was not necessary to save any of the case documents.

While the law in that state regarded a default judgment final after six months, the caller needs to appeal, claiming that he the defendant debtor had no way of knowing about the judgment and debt while the plaintiff creditor could have easily notified the defendant debtor

It should never be too late to correct an error that later becomes apparent. Nobody is disputing which vehicle's driver was at fault in the accident and therefore there is no need to re-investigate those details. There is just one unresolved issue, whether the person driving the at-fault vehicle was the caller, which is a separate judgable case. To the extent that evidence to prove this issue became lost or faded is the plaintiff's responsibility as the plaintiff did not pursue the defendant for at least four years.

Well Built Buildings On Shaky Foundations

The original case about which vehicle was at fault in the accident may be an open shut case that is iron clad. Yet, the plaintiff has a second hurdle, proving that the defendant named in the case was actually the person driving the at-fault vehicle. Another way of saying it is that the creditor has to prove all three, the I, the O, and the U.

More Tom Martino

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All parts (c) copyright 2004, Allan W. Jayne, Jr. unless otherwise noted or other origin stated.

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