I am being sued for a credit card debt that is not mine. I received several letters from various attorneys notifying me that I was being sued and offering to help me file bankruptcy. I chose not to. The sheriff tried to serve me twice when I was not home. On the third time my sister, who does live with me, got the papers while I was out of town. When I returned, my sister did not tell me about the papers. About a month ago I received a letter from the court saying that the plaintiffs motion for default judgment was denied and ordering me to appear for trial. At the hearing the attorney offered a settlement, which I refused because I knew that I could win on the merit of the case and believed that I would be able to present a case. The hearing was simply a default judgment hearing to establish damages. The judge called the plaintiff's attorney forward without calling me apparently due to the fact that because it was a default case, she assumed I was not there. The plaintiff's attorney stated that he did not have any evidence and that he needed more time. The judge granted a continuance for thirty days. If I had been able to speak I would have opposed this. I know that I can win if able to present a case. Would the law allow me to get the default judgment thrown out, and present my case as if the time for an answer had not expired since I did not get the paperwork from my sister? I believe she would be willing to testify if needed.
2 Answers from Attorneys
The simple and harsh answer is this - if you continue to choose to try to fumble through it without a lawyer, you will probably continue to lose. Had you contacted a lawyer immediately, you may have had a much better chance at winning. This is especially true if the debt really is not yours and you end up owing more than you would have paid a lawyer. As it is now, you lost the case and the only issue is the amount of the judgment. Just by showing up on Court, you may have waived rights to contest the initial default - something a lawyer would have explained.
You do not indicate when any of this occurred. There are time limits. See a lawyer and determine whether grounds exist to file a motion to open. You generally have to show: (a) that your failure to answer was not your fault; (2) and that you acted promptly upon learning about the judgment; (3) that you have a meritorious defense (you can prove that this is not your debt because you were the victim of identity fraud/theft or they got the wrong debtor); and that you have (4) just cause (i.e. a good excuse - this incorporates the other 3 elements).
You will have a very heavy burden though if you do not seek help from a litigation attorney specializing in defense of credit card debts.