Legal Question in Credit and Debt Law in Georgia

I filed a motion to vacate on an 6 yr old judgment that I am being garnished for

the funds are still held by the court until the motion can be heard . I used 2 reasons a mistake that I ansewered the notice within the 30 days allowed and stated back then it wasnt my debt cited Dalminter v.Edwargs and new evidence under CR59b. Plaintiff answered my motion, he state it is time barred should have filed within 3 years also when I ask for verification of the debt it not the porper basis for setting aside a judgment. Are they also time barred trying to collect on a 6 yr old debt the statue of limitation is 6yr in GA. this original case was filed in 6/6/07

Asked on 6/22/13, 5:58 am

3 Answers from Attorneys

Scott Riddle Law Office of Scott B. Riddle, LLC

To be blunt, your post indicates you really do not know what you are doing and are just fumbling around. Most of what you posted has no relevance to your situation (ie, statute of limitations, debt validation), and other things are defenses you should have raised in the initial suit. Your post also indicates that you actively participated in the suit. You can either hire a lawyer, or not have much chance of getting anywhere (and may have to pay the additional collection fees).

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Answered on 6/22/13, 6:26 am

Statute of limitations time is over. There is no statute of limitations on a judgment. Statute of limitations is ONLY a legal defense that must be raised in a timely-filed answer with the court in response to your initial receipt of a summons and complaint.

To be enforceable, judgments have to be revived after 7 years. However, judgments never go away. If the judgment was entered back in 2007 then it can still be enforced via wage garnishment, seizure of assets owned free and clear or levy on bank accounts as applicable if you have any of these things.

You are well outside the time for opening the judgment. If the judgment was entered in 2007, it is very unlikely that it is going to be opened now. Why did you not answer the complaint? Not knowing what to do is not going to be an excuse. I am not trying to be rude or mean but the courts are not overly sympathetic and the court is going to be asking these kinds of questions.

For a judgment to be opened, to best maximize the chance for success, it should be filed within 3 years of entry of the judgment or as reasonably promptly upon learning of the judgment as possible; you have to allege that if the judgment is opened, that you have a meritorious defense to the underlying legal action (i.e. like identity fraud or statute of limitations maybe); and that you have good cause (i.e. a really really good excuse) as to why you failed to timely file an answer. You not knowing what to do is not a good excuse.

Verification also is not proper if a lawsuit was filed and judgment entered. Verification/validation only applies to pre-judgment efforts to collect on a debt by a debt collector. Once a lawsuit is filed, verification time is OVER. If you want "verification" the way to get it is by (a) timely filing an answer to the complaint denying liability on the debt; and (2) sending the creditor discovery (interrogatories, requests for production of documents and requests for admissions or possibly depositions).

Filing an answer denying liability is not grounds to re-open a judgment. Assuming that you timely filed an answer, that means that summary judgment was entered or the case was actually tried. Either way, the creditor would have had to produce evidence to the court that this was a debt for which you were financially responsible and that the amount sought in the complaint was owed. Dalminter v. Edwards, 27 F.R.D. 491 (S.D.Tex.1961 is a Texas case and is irrelevant in a Georgia state law case governing the standards for opening a judgment. You do not indicate whether you filed an answer with the court or only with the law firm,. Filing with only the law firm is a nullity. To be effective an answer must be filed with the court and you trying to be your own lawyer is not an excuse regardless of what the federal court thinks.

Your motion is untimely because you only had 3 years to challenge. Below is the law concerning relief from judgments:

9-11-60. Relief from judgments

(a) Collateral attack. A judgment void on its face may be attacked in any court by any person. In all other instances, judgments shall be subject to attack only by a direct proceeding brought for that purpose in one of the methods prescribed in this Code section.

(b) Methods of direct attack. A judgment may be attacked by motion for a new trial or motion to set aside. Judgments may be attacked by motion only in the court of rendition.

(c) Motion for new trial. A motion for new trial must be predicated upon some intrinsic defect which does not appear upon the face of the record or pleadings.

(d) Motion to set aside. A motion to set aside may be brought to set aside a judgment based upon:

(1) Lack of jurisdiction over the person or the subject matter;

(2) Fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant; or

(3) A nonamendable defect which appears upon the face of the record or pleadings. Under this paragraph, it is not sufficient that the complaint or other pleading fails to state a claim upon which relief can be granted, but the pleadings must affirmatively show no claim in fact existed.

(e) Complaint in equity. The use of a complaint in equity to set aside a judgment is prohibited.

(f) Procedure; time of relief. Reasonable notice shall be afforded the parties on all motions. Motions to set aside judgments may be served by any means by which an original complaint may be legally served if it cannot be legally served as any other motion. A judgment void because of lack of jurisdiction of the person or subject matter may be attacked at any time. Motions for new trial must be brought within the time prescribed by law. In all other instances, all motions to set aside judgments shall be brought within three years from entry of the judgment complained of.

(g) Clerical mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.

(h) Law of the case rule. The law of the case rule is abolished; but generally judgments and orders shall not be set aside or modified without just cause and, in setting aside or otherwise modifying judgments and orders, the court shall consider whether rights have vested thereunder and whether or not innocent parties would be injured thereby; provided, however, that any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.

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Answered on 6/22/13, 1:22 pm
Glen Ashman Ashman Law Office

Let me be blunt. Your post tells me you have no clue what to do (and the statute of limitations doesn't apply after a judgment). You can continue pro se, and lose, or see a lawyer, to see if you have any defenses (and you haven't shown any in your post) or if you have other options such as bankruptcy.

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Answered on 6/22/13, 3:57 pm

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