Affidavit of Debt

[treehugger1]

I'm not sure how to post the following. If the moderators need to delete this post, then I understand.

The following link is related to the recent federal court ruling regarding the use of affidavits and "affiants."

Court records here where I live have judgment cases completely full of such affidavits. How will this case open the doors for those cases not related to Midland? Unknown, but it certainly opens the doors for more debtor-friendly judges to help out debtors.

http://creditfactors.com/pro/course/images/8-11-09-opinion-midland-false-affidavit-pub.pdf

What is important about this is that should you (or your attorney) need the case info to cite, the case # is clearly stated, as is the opinion.

[AngelinaCatHub]

I can't read it all, but the preamble is very interesting. This is good info for those who are having trouble with these CAs.

My brother got a Zombie CA letter and it freaked him out. His bk 13 was dismissed for failure to pay but the so called debt he does not recall. He CALLED THE SUCKERS BACK like a fool. I warned him that he best not do that as it is out of the S.O.L. and he can re-trigger that debt with his big mouth. I told him that if he gets another letter let me handle it with a DV. It is a CC five years old. S.O.L. is four years in FL and TN where he lives. They found him as he is attempting to reestablish credit. I told him that was the first mistake. Go cash. He is a disabled Vet and not in real good health. 'Hub

[treehugger1]

I'm wondering how this could go with a default judgment. The oregon civil rules of procedure do allow motions for relief of judgments. And, further research suggests this applies to ALL judgments.

RELIEF FROM JUDGMENT OR ORDER

RULE 71



A 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 on its own motion or on the motion of any party and after such notice to all parties who have appeared, if any, as the court orders. During the pendency of an appeal, a judgment may be corrected as provided in subsection (2) of section B of this rule.



B Mistakes; inadvertence; excusable neglect; newly discovered evidence, etc.

B(1) By motion. On motion and upon such terms as are just, the court may relieve a party or such party’s legal representative from a judgment for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 64 F; (c) fraud, misrepresentation, or other misconduct of an adverse party; (d) the judgment is void; or (e) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application. A motion for reasons (a), (b), and (c) shall be accompanied by a pleading or motion under Rule 21 A which contains an assertion of a claim or defense. The motion shall be made within a reasonable time, and for reasons (a), (b), and (c) not more than one year after receipt of notice by the moving party of the judgment. A copy of a motion filed within one year after the entry of the judgment shall be served on all parties as provided in Rule 9 B, and all other motions filed under this rule shall be served as provided in Rule 7. A motion under this section does not affect the finality of a judgment or suspend its operation.

The important issue here is that the motion for release/vacate must be accompanied simultaneously with a responsive pleading. This is not clear from the statute above to someone such as me, a layperson, however, there is oregon case law that supports both a pleading and a motion for release of judgment be filed simultaneously.

For those of you with interest, here is more from an Oregon Court case opinion:

ORCP 71 B(1) identifies the grounds for the motion for relief from default judgment and its requirements, including details of timing and service. The accompanying pleading or motion to dismiss is identified as a component of the motion for relief. Thus, to be complete, the motion for relief from default judgment must be "accompanied by" a pleading or motion to dismiss. The text and context of the rule reveal that the legislature intended that a motion for relief from default judgment be accompanied by the required pleading when the moving party files the motion.

In other words, it is quite possible to file a motion of release from default judgment. Who would have thunk it?

Why is this important to a debtor in Oregon? Well, it appears that a default judgment is not the end of the story. Motions can continue after the default judgment is ordered. You just need to follow the rules.

It's hard not to giggle, when I think about all the default judgments I see in my local courts filed by out-of-state attorneys. A debtor could drive them NUTS after the plaintiff's attorney thinks it is all a done deal.

The great thing is that a debtor might avoid the cost of filing an answer and the costs of discovery and wait until the judgment is rendered. Then, depending upon support of the debtor's pleading file the motion for relief. (This cost's a lot less.) It's almost brilliant!

What is more important is the new federal judge ruling to affidavits that MANY plaintiff attorney's appear to enter into the court records prior to filing a motion for default judgment. Talk about a powerful "evidence" to support the defendant's pleading! This might be good stuff. Especially if the defendant can cite dozens of cases in their own circuit court where such evidence (affidavits) have been used in the past. I don't see how a judge could not consider the defendant's motion for relief. I can imagine the plaintiff filing a response to the defendant's motion for relief, however, one would think the attorney would need to tread lightly.

BB's correct in stating that this shit (affidavits, etc) has been going on and allowed in courts way too long. In fact I think we may have had this discussion prior to the federal judge ruling on the matter in the case of Midland.

Go, go, go you debtors!