January 15, 2010

By: Shaun Ertischek, Esq.

As you may know, most consumer debt collection law firms file lawsuits in a mass volume practice.  Oftentimes, collection lawsuits are filed without any documentary evidence that the individual actually owes the debt and these law firms predominantly rely on default judgments to help them collect the debt.  A default judgment is an award granted to a plaintiff when the defendant has failed to appear in a lawsuit.  It is, in essence, an automatic win.  The vast majority of collection lawsuits end with obtaining a default judgment.  However, this result should only occur when the defendant was notified of the pending lawsuit and failed to take appropriate action to defend or resolve the matter.

Valid legal notice of a lawsuit is provided when an individual is “served” with a summons and complaint, which usually occurs when it is given directly to the person by a process server (although it sometimes is provided through the mail in certain courts or by substituted service).  Process servers, also working in mass volume, may deliver the legal documents to the wrong individual or may not even deliver them at all.  This bad service is often called “sewer service” because the documents figuratively wind up in the sewer.  In these instances, the defendant is never made aware of the lawsuit against them and a default judgment is usually entered.  At that point, the plaintiff can garnish the person’s wages and levy funds in their bank account regardless of whether or not the individual actually owes the debt.  This is all achieved based upon an affidavit falsely stating that the process server has delivered the lawsuit to the defendant.

Civil lawsuits have been filed against the debt collectors and their process services for this fraudulent practice and the New York Attorney General has brought criminal charges against some of these process servers as well.  If you were never served with a lawsuit and a judgment was taken against you for a debt that you do not owe, a motion to vacate the default judgment can be filed with the court to have the improper judgment removed.