DISCLAIMERS: we are only giving you the information and the steps to add real tradelines to a credit report the legal way that does not involve UCC1.
PLEASE UNDERSTAND THIS:
1. This is INFORMATION that you have READ! We cannot read this course for you! You have to read it a few times in order to get the gist of this, because it is new information. We are breaking this information down to the best of our ability. We are not responsible for your level of understanding. Some people learn faster than others. Please do not call us teeing us you are not good at reading or understanding. We assume that if you purchased this information, you can read and comprehend.
2. The Account Assumption method is a little tedious but effective when done correctly.
3. There is no quick fix when you are doing things the legal way.
AUTHORIZED USER METHOD
Adding Trade lines
The simplest, easy and FASTEST way to add trade lines is AUTHORIZED USER (AU) accounts. This manual will teach you how to acquire AU accounts.
An authorized user is someone other than the account holder who can be added to a credit card account. If you have poor credit, having yourself added as an authorized user to the account of someone with a high credit score, low account balance and high credit limit, can improve your credit scores in a couple of ways. To begin with, the positive credit activity will begin appearing on your credit reports. Making a positive impact on your FICO scores.
Additionally, the new credit line will increase your available credit and, at the same time, lower your debt ratio which can further improve your credit scores:
Adding Trade lines is not a new practice. It is a simple a coin termed by credit repair/improvement companies. Adding trade lines is the old school credit boosting method called “PIGGYBACKING” Piggybacking is LEGAL and recognized by FICO credit scoring.
PIGGYBACKING
Piggybacking is the act of improving your credit score or rating by becoming an authorized user on someone else’s credit card. By doing this, you receive all the benefits of having good credit without actually having built any of the credit yourself. It is most often used by parents with their children or with spouses. In recent years, the practice has become controversial because companies sprang up to act as middlemen, matching up strangers – one with bad credit, one with good.
It been a practice for quite some time for persons who wanted to establish credit or improve their credit to be added as an authorized user on a relative’s credit card. The account is considered just the same for credit scoring as if it were owned by the authorized user. The authorized user benefits from the good credit history provided by the owner of the account. However, it can also have a downside. If the owner of the account did not pay the account agreed and on time, the negative actions would also affect the authorized user.
Credit Bureau EXPERIAN supports and recommends piggybacking as a way to boost your credit score. Here is Q & A excerpt from their website concerning this method:
Dear Experian,
My wife had no credit history before we were married. I set her up as authorized user for a couple of my frequently used credit cards. Does this help her build up her credit history? HNA
Dear HNA,
Including your wife as an authorize user will help her establish a credit history.
Authorized user accounts are included in a credit report and can be considered when making lending decisions.
However, an authorized user has no responsibility for repayment of the debt. For the reason, they often have less bearing on the lender’s decision, and may not be included in some credit score calculations.
Although authorized user accounts are not always included in credit scores, they will result in a credit history being established and eventually can help your wife qualify independently for her own accounts.
Adding your wife as a joint account holder may be more beneficial if you are trying to establish a credit history that will enable her to qualify for credit on her own more quickly.
As a joint account holder she will share full responsibility for the debt. Joint accounts will appear on both your report and hers, and will be included in credit score calculations, which is essential to qualifying for credit independently.
Thanks for asking.
CREDIT BUREAU REACTION
This practice attracted the attention of FICO as well as the three credit bureaus and resulted in the “FICO 08” scoring model which was designed to ignore authorized user account when calculating credit scores.
But FICO 08 also caused a problem. According to FICO, the government informed them that ignoring authorized users would obstruct FICO’S compliance with the EQUAL CREDIT OPPORTUNITY ACT, Regulation B – a rule that requires lenders to consider shared accounts of spouses when determining a married person’s credit risk. By ignoring these accounts, FICO 08 would be in violation of Regulation B.
According to FICO, it has since adjusted the formula of FICO 08 to include authorized users while reducing the impact of piggybacking. This means that as it now stands, authorized users continue to be included in FICO’S formula.
HOW IT’S DONE
Solicit credit card account holders with high credit scores, offering to pay them for the right to add authorized users to their accounts. Then assign a client to one or more these accounts. These authorized users cannot use these credit accounts or gain access to any personal or financial information they contains. But by being tied to them, authorized users can take advantage of the payment histories to improve their FICO scores.
The account will appear on the authorized user’s credit report at the end of the BILLING CYCLE of that account. That can happen in as little as 10 – 14 days depending on the timing of the creation of the account.
Understand that credit card companies are not concerned about the credit history of authorized users. They don’t not even perform a credit check. Since the account is already open under the original applicant’s credit (and that credit was sufficient), credit card companies usually allow one or two additional authorized users.
Contact the customer’s service department or account servicing department of your credit card company. Ask whether or not they allow authorized users.
Obtain a copy of an Additional Cardholder Authorization form. These will vary from lender to lender, but essentially the document tells the original borrower that he or she is responsible for any debts accumulated by authorized users.
Carefully review the document with proposed authorized user. Original borrows also have the power to remove authorized users at any time.
Most credit card companies allow you to create authorized user accounts online, check with each credit card companies or bank that the account is with to learn how to add AU accounts ONLINE.
HERE ARE SOME SAMPLE SITES:
An initial 90 days fraud alert indicates to anyone requesting your credit file that you suspect you are a victim of fraud. When you or someone else attempts to open a credit account in your name, increase the credit limit on an existing account, or obtain a new card on an existing account, the lender should takes steps to verify that you have authorized the request. If the creditor cannot verify this, the request should not be satisfied. You also request one additional free credit file disclosure. To request you initial 90 day fraud alert online.
An active duty alert is available to persons on active military duty and is similar to an initial 90 day alert, except that it lasts 12 months and your name is removed from prescreened offers of credit or insurance for 2 years. Request your active duty alert online.
For any of these alerts, you will receive a confirmation when the alert is added to your credit file.
HOW IT WORKS:
Equifax works with the other two nationwide credit reporting agencies, Experian and Trans Union, so that when you request an alert through Equifax, you request is automatically sent to the other two agencies. Generally the alert will be placed on your credit file with all three agencies within 48 hrs.
NEXT STEPS:
To place a Fraud Alert on your Equifax credit file:
ONLINE: Place an Initial 90 Day Fraud Alert or Active Duty Alert.
CALL: 1-800-525-6285 OR
WRITE TO: Equifax Information Services LLC
P.O. Box 105069
Atlanta, GA 30348-5069
EFFECTIVE AND PROVEN CREDIT REPAIR STRATAGY
The basic strategy to repairing your credit is as follows:
1. Get and review your credit report.
2. Analyze your report.
3. Make a list of all items you consider to be questionable or negative. Clearly identify each item in your report that you dispute, explain why you dispute the information.
4. Write a dispute letter bureaus.
5. Send the letter to the credit bureaus. Make sure you send it registered or certified mail.
6. Document you efforts. Record when you send your letters, and the result.
7. Wait for the bureaus to investigate your claims.
8. Analyze the results.
9. Specialized techniques. Was the item deleted or changed to your satisfaction? You may continue steps 1, 2 and 3 above until you feel the dispute is settled satisfactorily. Remember, there is no charge for a reinvestigation. If you don’t get the results you want, dispute the listing again.
That’s all there is to it. Seems easy enough buy must have patience, because the credit bureaus are not always very cooperative. The make their money by providing credit reports to lenders not by fixing bad information in their databases.
1. ANALYZE YOUR CREDIT
As for Jan 1, 2004, due to the new FCRA Act of 2003, all credit bureaus will be required to give out one free credit report per year. They are rolling this program out slowly as the year rolls on. You can see when you are eligible for a free report. Note: The Credit Bureaus are not required to give out your credit score for free. If you want to order your score in addition to your free reports, most are charging about $5.95. The free reports are good for 30 days only, so make sure you print your reports if you get them online.
You can order your free annual credit report online at www.annualcreditreport.com by calling 1877-322-8228, or by completing the Annual Credit Report Request Form and mailing it to: Annual Credit Report, Request Service, and P.O.Box 105281, Atlanta, GA 30348-5281.
When you order, you need to provide your name, address, Social Security number, and date of birth. To verify your identity, you may need to provide some information that only you would know, like the amount of your monthly mortgage payment.
2. ANALYZE YOUR CREDIT REPORT.
After reviewing his credit reports, Eduardo made copies, and then highlighted everything he saw as a negative listing. Most of them were medical collection, and were easy to spot. However, he does notice that one of the bureaus is reporting him as late on a payment to one of his credit cards, and he knows he paid it on time.
In addition, Eduardo has read that as part of the new FACTA legislation to protect consumers from identity theft, he was suppose to have been notified of the negative mark. He is sure he was never notified.
3. RANK QUESTIONABLE/NEGATIVE ITEM
Step 2 covered how to identify items, both positive and negative on your credit report. Now you have this list, you should rank each item according to the amount of damage they are doing to your overall credit picture. Rank the most damaging information first, followed by the next most damaging information, Followed by those items which are neutral. Do this for each credit report, as remember, they may not all have the same information on them. They may even have duplicate information. If this is the case, you will need to write to each credit agency individually for each duplicate item.
The items here are listed in order of descending importance with the first item being the “most damaging” to your credit.
BANKRUPTCY
FORECLOSURE
REPOSSESSION
LOAN DEFAULT
COURT JUDGMENTS
COLLECTIONS
PAST DUE PAYMENT
LATE PAYMENT
CREDIT REJECTIONS
CREDIT INQUIRIES
Also, if your creditor has NOT NOTIFIED you of negative information they have recently place on your credit report, they are currently in violation of the Fair Credit Reporting Act. You can used this to pressure the original creditor to remove the listing by reminding them they are in violation of the FCRA by not notifying you.
4. REQUESTING CORRECTIONS AND DISPUTTING YOUR CREDIT
What should you Challenge?
Everything and you should always shoot for a complete deletion. Don’t bother challenging the information within a collection listing, charge-off, court record, repossession, foreclosure, or settled account. As the basic nature of these listing is negative, changing the information within the listing will yield no improvement. Severely negative listing, such as these, must be disputed on the basis of complete deletion or not be disputed at all.
What items are the toughest to get off your report?
You will have the toughest time getting bankruptcies and foreclosures off of your credit report as these things are so easy for the credit bureaus to verify. In the case of a bankruptcy, you most likely will have a few trade lines saying “included in Bankruptcy”. If you want to challenge your bankruptcy, you need to clear off all credit lines mentioning a BK FIRST.
5. MAKE SURE YOU SEND EVERYTHING REGISTERED OR CERTIFIED MAIL.
This is important, as you must be able to tell when letters were sent and received. It gives you some leverage with the CRAs if they don’t respond in the time frame required by law. KEEP ALL OF YOUR CERTIFIED MAIL RECEIPTS AS PROOF!!
6. DOCUMENT YOUR CREDIT REPAIR EFFORTS
As soon as you have ordered your credit reports and photocopied your order letters and checks, you must create a precise organizational system to track your correspondences with the credit bureaus and your creditors. Why is this necessary? Unfortunately, credit items you have worked so hard to remove
Mysteriously reappear. If this happens, it is usually easy to have the items deleted permanently if you show your complete records on the first removal. Why take a chance? As you proceed through these steps, keep copies and record of all correspondence you send and receive. Copies of all correspondence are a must, as well as note on all telephone conversations! Also, if you should encounter any special difficulty and would like help in repairing your credit, you will need these records to proceed.
Every time you have a telephone conversation with a creditor, you must document the conversation by recording the name of the person whom you spoke, his name or her position, the date and time of the conversation, what was said in the conversation, and what was agree upon…
7. WAIT FOR THE CREDIT BUREAU TO FINISHING INVESTIGATING….
Once the credit reporting agency has received your dispute letter, they are obligated to investigate. This obligation is not contingent upon you having been denied credit. According to the Fair Credit Reporting ACT OF 1997 (see attachment 3) the credit bureaus must take the following steps.
1. The credit reporting agencies must resolve consumer’s dispute within 30 days limit.
2. In response to consumer’s complaints that documentation in support of their disputes was disregarded, the credit bureaus have to consider and transmit to the furnisher all relevant evidence submitted by consumer the first time.
3. Consumers will receive written notice of the results of the investigation within five days of its completion. Including a copy of the amended credit file if it changed based on the dispute.
4. Once information is deleted from a credit file, the credit bureaus cannot reinsert it unless the entity supplying the information certifies that the item is completed and accurate and the credit bureau notifies the consumers within five days.
The Federal Trade Commission says that inaccurate credit report is the number-one source of consumer complaints, and that it is quite common for problems to take six or more months to be resolved. All of the big-three agencies are working on making sure that all disputes are handled within 30 days.
If the new investigation reveals an error, you may ask that a corrected version of the report to be sent to anyone who received your report within the past six months. Job applicants can have corrected reports sent to anyone who received a report for employment purposes during the past two years. However, this is unlikely to repair any damage done when your credit report was first pulled, so don’t waste your time or energy on this approach.
8. EVALUTE THE RESULTS OF YOUR REPAIR EFFORTS.
You did save the original credit report your ordered, didn’t you? And each item you challenged? Good, you will need them to evaluate how well you did. Its all part of Step 5 above, documenting your efforts.
When you get your “repaired” credit report back from the credit bureaus, they will summarize what changed on your credit report due to your challenges. You can compare this list to your own notes or just to the previous credit report.
9. SPECIALIZED TECHNIQUES:
Depend on the type of listing, you may also want to try these separate techniques.
1. Collections: – you should always try to use the debt validation technique on collections. This should be in addition to your credit repair efforts with the credit bureaus.
2. Charge-offs: Try disputing the information within the listing, like the date the account was opened, the high balance, the amount owed, etc. if any of the information is incorrect, you have a good chance of getting the whole thing deleted off of your report.
3. Judgments: if you were never served for a judgment, you may have a chance of getting it vacated (voided), or there may be other technicalities that you can use. File for a Motion to Vacate.
The results of each item will have been resolved in one of five different ways:
1. If the listing is not mentioned in the results list, you must have forgotten to include it, or your request was not sufficiently clear. You will need to dispute the item again in your own next dispute letter. The bureaus are legally obligated to respond in writing within 30 days, so if they don’t it is highly unlike they are ignoring you.
2. The dispute item was investigated but verified. If you don’t get the item removed, most likely, the credit bureaus will have just given you a cryptic reason as to why like “item verified”. The creditor may have responded to the credit bureau’s request for re-verification. They may have simply said that they listing was correct, and in this case, the bureau will take their words for it. Now it is up to you to prove to the bureau that the item is not correct. The law required that the bureaus accept any proof you may submit, as well as to pass any documentation you provide on to your creditor for consideration, so be sure to send any documentation you can, if you didn’t do it the first time. You could also try disputing the listing again at the future time. Who knows, you may get lucky, and a different employee of the creditor may not be able to verify the item.
3. The disputed listing was investigated as to the correctness of the information within the listing (such as late pay notations) and the listing was found to be inaccurate or unverifiable. Remember, if the creditor doesn’t respond to the bureau at all, this is the same as the listing being unverifiable. In this case, the negative listing will now show up as a positive listing, or it will be deleted from your report all together. This is the best possible outcome.
If you are not getting the desired results from the credit bureaus Credit Bureau disputes are not handled by computers, but by people, so they possibilities that your claims was misunderstood, overlooked or mishandled is good. Fixing your credit takes time, and there is nothing you can do to expedite the process. However, you can always resubmit your claims.
TIPS FOR RESUBMITTING YOUR CREDIT DISPUTE.
1. Be persistent! Become more insistent, but not more threatening, with each dispute. As you submit one dispute after another, it may become increasingly difficult to get the checker to initiate an investigation. Your first one or two disputes should be friendly and polite. Just like any other consumers, you can become frustrated and threatening as time passes. You may threaten to hire an attorney, you may threaten to complain to the FTC and your states attorney general, etc but don’t overdo it.
2. Be creative – Create and utilize other techniques that help further the idea that the dispute letter is from a truly wronged and disadvantage consumers. The checker is only interested in investigating disputes that truly are erroneous and damaging. Again, because the agencies are flooded with request, they tend to give priority to those that seem most urgent.
3. Do not bombard the credit bureaus with disputes (about the same listing that is) do not bombard the credit bureaus with disputes. Sending one dispute right after another is wasteful and counterproductive. You may wind up alienating the credit agency show that they hold up your progress. (Remember, they cannot legally stop you from restoring accurate information but the people who will run the agency, like anyone else, probably do not respond well to harassment.) Also remember, that credit repair is a time-consuming operation requiring great patience. The rule of thumb is to wait 60 days between disputes of the same listing.
SAMPLE LETTERS FOR DISPUTING CREDIT
Sample Letter 1 – Initial letter to credit bureaus
Credit Bureau
Credit Bureau Address
Some City, Any State 56789
RE: Your Name
Your Home Address
Your SSN
Your DOB
Request to Dispute Account information on My Credit File
I currently received my credit reported and located the following serious problems of inaccurate reporting. This is my very first time disputing my credit report because I have just accepted that I had bad credit and became a victim of it. Please do not regard this investigation as a frivolous letter. (You may use a personalized comment here like, “I don’t know what went on in my name because someone hacked my computer” or whatever the reason why you were not aware of these erroneous derogatory items.)
I don’t know what these collection, account are for. (or, if it’s a late charge you can dispute the late payment or anything that is wrong, you can point it out here) I have contacted these collection agencies (or whatever company it is) to validate these debts, so therefore I am disputing the validity of these debts.
(List all of your disputed accounts and any other “inaccurate” information along with all the corresponding information regarding that account here)
Under the provisions of the Fair Credit Reporting Act (FCRA) and the timeframe allowed, please re-investigate and delete/correct this information. Please send me the names and the address of the persons contacted. I shall assume that thirty days constitutes a “reasonable time” to complete the actions constitutes non-verification and these item must be promptly deleted according to the Section 611 (a).
Also according to Section 611 (a) for the Fair Credit reporting Act, please send me notification that the items have been deleted. Send an update copy of my credit report to the below address. According to the provisions of Section 612, there should be no charge for notification of changes of my credit report.
Sincerely,
Your Signature Here
Your Name
Your Home Address
Your SSN
Your DOB
Sample Letter 2 – Initial letter to credit bureaus
Your Name
123 Your Street Address
Your City, ST 01234
The Credit Bureau
Bureau Address
Any town, State 56789
Date
Dear Credit Bureau,
This letter is a formal complaint that you are reporting inaccurate credit information. I am very distressed that you have included the below information in my credit profile due to its damaging effects on my good credit standing. As you are no doubt aware, credit reporting laws ensure that bureaus report only accurate credit information. No doubt the inclusion of this inaccurate information is a mistake on either your or the reporting creditor’s part. Because of the mistake on my credit report. I have been wrongfully denied credit recently for a <insert credit type for which you were denied here> , which was highly embarrassing and has negatively impacted my lifestyle.
The following information therefore needs to be verified and deleted from the report as soon as possible.
CREDITOR AGENCY, acct. 123-34567-ABC
Please delete the above information as quickly as possible.
Sincerely,
Your Signature
Your Name
SSN# 123-45-6789
Attachment included.
Sample letter 3 Dispute Letter for follow on credit bureau correspondence.
In this letter, and all succeeding correspondence with the credit reporting agency, you need to get increasingly threatening.
Your Name
123 Your Street Address
Your City, ST 01234
Credit Bureau
Credit Bureau Address
Some City, Any State 56789
Date:
Re: DISPUTE LETTER OF DATE YOU SENT IN FIRST OR SUBSEQUENT REQUESTS
Dear Credit Bureau,
This letter is formal notice that you have failed to respond to my dispute letter of date. I sent this letter registered mail and have enclosed a copy of the return receipt which you signed on some date. As you are well aware, federal law requires you to respond within 30 days. It has now been over that period since you receipt of my letter. As you are no doubt aware, failure to comply with federal regulations by credit reporting agencies are in serious violation of the Fair Credit Reporting Act and may be investigated by the FTC. Obviously, I am maintaining detailed records of all my correspondence with you.
I am aware that you may have misplaced my letters or have failed to respond to my letter because of an oversight due to the high volume of the requests you receive daily. If this is the case, I’m sure you’ll want to handle this matter as soon as possible. For this purpose, I have included a copy of my original request, of the credit item you have mistakenly place on my records.
The following information therefore needs to be verified and deleted from the report as soon as possible:
CREDITOR AGENCY, acct. 123-34567-ABC
Please delete this erroneous item from my credit report as soon as possible.
Sincerely,
Your Signature
Your Name
SSN#123-45-6789
Don’t forget to provide copies of your original letter and documentation!
DEBT VALIDATION LETTER TO BE USED AGAINST COLLECTIONS AGENCIES (EXTREMELY RECOMMENDED)
Your Name
Your address
Collection Agency’s Name
Their Address
Date:
Re: Acc# 1234567897 (LIST THE ACCOUNT NUMBER ONLY, NOTHING ELSE)
To Whom It May Concern:
Be advised that this is not a refusal to pay, but a notice send pursuant to the Fair Dept Collection Practices Act, 15 USC 1692g Sec. 809 (b) that your claim is disputed and validation is requested.
This is NOT a request for “verification” or proof of my mailing address, but a request for VALIDATION made pursuant to the above name Tile and Section. I respectfully request that your offices provide me with competent evidence that I have any legal obligation to pay you.
Please provide me with the following:
1. What the money you say I owe is for?
2. Explain and show me how you calculated what you say I owe?
3. Provide me with copies of any papers that show I agreed to pay what you say I owe:
4. Provide a verification or copy of any judgment if applicable:
5. Indentify the original creditor:
6. Prove the statute of Limitations has not expired on this account
7. Show me that you are licensed to collect in my state
8. Provide me with you license numbers and Registered Agent.
At this time I will also inform you that if your offices have reported invalidated information to any of the 3 major Credit Bureau’s (Equifax, Experian or Trans Union) this action might constitute fraud under both Federal and State Laws. Due to this fact, if any negative mark is found on any of my credit reports by your company or the company that you represent I will not hesitate in bringing legal action against you for the following.
1. Violation of the Fair Credit Reporting Act
2. Violation of the Fair Debt Collection Practices Act
3. Defamation of Character
If you offices are able to provide the proper documentation as requested in the following Declaration, I will require at least 30 days to investigate this information and during such time all collection activity must cease and desist.
Also during this validation period, if any action is taken which could be considered detrimental to any of my credit reports, I will consult with my legal counsel for suit. This includes any listing any information to a credit reporting repository that could be inaccurate or invalidated or verifying an account as accurate when in fact there is no provided proof that it is.
If you offices fail to respond to this validation request, within 30 days from the date of your receipt, all references to this account must be deleted and completely removed from my credit file and a copy of such deletion request shall be sent to me immediately.
I would also like to request, in writing, that no telephone contact be made by your offices to my home or to my place of employment. If your offices attempt telephone communication with me, including but not to limited to computer generated calls and calls or correspondence sent to or with any third parties, it will be considered harassment and I will have no choice but to file suit. All future communication with me must be done in writing and sent to the address noted in this letter by USPS.
It would be advisable that you assure that you records are in order before I am forced to take legal action. This is an attempt to correct your records; any information obtained shall be used for that purpose.
Best Regards,
Your Signature
Your Name Printed
Removing inquiries
Removing Inquiries
Prepare letters to each inquiring creditor asking them to remove their inquiry. The Fair Credit Reporting Act allows only authorized inquiries to appear on the consumer credit report. You must challenge whether the inquiring creditor had proper authorization to pull your credit file.
Your letter can go something like this:
Re: Unauthorized Credit Inquiry
Dear America Express,
I recently received a copy of my TRW credit report. The credit report showed a credit inquiry by your company that I don’t not recall authorizing. I understand that you shouldn’t be allowed to put an inquiry on my file unless I have authorized it. Please have this inquiry removed from my credit file because it is making it very difficult for me to acquire credit.
I have sent this letter certified mail because I need your prompt response to this issue. Please be so kind as to forward me documentation that you have had the unauthorized inquiry removed. If you find that I am remiss, and you did have my authorization to inquire into my credit report, then please send me proof of this.
Thank you in advance.
Jane Caveat-Debtor
Motion to Vacate a Judgment
Vacating a Judgment
Did someone file a judgment against you? if they did, there is a chance you can get it dismissed or “vacated”. Vacating a judgment is basically the equivalent of stamping a big fat red “VOID” on the judgment paperwork.
Filing a motion to dismiss a judgment is like filing an appeal on the outcome of a jury trial. If the outcome was not fair, and you have good reason why the court should overturn its prior ruling, you should file motion. Don’t be intimidated by the thought that you are challenging a court ruling, it happens all of the time.
As with many collection agencies, many people who file lawsuits to collect money from you in court didn’t, follow the law. You may be asking yourself why the judge didn’t know about this improper deviation. As in most professions, judges tend to specialize in one type of case. For the same reason that you can’t expect a heart surgeon to know the best psychiatric medications to prescribe to a patient with schizophrenia, a judge doing small claims or injury lawsuits may not be intimately familiar with consumer law. Sure they know the basics, but one person can’t know everything. Before deciding on a case, most judges need to look up and study existing statutes and case rulings. In addition, if the person who sues says they followed the correct procedure and the defendant or his lawyer does not dispute it, it’s a sure bet they were given the benefit of the doubt.
Another thing to look out for even if the person suing you followed all the right court procedures, you can still win on technicalities. The two biggest reasons a judgment is “won “are A) the defendant failed to respond to the court summons with the proper paperwork in the allowed period of time, and B) the defendant failed to appear for their court date. This is calling winning by default. If you missed your court date, you may still not be out of luck.
If you receive a judgment or a writ of restitution and you believe you had a good reason for not responding to the eviction summons or appearing at the “show cause” hearing, there still may be grounds for asking the courts to vacate the judgment. If the court agrees that your may have had a good reason for not responding or appearing, the court may decide to set a hearing on your motion to vacate the judgment.
First some terms:
A judgment is the actual court decision stating that the person suing is in the right. It issues the method to “right the wrong,” such as fines, the actions you need to take to correct the violation or the amount of money you need to pay the plaintiff.
A writ of restitution is generally used only by landlords. It is basically a court order, in writing, that would be given to a sheriff to evict you if your landlord was trying to get you to move based on non-payment. You don’t need to worry about this document if you are not being sued by your landlord.
1. Vacate basically means dismiss.
2. The plaintiff is the person suing you.
3. The defendant is the person being sued (you)
Prepare Your Motion to Vacate
The first thing you should be before preparing a motion to vacate is to look up your states rules of civil procedure. It should spell out exactly what you need to do to file a motion. It will also tell you what reasons are valid, and may include the exact language you need to use. If you don’t follow the procedures, you can get your motion thrown out on a technicality. Here’s a good link:
You must prepare a Motion and Declaration to Vacate Judgment and an Order to Show Cause.
Motion and Declaration to Vacate Judgment
A sample document is included at the end of this article which can be used as a template to write up your motion. This document tells the court why the judgment against you should be vacated. First, you need to identify the case by name and court reference number and all the persons involved in the judgment next, explain your reasons for bringing the motion. State your “procedural defenses,” that is, the good reason(s) why you did not respond to the summons and complaint on time or appear at a “show cause” hearing for example:
1. I responded to the summons and complaint in time, but a judgment was issued anyway without a hearing.
2. I was not able to answer the summons and complaint or appear at the show cause hearing because…
In the same space, also tell the court about your defense to the judgment (why the case would have been dismissed had you shown up in the first place). For example:
1. The collection agency never responded to my request for validation, therefore never providing proof that the debt was mine under the FDCPA.
2. The amount of the debt exceeded the states usury interest limits.
Please note that the court will only respond to violations of existing laws. They won’t accept reasons like: “My insurance company was supposed to pay this debt and never did; therefore I shouldn’t have to pay this medical bill”.
File the Paperwork
Most likely, you will have to file your motion at the same court which granted the judgment in the first place, which means that if the judgment was granted in Anchorage, Alaska, and you now live in Miami, Florida, you will have to fly to Alaska to both file the paperwork and to attend the court trail.
Go to the courthouse with your typed document and tell the court clerk that you are filing a motion to vacate a judgment. There may be additional forms to fill out at the courthouse, and there was probably be a nominal filing fee. The clerk should know exactly what needs to be done with the paperwork. And can answer all of your questions and even help you fill out the forms.
Once your paperwork is in order, the court will notify you of the upcoming court date. The person who originally sued you (the plaintiff in the original suit) will typically have 35 days to respond.
Notify the Original Plaintiff
In some cases, once the paperwork is filed the court will notify the plaintiff and /or plaintiff’s attorney. Be sure to ask if the court will serve notice or if you need to, as serving the notice of summons is crucial to winning your case. If its is your responsibility to serve notice, you can hire a third party professional service company for a nominal fee (typically around $35).
What if They Offer to Settle Out of Court?
Very often the original plaintiff in your lawsuit will come back to you and offer to vacate the judgment, especially if they blatantly flouted the laws in winning the case in the first place and have no proof, say that you were properly served, or that they violated the FDCPA, etc.
If they offer to settle out of court, you should demand that they themselves file paperwork to dismiss the lawsuit. Also demand that they notify any collection agencies they may have hired to collect money and also notify the credit bureaus of the “mistake”. It is also crucial before accepting any settlement offer (in writing, naturally) that they send you copies of any paperwork received from the courts about the judgment vacation or dismissal.
What Happens at Court?
In the best of all possible scenarios, the original plaintiff will not show up for the hearing to dismiss and you will win by default. If this happens, you shouldn’t have to present anything to the court and should receive your dismissal automatically, especially if the original plaintiff never responded in writing to the summons.
In the second best of all possible worlds, they show up to the hearing and are unable to disprove your reason for requesting the dismissal:
1. They are unable to show proper documentation that you were properly served.
2. They are unable to show that the debt was legal in the first place (unable to show what the correct debt amount should be, if a contract existed in the first place, etc).
This means, of course, that you should have good documentation on the case and have it available to present in court.
What Happens when you win?
You should receive a court document showing that the case was dismissed. Send copies of this document to any collection agency that’s contacted you about the case and to the credit bureaus so they will remove any mention of the judgment from your credit report. Even though you demanded that the defendant do this, it only takes a few minutes and a few stamps to insure that it gets done promptly by doing it yourself.
SAMPLE MOTION TO VACATE
Sample Motion to Vacate
IN THE SUPERIOR COURT OF THE STATE OF <YOUR STATE>
IN AND FOR THE COUNTRY OF <YOUR COUNTRY>
<The Original Plaintiff> Plaintiff,
Vs.
<YOU>
Defendant
No. <COURT REFERENCE NUMBER>
MOTION AND DECLARATION TO VACATE JUDGMENT
NOW COMES the Plaintiff, Pro Se and prays this Honorable Court to Deny the Defendant’s Motion to Dismiss and Motion for Sanction for the following reasons:
1. Relief requested. The Defendant(s) move(s) the court for an order vacating the judgment entered in this action and staying enforcement of the writ of restitution until the motion can be heard.
2. Statement of facts and issues. This motion is based on the following grounds: <enter your reasons: you weren’t properly served, the judgment was entered even though you filed the right paperwork>
Dated:
………………………………………………………………………….
Defendant(s) Signature
Defendant(s) Name (Print)
Address
Telephone Number
DECLARATION
I, <my name> declare as follows:
1. I am the defendant in this unlawful detainer action.
2. I request that the judgment entered in this action be vacated for the following reasons: <give your reasons: A the collection agency never responded to my request for validation, therefore never giving any proof that the debt was mine under the FDCPA. B)the amount of the debt exceeded the state’s usury interest limits>
I certify under penalty of perjury under the laws of the state of <YOUR STATE> that the foregoing statement is true.
Signed in (CITY),(STATE),on (DATE)
…………………………………………………………………………
Signature
What if a removed negative item comes back on my credit report?
Ok, you’ve removed a listing and are breathing a deep sigh of relief. Then you get a letter in the mail from a credit bureau telling you the item has been added back on. What happened?
Revivified listings
This is actually becoming more commonplace: since the new credit laws require that the bureaus investigate and resolve your disputes within 30 days, they will sometimes remove the negative information temporarily until they get the information verified as true. Then they will put back any information verified to be true and notify you of this. By law, they can do this, but they have to notify you in writing. However, you can wait 60 days and re-dispute the item again. Make the creditor validate the debt to you by sending you copies of their findings. (Not computer printouts, but actual signatures and contracts, which may be impossible to do) you can use that information to re-dispute your claim to the credit bureaus.
Disclaimer:
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