Weird summary judgment...what to do now?

[Colorado Belle]

What is the name of your state (only U.S. law)? Co.

I had a debt collector file a suit in county court, stating that I owed an accounting firm money. He asked for summary judgment and tho I replied that this was out of the SOL AND that I had paid my debt in full in 2003 (the debt was supposedly from 2004)..the judge granted it. The judge said some weird things in his orders which made me go to the court to find a copy of a supposed contract that I had with the original creditor. The contract was not in my name nor signed by me!!!!! So I asked for reconsideration; but that was denied.

Now, the debt collector has garnished my bank account. My first question is:
is alimony exempt from garnishment in Colorado. (I've been told it is, but I can't find anything in the statutes specifically exempting it.)

More importantly, the only appeal I had was from county to district court. In order to appeal I had to put up all the money from the judgment ($8000). I don't have that money and asked the judge for a lesser 'bond' to appeal. No answer. Something is jiggy with this whole thing: I don't owe the money, the contract was either fraudulent or inadvertently not mine. (My contract with that firm did NOT specify any damages should I not pay...I think because I didn't get the service until after I paid for it) , the SOL was really expired...and there were a kajillion questions of fact so summary judgment should never have been granted: So since I can't get relief from appeal, can I sue the debt collector for fraudulently suing without any valid contract with my signature or name on it? If so, what kind of suit is this? A tort action?

 

[ecmst12]

You definitely need a lawyer.

 

[tranquility]

The time to deal with "jiggy" things is in the case in chief or in your response to the motion for summary judgment. Did you make the arguments in your response? For fact issues, appeals are an abuse of discretion standard, which is rarely granted. What legal issues did the court decide incorrectly?

 

[Colorado Belle]

I based my response on 1..A motion to dismiss because the suit was brought out of the 3 year SOL for open accounts/contracts for service. I further responded that the debt wasn't mine, showed that I had paid in full for the services rendered me in 2003. I complicated things by stating that I knew that the accounting firm had consulted with my attorney a year later (the attorney wanted to get a new business valuation; I made sure that both attorney and accountant knew that this would be done contracturally between them), and that I knew that the attorney had included the business valuation bills in with his total to the court for reimbursement by X @ 75%. (( had already paid my 25% up front). I said that my attonrey from back then should have paid the accountant for any fees in late 2004 by the contract between them.

The judge said that the SOL was extended to 6 years because the contract was liquidated...well that isn't true in the least. He also said that I had in my original contract 'allowed' my husband and my lawyers to deal with the accountant under the contract terms ...THAT's when I knew something was up because my letter of engagement with that firm only said it would provide me with a business valuation, period. I had never rec'd a copy of the contract submitted to court ....went to courthouse and found that the contract submitted was in someone else's name, address, and named their attorney (or husband) not clear...anyhow, none of the info related to me. So the debt collector didn't even have a contract. So, the debt plus interest plus attorney fees was based on this contract that wasn't mine. (Still, it didn't have any 'liquidated damages' clause and could not have extended the SOL for that person either.

I asked for a reconsideration based on finding that the contract wasn't mine.
Denied.

I know about appeals and discretion of judges. One can only appeal county court to district court and I wouldn't win there anyway, even if I could put up the $8000 .) I didn't ask for advice about appealing. I asked if alimony was exempt from garnishment and if I could sue the dbt collector for submitting a fraudulent contract.

 

[tranquility]

The judge said that the SOL was extended to 6 years because the contract was liquidated...well that isn't true in the least.

If by liquidated you mean a note with exact amounts was prepared and agreed to, then it is true.

I based my response on 1..A motion to dismiss because the suit was brought out of the 3 year SOL for open accounts/contracts for service. I further responded that the debt wasn't mine, showed that I had paid in full for the services rendered me in 2003. I complicated things by stating that I knew that the accounting firm had consulted with my attorney a year later (the attorney wanted to get a new business valuation; I made sure that both attorney and accountant knew that this would be done contracturally between them), and that I knew that the attorney had included the business valuation bills in with his total to the court for reimbursement by X @ 75%. (( had already paid my 25% up front). I said that my attonrey from back then should have paid the accountant for any fees in late 2004 by the contract between them.

Facutal arguements which should be in case in chief. Did you introduce *any* evidence in your response (including an afidavit from you) which made these factual issues in play?

He also said that I had in my original contract 'allowed' my husband and my lawyers to deal with the accountant under the contract terms ...THAT's when I knew something was up because my letter of engagement with that firm only said it would provide me with a business valuation, period. I had never rec'd a copy of the contract submitted to court ....went to courthouse and found that the contract submitted was in someone else's name, address, and named their attorney (or husband) not clear...anyhow, none of the info related to me. So the debt collector didn't even have a contract. So, the debt plus interest plus attorney fees was based on this contract that wasn't mine.

Factual, case in chief or in evidence in response to the motion. Did you submit such evidence?

I asked for a reconsideration based on finding that the contract wasn't mine.
Denied.

Irrelevant. The factual finding would be the appeal issue if it was an abuse of discretion. I'm not seeing the evidence you presented yet, so, without proper presentation of your side there cannot be abuse.

I asked if alimony was exempt from garnishment and if I could sue the dbt collector for submitting a fraudulent contract.

You cannot sue, you lost. The contract is valid by court decision. Alimony is not exempt, the amounts could be.

 

[Colorado Belle]

Hi Tranquility,
Re liquidated: there was no note. The letter of engagement that the debt collector submitted into evidence was for another person(that had a different name, address and someone else's signature)was not the same as the letter I had with the company in 2003. Neither specified any payment plan except billing at various hourly rates differing for various individuals services and stated that these rates could change at any time. I did several hours of legal research on what could fall under the exception and this wasn't one of them.

Re evidence: Yes,l entered my affidavit. Since this was back in 2004 I had no witnesses but I did have letters from me to both the original creditor stating that with this last payment our bidness is done...and a letter stating that he should contract with my lawyer if there were to be any future services provided should my divorce proceed to trial.

A lawyer has posed the jurisdictional question of whether, in Colorado, a county court can issue summary judgment. He says not, but I don't see anything in the statutes specific to this. The judge did say in his order that it was unusual, but that we both requested it of him...that is not true as I objected in the evidence several times to the motion for summary judgment.

Finally, I wsn't planning on suing the judge (tho I wish I could) . I'd like to sue the debt collector for entering fraudulent information (the contract ) into evidence and misleading the judge into thinking it was mine. The FDCPA says that a debt collector cannot give false info about the debt. That was the only evidence of debt he had except for an affidavit from the original creditor saying that the debt was mine because he provided it to a lawyer that was representing me. (But again, no contract of any engagement and certianly none that would allow him to provide services a full year after our b usiness was complete.

I filed a timely notice of appeal of this issue, and asked the judge to send me a signed order since that is what is needed in the Colorado Appellate Courts. I also asked for a reduction in bond seeing as I am a senior on fixed income. Altho I was mailed a signed order, no one answered the question of bond so I didn't send any....and now, my time limit for paying it might have expired.

Thank you for your help.

 

[tranquility]

You cannot sue, you lost.

Appeal for the legal issues violated. You should include the factual issues as well. The letters submitted are probably not "evidence" as they are hearsay. Depending on the state statues or actual issues, they may not be hearsay or an exception to hearsay, but I'm not sure without research or a look at the actual facts.

 

[ecmst12]

Which is why you should have involved a lawyer from the start instead of trying to do it yourself and bungling it up.

 

[Colorado Belle]

Thanks, tranquility, You've offered good advice and it is much appreciated.

ecm: Has anyone ever mentioned that you're responses are unhelpful and rather obnoxious? Surely, I couldn't be the first to notice? Perhaps you could have done better, but I think not.

I've had quite a few attorneys as the result of my divorce. (Two actually reviewed my submissions re this problem and claimed they were better researched and written than what they could have done. I also appealed my property settlement with an appellate attorney who had me write several aspects of the appeal. Those were the only aspects that won. Probably just beginner's luck of course.
While it is true that a recognized by judge attorney will hold more sway in presentations, sometimes there are other issues at play. My case was well presented, documented and with sound basis in the law. As a result of appealing the property settlement in my divorce, the good ole boys system here deemed me 'an outcast, a personna non grata' . I was told by the judge that I'd never win any motion in his court and that's been the case since 2005. Just holding on until he retires.

 

[latigo]

No, you cannot bring a separate lawsuit against the debt collector that recovered the summary judgment.

That would amount to a collateral attack on the judgment and is not permissible. All your defenses - known to you at the time or which could have been discovered with reasonable effort - had to be raised in the original case.

If otherwise, successive lawsuits over the same subject matter could go on indefinitely

Your only recourse is a timely appeal from the summary judgment order.

Once your rights of appeal have run or you reach the end of the appellate line, the ruling becomes "res adjudicata" - meaning the thing has been settled for all time.

You need to speak with a trial attorney and before the time to appeal runs.
It sounds like you got sandbagged.

Good luck

Sax

 

[VeronicaLodge]

i find ECMS posts and responses to be very helpful and accurate. sorry it wasn't what you wanted to hear.