Assignee of credit card issuer got judgment against my son in 1998 and recorded it in July 1998. Nothing happened for over ten years. In 2010 they filed a motion to garnish his pay, which was the first he knew of the judgment.
I believe they were required to renew the judgment after five or seven years, which would have been 2003 or 2005, which they did not do.
We filed a motion to rescind the garnishment and void the judgment on the grounds that my son was never served in the 1998 case. The plaintiff could not prove that he was ever served, so the final judgment was vacated and the garnishment was vacated. During this process we learned that the court clerk long ago threw out the entire case file.
We made a tactical mistake. We should have asked the court to vacate the garnishment and have the judgment declared expired due to failure to renew in 2003 (or 2005 ?).
The plaintiff filed a new complaint for damages on 5-25-11 under the 1998 case. They are trying to circumvent the SOL on a judgment, that if it were not vacated, could not have been subject to enforcement.
Should they (were they required to) have renewed the 1998 judgment in 2003 or 2005 ?
If they did not renew it in 2003, did it expire irrespective of anything elce ?
Were they required to register a judgment lien certificate with the Florida Secretary of State by 2003 ? If it was required, and they did not register it by 2003, was the judgment void for that reason alone ?
Is it legal for them to file a new charge in 2011 under a 1998 case (that was so old that the clerk threw out the entire case file) ?
Even though they are using a 1998 case number, if they are just now filing a complaint (even if it is a copy of the 1998 complaint), shouldn’t the 2011 complaint be barred by the SOL ?
Isn’t the court’s letting them file a new complaint (in 2011) under the 1998 case giving them an inequitable second bite of the apple ?
Can we file a motion asking the court to refuse to let them file this 2011 complaint under the 1998 case ?
Are we protected by laches ?
Also, haven’t they lost their rights under waiver by not renewing the judgment in 2003 ?
Can we file a motion for summary judgment and is it appropriate ?”
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You certainly have a uncommon set of circumstances in front of you.
A quick look up of Florida rules suggests they needed to renew at the 7 year time frame for domestic judgment (it is 5 years for foreign judgment).
Everything you outlined suggests that they are again trying to access the courts in their collection efforts, but are time barred from doing so. If that is the case, then that would be all that needs to be pointed to. Anything else would just be kitchen sink type stuff.
You should connect with a Florida attorney to verify your best position on the matter. If you can locate one with FDCPA experience (or experience with state collection statutes), all the better. There may be reason to pursue this further than just dismissal.
Best of success in your effort!
Michael Bovee has worked with financially challenged consumers for the past 17 years and is a recognized expert in his field. Michael founded Consumer Recovery Network (CRN) in 2006. CRN offers debt settlement services and educational resources nationwide. He has served as its president since 2006.
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