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Kirschenbaum & Phillips Judgment Vacated and Dismissed

We were contacted by a consumer who was worried that he would have his wages garnished because of an old default judgment against him. EMCC, a debt buyer had obtained a default judgment against our client back in 2007 through the debt collection law firm of Mel S. Harris and Associates. Before Mel S. Harris was officially taken over by Stephen Einstein and Associates, EMCC transferred this judgment to Kirschenbaum & Phillips another debt collection law firm that handles many of these cases. A judgment had been entered against the client on default as he was never served. He adamantly denied ever receiving notice of the summons and complaint or having any knowledge of the case until he was served by a city marshal with a notice of wage execution.

We contacted Kirschenbaum & Phillips and gave them the opportunity to voluntarily vacate the judgment against our client but they did not comply. Then we filed a motion to vacate the judgment against our client due to the improper service of process. We also asked the court to dismiss this case against our client as we believe that EMCC as a debt buyer cannot prove that they have standing or are the rightful owner of the debt. The judge ordered a traverse hearing after having heard our motion which helps decide whether the consumer was properly served by allowing both parties to question the testifying process server. After a quick search, we learned that the process server in this case had so many violations for sewer service that his license was revoked by New York State. Kirschenbaum attempted to drag the case out by adjourning the matter as a part of their stall tactics. As the process server never appeared, likely because he would be embarrassed to testify about his record of service, the Judge vacated the judgment and dismissed the EMCC action against our client.

Categories: Debt Defense
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