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service that his license was revoked by New York State.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.