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Questions for WhyChat Judgements
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Posted by DDF (66.73.3.151) on March 31, 2003 at 00:08:06:
Original Post http://www.cardreport.com/wwwboard27/messages/22509.html
From Michigan, repo was done in Aug 1999. Think I was pretty much late from day one! As I lost my job in early sept 1998, opened account in begin of Aug 98. No def notice, was not allowed to obtain my personal property, (car seat, stroller, clothes, cd's), they kept my plates, MI law states plates stay with debtor. Sold to asset from what I can tell in 3-01, they got default judement in March 2002. Garnishment in May 2002. Lost my job in June 2002, still not back to work. Tried for installment payments, was denied last month. You suggested that the judgement should be vacated. I agree, but am looking for evidence that this is so before paying an attny! Don't need to be out more money. Was trying to settle, person whom I was working out settlement with at asset acceptance I am now told is no longer there! surprise surprise!! I have searched and read and re-read the ucc for michian, and the mi state laws on installment contracts.
Tell me if these would constitute Retail Installment Sale Contract. I found this in searching for security interest, as the contract does state that I am giving creditor security interest by having them on the title to car.
2) If the underlying transaction is a sale of accounts, chattel paper, payment intangibles, or promissory notes, the debtor is not entitled to any surplus, and the obligor is not liable for any deficiency. Ok, now, you mentioned that the time for judgement on deficiency is 2 years under ucc, but I found this:
440.2725 Statute of limitations in contracts for sale; contractual reduction.
Sec. 2725. (1) An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than 1 year but may not extend it.
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warrant explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.
(3) Where an action commenced within the time limited by subsection (1) is so terminated as to leave available a remedy by another action for the same breach such other action may be commenced after the expiration of the time limited and within 6 months after the termination of the first action unless the termination resulted from voluntary discontinuance or from dismissal for failure or neglect to prosecute.
(4) This section does not alter the law on tolling of the statute of limitations nor does it apply to causes of action which have accrued before this act becomes effective I found under the security interest sections somewhere in sales contracts, that time for action on breach is one year. This is just too confusing to figure out. My question is this, which law would I follow? UCC Sales, UCC Security interest, or Michigan Compiled Law under installments? What is it I will need to tell an attny to get him to help me vacate the judgement? I am working on a letter to send to HAF for all accounts on this vehicle, I copied your letter from a post earlier last week and modified to fit my needs. I am sure HAF will not respond though. They are just as bad as Asset. Few more things reguarding this acct. Don't know if these might help my fight at all, but everything is worth a shot now!
First is, the contract does not state HAF at all, it says GMAC flexible finance plan. With Zubor Buick, Inc. on creditors signiture.
Second, I have two contracts, one dates July 31, 1998, the second dated Aug 6, 1998.
Now, I know I read in MI Comp laws that two contracts are not allowed, and the creditor may not force debtor to sign second contract. I wonder if this law might allow me to state that they made me sign, I knew I was going to lose the job, they said its too late for me to back out.
Third thing, I have read that you have to get a judgement vacated within one year, and that if i had a chance to go to court an state my case already and didnt show, its pretty much too bad for me. Of course, I didnt show for being so scared of what might happen to me and not knowing what my rights were.
Any advice or insite on how to handle any of the above?
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