IN THE MAGISTRATE COURT OF XXX COUNTY

THE STATE OF XXX

 

CREDITOR CAPITAL GROUP LLC    :

Plaintiff,                                                       :

v

XXX                                              : No. XXX

      :

Defendant.

 

MOTION AND DECLARATION TO VACATE JUDGMENT

NOW COMES, the Defendant prays this Honorable Court to vacate the renewal of FIERI FACIAS filed within Seven (7) years from the DEFAULT JUDGMENT was ordered against me on XXX.

  1. Relief requested.
    1. The Defendant moves the court for an order vacating the judgment entered in the above-mentioned action 12-M-18640 and declare any enforcement of the writ of FIERI FACIAS “dormant” until the motion can be heard.
  2. Statement of facts and issues.
    1. This motion is based on the following grounds:
      1. Creditor’s failure to notify the Debtor properly about THE HEARING, especially about the renewal of the lien.
      1. The default judgment was entered even though I had never had any               notice about the hearing.
      1. Thus, I never had any fair chance to defend myself.

After 7 years, the Creditor filed the revival on January 14, 2019, prior to the expiration day on XXXX. While CREDITOR’s judgment is good for seven years, they must take certain action before the expiration of seven years to keep their judgment enforceable.

On January XXX

   

, 8 months prior to the last day of XXX years, there was no record that CREDITOR served his petition to renew the Default Judgment and its respective FIFA pursuant to OCGA § 9-12-60 et seq. CREDITOR failed

petition failed  

to meet the procedural requirements of OCGA § 9-12-63.

OCGA § 9-12-63 provides: A Petition to revive a dormant judgment in the courts must issue from and be returnable to the court of the county in which the judgment was obtained. It shall be directed to all and singular the sheriffs of this state and shall be signed by the clerk of such court who shall make out copies thereof. (There was a signature by Deputy Sheriff but, there was no signature by the clerk. Sign is different from the stamp.) XXX Code

In all cases it shall be the duty of the officer levying attachments to levy them in the order in which they come into his hands, and it shall be his duty to enter upon the same the year, month, day, and hour on which he made the levy. The house was never recorded. Where the levy is upon land, the attachment must be entered on the execution or attachment docket by the clerk of the superior court in order to be good against third persons acting in good faith and without actual .comnotice.

Under the current statute, [a]t the time of filing of record of his claim of lien, the Creditor shall send a copy of the claim of lien by registered or certified mail or statutory overnight delivery to the owner … O.C.G.A. 44-14-361.1(a)(2) (emphasis added). The Creditor had time to travel to the post office that day, failed to do so, failed to send a copy of the lien at the time of filing and, consequently, killed the lien.

The new statute provides, in pertinent part, that no later than two (2) business days after the date the claim of lien is filed of record, the Creditor shall send a true and accurate copy of the claim of lien by registered or certified mail or statutory overnight delivery to the owner of the property or if the owners address cannot be found, the contractor as the agent of the owner.

Creditors filed a claim of lien on or after XXX and failed to send a copy of the claim of lien to the owner or contractor via certified mail (registered mail or statutory overnight delivery) within two (2) business days of filing, the lien is INVALID. (2d ed.), §§ 9-12-62 Form 1; 9-12-63 Form 1.

  1. OCGA § 9-12-60(a) provides in pertinent part: “A judgment shall become dormant

and shall not be enforced ․

Once the party filing the lien has successfully filed suit, there is one final step to perfecting his or her lien: preparing and filing a notice of suit (also known as a notice of commencement of lien action). The notice of suit must be filed in the county where the property is located, be signed under oath, and recite certain required information. If the notice of suit is not filed or does not contain all the required information, the lien becomes invalid. As set forth in O.C.G.A. 44-14-361.1(a)(3) and (4), a notice of suit must contain the following information to be valid: (1) the name of the correct property owner; (2) a legal description of the property liened; (3) the deed book and page number of the lien; and (4) the name of the party who filed suit, where they filed suit, the style of the suit filed, the number of the suit filed, and the date the suit was filed. Since at least one of the above requirements was not performed, then the notice of suit is invalid and the lien should become invalid.

The new lien statute (effective XXX changes the time period for filing the notice from fourteen (14) days to thirty (30) days, XXX.

C. Definitional Clarification: The Lien Action

Under the recently enacted lien statutes (effective XXX) a lien action has been defined. O.C.G.A. 44-14-360(2.1) The Plaintiff also needs to verify if a contract contains an arbitration clause, the lien holder likely should err on the side of caution and file a lawsuit, file the notice of suit, and then stay the action.

 
  DECLARATION   I, Sang Lee,  declare as follows:1. I am the defendant, Debtor, in this debt collection civil action.   2. I request that the judgment entered in this action be vacated for the following reasons:   the collection agency never responded to my request for validation, therefore never giving any proof that the debt was mine under the Fair Debt Collection Practices Act (FDCPA)The Statement of Claim was not served properly to the Defendant.   The Service of Process was not perfected correctly.   I never had any notice about the trail or hearing. I certify under penalty of perjury under the laws of the state of Georgia that the foregoing statement is true. Signed in Suwanee, Georgia May 21, 2021            

T                                                                                                                                                                  

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