By John DiMotto
When people think of court cases, two types jump out; high profile criminal cases and big money civil cases. O.J. Simpson and the "McDonald's coffee case" are the examples of what immediately come to mind. However, these cases are the exception, not the rule. In the arena of civil cases, many people find themselves embroiled in a lawsuit when they don't pay their credit card bills. When this happens, the credit card company, or a business who buys the cc company's debt, will file a civil lawsuit seeking a money judgment. These cases are so prevalent that in they have their own "case code" - so their numbers can be tracked.
A Money Judgment action is commenced like any other civil case. The plaintiff files the complaint and then has 90 days to serve the complaint upon the defendant. If the plaintiff is unable to personally serve the defendant, it can be served via publication. So many of the defendants in these cases move so often that they cannot be personally served and publication become "the rule as opposed to the exception." After the complaint has been served, the defendant ordinarily has 20 days (or 40 days if service was via publication) to file an answer. If no answer if filed, the plaintiff files paperwork for a default judgment. In order to obtain a default judgment, the court must be satisfied that the plaintiff has complied with all of its statutory and case law duties. The plaintiff must submit proof of service; an affidavit that the defendant has not filed an answer; an affidavit the the defendant is not in the active military (this status can prevent the action from proceeding during that timeframe); proof of the debt and the amount owed. The court must also be satisfied that the complaint complies with the Wisconsin Consumer Act. If the plaintiff is the creditor, the complaint must have attached to it all of the records supporting the amount of debt claimed. If the plaintiff is not the creditor but an entity which purchased the debt from the creditor, the supporting documents do not have to be attached but must be provided if requested by the defendant.
It is incumbent on the judge to carefully review all of the plaintiff's submissions to make sure the plaintiff is entitled to judgment. The biggest issue is whether proper service of the complaint was made. Due diligence to personally serve the complaint is necessary before publication can be used. This is because most people do not read the legal newspaper in which publications are done. In Milwaukee, that paper is the Daily Reporter. Most people have never heard of it but it is THE publication used.
If no answer has been filed and the paperwork is in order, the court will sign an order for judgment, the clerk of circuit court, based on the order for judgment, will sign a judgment and the plaintiff can then docket the judgment and seek to collect it. With respect to these money judgment cases, the amount of the judgment is usually very great because of the high interest rates with these credit cards. It is not unusual that the interest rate is close to 30%. This is because usury laws were done away with in the 1970's when consumer laws were put in place.
I usually spend at least one hour per week going over the paperwork submitted seeking default judgments in money judgment cases and there are at least a handful that I set for a hearing because of defects in the paperwork that must be addressed. Before I grant a default judgment, I must be satisfied that the plaintiff is not only entitled to the judgment substantively but also procedurally.
In my next post, I will examine another common civil action.