Improper service - default judgment granted anyway

[2fightback]

Hi all:

It's been a few months, but I'm back with a new case. Last December I returned home from my usual weekend business trip only to find a summons tucked under my front door mat. The process server had left a voice mail message on my home phone (I believe I have it saved still) that said she saw me looking through the window and that since I refused service, she was able to leave it on my doorstep. After checking over the summons, I realized she was from the Denver area (180 miles away), it was snowing profusely that weekend, and obviously she didn't want to spend the night and try to catch me at home. So, she blatantly lied. I went to court and filed my answer by the deadline and detailed the improper service and attached proof of my whereabouts (hotel receipts, gas receipts, etc.) which clearly showed that I was 250 miles from home the day the process server left my summons. I never heard another word. I assumed everything magically went away and that they would have to start from scratch again (have me re-served, re-file, etc.).

Yesterday I get a phone call at work and the attorney claimed that they had a judgment and wanted to know if I was going to cooperate in paying it. I was totally shock and asked the who's/if's, etc., to which he responded that they had obtained a default judgment in February. After telling him he would hear from my attorney and hanging up on the jerk, I immediately verified it with the court. Yep, they sure as heck did have a judgment filed against me.

I am extremely upset, as they never sent me ANYTHING via mail.....no notices, copies of motions, NOTHING. I never had a clue the judgment was granted. So obviously they are playing a dirty little game of deceit with the court and I'd like to to know what my options are from this point. It looks like the attorney filed some sort of "affidavit" and "motion for default judgment" seven days after I filed my answer with the court. As I said, I never received copies of any of this stuff.....I just pulled up the case history on the court's website. I will go to the court house tomorrow and ask for copies of the whole file.

It sounds like from reading through some other posts that I need to file a motion to vacate the judgment right away. Do I need to do anything else, and what happens from here? Does the whole case start over, or can they simply ask for an amended summons, etc.? Also, am I entitled to counter-sue them and/or ask for sanctions? Any help would be greatly appreciated! I have left two messages for a local attorney and he's not calling me back. If this is pretty complicated, I definitely would like to find a good lawyer in the Denver area, so if anyone has a name, please feel free to advise.

This is an old Palisades Collection account that is being handled by a Denver attorney. Last payment was over three years ago, however Colorado has yet to have any case law in support of a 3-year SOL, although the statutes imply that.



Thanks!

[ualbany18]

I'm soooo confused, if you filed an answer with the court how was their a default judgment against you?

[nascar]

Perhaps a misuse of terms, but I agree. Default judgment is improper.

[ualbany18]

It's been a few months, but I'm back with a new case. Last December I returned home from my usual weekend business trip only to find a summons tucked under my front door mat. The process server had left a voice mail message on my home phone (I believe I have it saved still) that said she saw me looking through the window and that since I refused service, she was able to leave it on my doorstep.





Now people on this forum have disagreed with me on this next part, but you were notified of the summons and you did make an appearance in the action by filing the answer, that is very likely in my opinion the equivalent of accepting service.

[merrybucks]

you did make an appearance in the action by filing the answer, that is very likely in my opinion the equivalent of accepting service.
I would have to agree, however, that doesn't explain why a judgment was granted. The OP needs to see what was filed with the court.

[ditaloca]

Did you file a motion to quash?

How did you answer the summons?

[2fightback]

To clarify, I did not appear before a Judge. I filed my answer by the due date, and made sure I proved that I was improperly served. This same thing happened to me once before a couple years ago and the Judge made the plaintiff start all over. I assumed that the same thing would need to happen again. I was obviously wrong :(

I did also include in my answer the usual defenses, etc.

I printed out the case history from the court's website and here's exactly the time line that is shown:
12/16/08: summons & complaint filed
12/16/08: return of service
01/23/09: answer filed - defendant
01/30/09: affidavit - attorney
01/30/09: motion for default judgment - attorney
01/30/09: proposed order - e-file only
01/30/09: affidavit - attorney
02/16/09: case closed
02/16/09: order
02/16/09: default judgment; status: unsatisfied
Then it goes on to list attorney's fees, an outrageous amount of interest, etc.

As I said before, I never received copies of ANY of the above aside from the original summons/complaint. I never heard or knew of any of this until the phone call I received a couple days ago informing me of the judgment.

I have not yet filed a motion to quash, nor have I had time to go to the court house to get copies of the entire file. I should be able to sneak out of work tomorrow to get that part done. By the way, the attorney for Palisades is Jacques Machol, III who seems to be linked somehow to Harvest Credit Management and appears to be very shady. I know that by law I should have been copied on each and every document they submitted, but I was most certainly not. Of course it will be a case of "he said, she said". They will not have any "proof" of sending said items, but I'm sure they'll come up with bogus docs that say they did.

[newryman]

Are you telling us that you answered the complaint by way of a defence of improper service alone then did not turn up at the court hearing?

[2fightback]

Are you telling us that you answered the complaint by way of a defence of improper service alone then did not turn up at the court hearing?

Yes. The summons clearly states that the defendant should file the answer on OR BEFORE the appearance date, which I did. I then thought that the court via the plaintiff would need to set the matter for a pre-trial conference, etc. Did I miss something here? I've been through a few of these in recent years and to the best of my knowledge, I only appeared in person once on the date listed on the summons, but filed my answers before-hand and waited for the next step on another couple of cases.

Our court here operates under the simplified rules as a side note.

Thanks.

[newryman]

I am not familiar with CO rules but I would not waste any time getting a motion to vacate filed and if that fails an appeal. A consultation with a local attorney would seem to be a wise move if only to check on the procedural issues.

Good luck.

[nascar]

I printed out the case history from the court's website and here's exactly the time line that is shown:
12/16/08: summons & complaint filed
12/16/08: return of service
01/23/09: answer filed - defendant
01/30/09: affidavit - attorney
01/30/09: motion for default judgment - attorney
01/30/09: proposed order - e-file only
01/30/09: affidavit - attorney
02/16/09: case closed
02/16/09: order
02/16/09: default judgment; status: unsatisfied

Rule 12(a), A defendant shall file his answer or other response within twenty days after the service of the summons and complaint on him.

According to your printout, your answer was due on January 5, 2009. It was not filed until 1/23 ...

I can see why the judgment was entered against you now.

[2fightback]

Rule 12(a), A defendant shall file his answer or other response within twenty days after the service of the summons and complaint on him.

According to your printout, your answer was due on January 5, 2009. It was not filed until 1/23 ...

I can see why the judgment was entered against you now.

Ok, well that explains why the attorney was able to proceed and got the Judge to issue the default judgment. BUT.....if I wasn't served properly in the first place (as in not at all and I can prove that beyond a reasonable doubt), what, if anything, can I do now :?:

[2fightback]

Now wait a minute, now that I look at the dates, they're claiming that they filed the summons/complaint on the same day that I was served? I know for a fact they did the bogus service on a Sunday, not a Tuesday.

Looking at the court's online record further, the dates I posted earlier were under a section titled "Proceedings". I see now that they have listed the below two other dates under a different section titled "Scheduled Events":

01/27/09: Return date on summons - status: party failed to appear
02/24/09: Case review - status: vacated

What does all this mean now? Am I totally screwed and need to negotiate a cash settlement and deletion with them, or do I hire a really good attorney?

[newryman]

Now wait a minute, now that I look at the dates, they're claiming that they filed the summons/complaint on the same day that I was served? I know for a fact they did the bogus service on a Sunday, not a Tuesday.

Looking at the court's online record further, the dates I posted earlier were under a section titled "Proceedings". I see now that they have listed the below two other dates under a different section titled "Scheduled Events":

01/27/09: Return date on summons - status: party failed to appear
02/24/09: Case review - status: vacated

What does all this mean now? Am I totally screwed and need to negotiate a cash settlement and deletion with them, or do I hire a really good attorney?

A consultation at least with an attorney would be a good investment to find out exactly where you stand in your state. I am not aware of many CO posters but there are one or two. Perhaps they will see it and be able to help more. But if you filed your answer late then you have difficulties that may or may not be something you can overcome in your State. Sorry that I can not be more helpful.

[ditaloca]

http://caipnj.blogspot.com/2008_05_01_archive.html

BOSTON – Today, a Suffolk County Grand Jury returned indictments against a Beverlyman for allegedly stealing millions of dollars worth of excise taxes from the City of dollars worth of excise taxes from the City of Boston. Stephen Colahan, age 53, of Beverly, is charged with Larceny over $250 by Continuous Scheme and Procurement Fraud.


If a person to be served refuses to accept a copy of the process, service shall be sufficient if the person serving the process knows or has reason to identify the person who refuses to be served.


http://caipnj.blogspot.com/2007/10/nj-default-judgements-proof-of-service.html

These Motions are specifically to enforce the Default Judgements that these bottom-feeder Collection Agencies & Attorneys get even though the person being sued was never even notified of the case; (how's that for Due Process.)

CODE OF CIVIL PROCEDURE

In colorado these are the rules

Process may be served inside or outside this state by the sheriff of the county where the service is made, or by a deputy, or by any other person over the age of eighteen years, not a party to the action.

Upon a natural person over the age of eighteen years by delivering a copy or copies thereof at the person’s usual place of abode, with any person over the age of eighteen years who is a member of the person’s family, or at the person’s usual place of business, with the person’s secretary, bookkeeper, manager, or chief ; or by delivering a copy to an agent authorized by appointment or by law to receive service of process; clerk; or by delivering a copy to an agent authorized by appointment or by law to receive service of process

Upon a natural person, between the ages of thirteen years and eighteen years, by delivering a copy thereof to the person and another copy thereof to the person’s father, mother, or guardian, or if there be none in the state the person in whose care or control the person may be.

Other

Service by mail or publication shall be allowed only in actions affecting specific property or status or other proceedings in rem. The party desiring service of process by publication or mail shall file a motion verified by the oath of such party or of someone in the party’s behalf for an order of service by mail or publication. It shall state the facts authorizing such service, and shall show the efforts, if any, that hav been made to obtain personal service and shall give the address, or last known address, of each person to be served or shall state that the address and last known address are unknown.

The court shall hear the motion ex parte and, if satisfied that due diligence has been used to obtain personal service or that efforts to obtain the same would have been to no avail. shall, Order the clerk to send by registered or certified mail a copy of the process addressed to such person at such address, requesting a return receipt signed by the addressee only. Such service shall be complete on the date of the filing of the clerk’s proof thereof, together with such return receipt attached there to signed by such addressee,.

Order publication of the process in a newspaper published in the county in which the action is pending. Such publication shall be made for four weeks. Within fifteen days after the order the clerk shall mail a copy of the process to each person whose address or last known address has been stated in the motion. Service shall be complete on the day of the last publication. If no newspaper is published in the county, the court shall designate one in some adjoining county.

Matter of proof

If served in a state or territory of the United States by a sheriff or United States marshal, or a deputy, by such person’s certificate with a statement as to date, place, and manner of service; If by any other person, by the person’s affidavit thereof, with the same statement
If by mail, by the certificate of the clerk showing the date of the mailing, and the date the clerk received the return receipt. . If by publication, by the affidavit of publication together with the certificate of the clerk as to the together mailing of copy of the process where required
By the written admission or waiver of service by the person or persons to be served, duly acknowledged

Service: When Required Except as otherwise provided in these rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance demand, offer of judgment designation of record on appeal and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.

Go to court and see what the process server put on their affidavit, make sure they have proof of matter, and completed the due diligence proceedures

[ditaloca]

he prThe process server had left a voice mail message on my home phone (I believe I have it saved still) that said she saw me looking through the window and that since I refused service, she was able to leave it on my doorstep.


Well as it stands that wouldn't be proper service at all, there were several different ways she could have done it but what she did was not legal.

"by leaving a copy or copies thereof at the person’s usual place of abode with any person over the age of eighteen years who is a member of the person’s family"

She needed to leave it with a person.

If she claims you were hiding you will show that you werent home, you were traveling.
If she claims well I saw someone, then you'll have to prove noone was at your home, if you are married and wife was home you can argue that your wife is clearly not male and makes the affidavit at a minimum suspicious.

You really need to get a copy of the proof of service affidavit.


Also her due diligence was not fulfilled if no attempt was mafe at yr place of work or contacting you via publication or mail.
She can't claim the debtor was intentionaly avoiding the served after making only one attempt.
So not only did she lie she also didn't follow proceedure.


Your law in co says
"If a person to be served refuses to accept a copy of the process, service shall be sufficient if the person serving the process knows or has reason to identify the person who efuses to be served"

So if she was telling the truth you could have been considered served.
But what I can't understand is how a judge looked at the process servers affidavit of service (provided she told the truth about everything except "seeing you") and felt she had met the due diligence requirement, or followed proceedure.

[ben1381]

Either your failure to appear in court was considered a "default" or the other side asked for "summary judgment" I would think. You need to look at the file and take appropriate action based on what is in the file. The other posters in this thread also have good ideas! Follow them!

[nene456]

I think that you should file for a traverse. This will give you a chance to be heard by the judge.