Unethical Default Judgment - Do I file Motion to Dismiss or Set Aside?

[2fightback]

Hi all:

I posted a few weeks back about a scumbag attorney who hired a process server from 200 miles who lied and said I was at home and refused service, so she left the summons on my front porch. Of course I filed an answer on time and listed as one of my defenses the improper service.

I thought everything would reset, as in they would have to have me re-served properly, they would obtain a new court date, etc. I was wrong.....they went through the whole thing without ever sending me copies of any motions, orders, affidavits, etc. A few weeks ago, I learned of a default judgment. I was just served with notice of wage garnishment a couple days ago. So, I've tried finding a good attorney and am hoping somebody will call me back. In the meantime, I feel like I need to at least file a "Request to Set Aside Default Judgment" so that these scumbags don't latch on to my bank account. My question is, Colorado shows a "Request to Set Aside/Dismiss Judgment" form on the court's website. Do I want set aside the judgment, or do I go for a dismissal? I think if I do the set aside, it gives me a chance to explain why the default judgment should not have been granted in the first place and buy me some time to find a good attorney. Does anyone think differently?

Thanks!

[unusualsuspect]

File a motion to set aside the judgment. Without knowing too much more, that's probably the only leg you've got.


To go for a dismissal, you need to know if you were filed in the correct venue. Was your case filed in the correct venue? If not, that's also grounds to have a case dismissed.

I'd also look into filing suit against the process server. If they served you incorrectly, their misrepresentation damaged you (in the form of the money judgment, garnishment, drop in credit score, emotional distress or all of them).

[2fightback]

I went to the court house and had them copy all items in the case file. Despite my answer and motion to dismiss that I filed which clearly challenged the validity of service, the Plaintiff filed a motion for default judgment. I never received a copy of this, or ANY thing else.

The process server clearly lied and stated that "I saw debtor in her house walking around; she refused to open the door. I then called the debtor's home telephone and could hear it ring outisde. The debtor answered and when I told her I was outside, she hung up on me. I called back and left a message and told her that I left the summons on the front porch as she refused service." This was a blatant lie as nobody was home and we were over 200 miles away that day.

So, I prepared a "Request to Set Aside Default Judgment", but the clerk kind of talked me out of it. She said that the Judge probably wouldn't sign it, as it really doesn't address all of the issues and will not stop the wage garnishment. She strongly urged me to hire an attorney. I am in a very rural area and there absolutely no attorneys that will take my case. Any advice? I need to nip this in the butt immediately before they start looking for assets.

Thanks~

[unusualsuspect]

The process server clearly lied and stated that "I saw debtor in her house walking around; she refused to open the door. I then called the debtor's home telephone and could hear it ring outisde. The debtor answered and when I told her I was outside, she hung up on me. I called back and left a message and told her that I left the summons on the front porch as she refused service." This was a blatant lie as nobody was home and we were over 200 miles away that day.


Well there's a couple of ways I'd approach this (choose the one that you'd be most comfortable doing):

1. Motion to quash service. If you have any documentation that you were 200 miles away, include it as an exhibit (receipts, plane tickets, etc). This will undo the "service" on the case, which makes the judgment moot - which should stop the wage garnishment.

2. Motion to Vacate Judgment. Here you lay out why judgment should be set aside (improper service) and ask in the motion to stay the wage garnishment.

----I'd file both just to be on the safe side---

3. Sue the process server (my personal favorite). Sue them for 3x's the amount you were sued for. Their illegal and unethical action (filing false papers with the court) caused you to suffer a judgment and wage garnishment, compromising physical and emotional well-being. If you go this route, the server's bonding co will offer a settlement and as part of it, ask that they pay the judgment and that the server's bond be canceled - putting them out of work.

4. In addition to #3, file a complaint with the court or AG regarding the server's action. If an investigation can show they filed false papers with the court, the server could face criminal charges.



So, I prepared a "Request to Set Aside Default Judgment", but the clerk kind of talked me out of it.

Did the clerk just give legal advice? I'd mention somewhere that too.


She said that the Judge probably wouldn't sign it, as it really doesn't address all of the issues and will not stop the wage garnishment. She strongly urged me to hire an attorney. I am in a very rural area and there absolutely no attorneys that will take my case. Any advice? I need to nip this in the butt immediately before they start looking for assets.


How does the clerk know how the judge will rule. If you make a compelling enough argument the judge will rule in your favor. You won't know until you file.

///
Yes, if you feel this is too much for you to handle, then yes by all means, get an attorney.

But file the motions anyway and see what happens. You will never know until you do it.

[lisa2]

Hello,
I am in a similar situation. I received a letter about a default judgment in WA state. The service was not proper: they say that my ex-husband took the documents - however we have been divorced since 2003. I live alone with my 20-year old son and we were not served any document. I found an old summons from 2007 on my door one day in August, with no attachments, and I thought that it was a neighbor who put it there, and since it was so dirty, I thought this had been there for a while, and was out dated. There was no indication of an August 2009 court date.
I could use the methods recommended above to sue the service company and either a motion to quash service or vacate judgment.
I would like to know:
1) would a copy of divorce documents be sufficient - and is there a way of keeping these confidential?
2) I do owe these $795 for a payday loan. Can I just send the $795 to the original creditor and then explain in my motion to vacate judgment that the debt is paid, therefore there is no reason to reconsider this case - in the case they try to
refile it?

Thank you in advance for any help.

[soveu38]

Go for it and I totally agree with ususalsuspect 100% sue the process servers some of them are just like the cockroaches Jdb

Earlier this year I filed a mtn to vacate a judgment which was defaulted against me in :2008 the process server lied and said stated he served me I used improper service to contest the default judgment

The process server did not appear in court it was a small claims action I stated before the court:

A. If I had been home I would have taken the documents but I work out of the city I live in and was not home during the time the proc srvr inidicated

B. I did not find any documents on my door steps or I would have showed up for the court action

c. And I kept my grounds on my not being served I even attacked the proof of service where in some cases process servers put a description of the party served mine had no information at all.

[unusualsuspect]

Lisa--

Sorry you're probably out of luck... there is a narrow window in which you can try to have a judgment set aside. In CA, it's 6 months- after that it's set in stone for 10 years.

As far as your situation, I'd try to see if you can negotiate a lower amount. Judgments can be negotiated for less than they are awarded. I'd bet they'd go for half- make sure you get that in writing and that the payment settles the judgment in full.

Whatever you do, make sure that you are given a SIGNED form called a SATISFACTION OF JUDGMENT that you file with the court. After that, no one can come after you again.

[DFS]

used to be one. And the stories he tells. And guess what, the courts don't care too much. A friend of mine stood in front of the judge and said "I didn't get proper service" and the judge said "well, your here aren't you"? Nuff said!!

[soveu38]

Hi Lisa,

If u just found out about this you should consult your state laws and see what they are.

In california its 6 months from the date you find out a default judgment has been issued

against you or two years from the date the court clerk sent the default judgment. Or if

you have personal knowledge of it and you fail to appear at an court hearing

you have only 30 days from the date the default was entered. When in doubt contact

an attorney or legal aide society if its offer in your county. I just let the judge decide

and it went very well although, I was clinging to my seat waiting to hear from the court :)

[usctrojanalum]

I had a problem like this in 2008. I wasn't served properly according to NYS statute and had a default judgment against me from 2006. At that time I was not checking my credit report regularly and they never attempted to enforce it against me (I was also living away from home and I never got my mail). But there is a New York statute that Orders 2 Show Cause to vacate a judgment can only be brought within one year of the date of default which screwed me.

I fell into some money and paid them off in a lump sum in exchange for a stipulation to vacate the judgment which means it becomes expunged from my record like it was never even on there. My credit score went up 67 points after I did that so it was a good deal.

[Chapel Hill]

Did you have any success? Were you outside the SOL related to vacating the judgment?