Motion for Relief from Judgement Denied - Options?

[DigitalBella]

I recently filed a Motion for Relief from Judgement (Ohio) for a debt that is with Midland. I never received the original summons or any correspondence thereafter because it was sent to an address I hadn't lived at for several years. I stated this as my reason for the motion according to CIVIL RULE 60(. The judgement was filed in March of 2010. The motion was denied because they are stating my motion was not within one year from the Judgement. My question is is there anything else I can do? Obviously I didn't know about it, so how could I have filed in one year?! I provided a copy of my TransUnion credit report that showed when my address was changed as proof. I didn't find out about this until the Garnishment was sent to my employer last month.

[1stStep]

Nope - there's nothing you can do. If the rule states you have to commence in 1 year, then your out of luck...

So you can do one of 3 things:

1. Nothing - hope they dont garnish wages or levy bank accounts or file a lien on any real estate you own;

2. File BK;

3. Contact them and attempt to negotiate a lower amount to satisfy the judgment.

[BV80]

Can you prove you were never served? I know you said they sent the summons to your old address. For instance, was your mail not being forwarded? Could Midland have found out your new address to serve you properly?

Contact NACA (National Association of Consumer Advocates) to see if there's an NACA attorney in your area. If you can prove you were not served, there's OH case law that says a court does not have jurisdiction over someone who was not properly served.

The party effecting service must ensure complete and proper service. King v. Hazra (1993), 91 Ohio App.3d 534, 536.

Any judgment rendered in an action where there has not been proper service is void ab initio. Liberty Credit Services, Inc. v. Walsh, 10th Dist. No. 04AP-360, 2005-Ohio-894, at ¶13; Clark v. Marc Glassman, Inc. 8th Dist. No. 82578, 2003-Ohio-4660, at ¶17.

Some courts in Ohio have held that the uncontroverted affidavit of a party that he was not served with process is sufficient evidence to find a default judgment void ab initio. Griffin v. Braswell, 187 Ohio App.3d 281, 2010-Ohio-1597 (quoting Rafalski, 17 Ohio App.3d at 66-67, quoting Cox v. Franklin (Jan. 10, 1974), 8th Dist. No. 32982.)

A defendant can rebut the presumption of proper service with sufficient evidence that service was not accomplished. Griffin v. Braswell, 187 Ohio App.3d 281, 285 2010-Ohio-1597, ¶15; Ramirez v. Shagawat, 8th Dist. No. 83259, 2004-Ohio-1001, ¶15.

Under Civ.R. 3(A), an action is not deemed to be "commenced" unless service of process is obtained within one year from the date of the filing of the action. Jacobs v. SZAKAL, 2005 Ohio 2146 - Ohio: Court of Appeals, 9th Appellate Dist. 2005.

The last citation states that if you were never served, the lawsuit was never commenced (never began).

If there's no NACA attorney in your area, contact your state bar association and ask for the lawyer referral service. Tell them you need a consultation with a consumer attorney in your area. That attorney may give you a consultation at a reduced rate.

[DigitalBella]

Thank you BV80 that is extremely helpful I will try that. Thank you for siting all of these sources!

[BrunoTheJDBkiller]

Nope - there's nothing you can do. If the rule states you have to commence in 1 year, then your out of luck...

So you can do one of 3 things:

1. Nothing - hope they dont garnish wages or levy bank accounts or file a lien on any real estate you own;

2. File BK;

3. Contact them and attempt to negotiate a lower amount to satisfy the judgment.

I didn't find out about this until the Garnishment was sent to my employer last month.

Jenna again?

[BrunoTheJDBkiller]

( Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud; etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision ( does not affect the finality of a judgment or suspend its operation.

I would try a motion to reargue / reconsider. The one year time limit clearly states that it only applies to reasons 1-3. You are arguing under 5, which is any other reason. The term "reasonable time" is not defined. I would argue that you filed in a reasonable amount of time after you found out about the garnishment. If you were never served and had no clue that there was a judgment, it would be inequitable for the court to enforce it or to deny you under a rule that does not apply to your argument.

[DigitalBella]

Thank you for your response BrunoTheJDBkiller. I have searched around because I want to make sure I do this right for my court, but I haven't been able to find anything for the rules on filing a Motion to Reargue or a Motion to Reconsider.  Do you have any suggestions on where I could find this information. I have searched around these forums but I wasn't able to find much and Google wasn't much help either.

 

Should I just do the same thing as filing a Motion for Relief? 

 

Speaking of which...can you file more than one Motion for Relief? and (stupid question) is Motion for Relief and Motion for Dismissal the same thing?

 

Thank you!

[BV80]

You probably need to speak to an attorney.  I don't know for sure, but you might have to file an appeal with the appeals court.

[DigitalBella]

You probably need to speak to an attorney.  I don't know for sure, but you might have to file an appeal with the appeals court.

 

So is Bruno incorrect in his suggestion to Rearuge/Reconsider?