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I was recently successful in having my motion to vacate a default judgement granted. I was wondering if it is still too late to have the service on the lawsuit squashed as my motion to vacate was granted due to improper service. The suit was filed in 2012 and I didn't find about it until earlier this year. I filed my motion in May. Is it too late?

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I was recently successful in having my motion to vacate a default judgement granted. I was wondering if it is still too late to have the service on the lawsuit squashed as my motion to vacate was granted due to improper service. The suit was filed in 2012 and I didn't find about it until earlier this year. I filed my motion in May. Is it too late?

 

Are you sure the judge didn't mention something about accepting service by virtue of the motion being granted? 

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The judge only vacated the judgement and set a hearing that was scheduled yesterday for mediation. I didn't agree to anything and they set a continuance. At this time I'm seeking a lawyer. The judge didn't mention anything about service being accepted. I would assume because the while basis for vacating the default judgement was due to improper service.

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Guest usctrojanalum

Yeah, if the judge set it down for mediation the issue of service is moot and has already been decided.  The judge is allowing the case to proceed normally on the merits and you are to accept service by virtue of having the judgment vacated. It's a pro-plaintiff policy but it's something that is done basically everywhere.  If the Court would have set the matter down for a traverse hearing, that is where the Court decides if the case should be dismissed or not.

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So am I not entitled to a traverse hearing or was I to request that on my own. I don't understand how the plaintiff received a default judgement for improper service but are allowed to continue with a suit where the summons was improperly served resulting in that now vacated judgement? I was not informed that by having the judgement vacated I was accepting service. That was never presented or mentioned. I consulted with an attorney and he mentioned that I could file to have the service quashed but there was no guarantee that the judge would grant it. So am I allowed to contest service of the summons or not?

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In california at least from what I can remember the part where you ask for vacating a judgment requires you to supply a proposed answer to the complaint.  If the judge vacates the judgment your proposed answer is accepted so I guess you agree to the courts jurisdiction.

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Guest usctrojanalum

So am I not entitled to a traverse hearing or was I to request that on my own. I don't understand how the plaintiff received a default judgement for improper service but are allowed to continue with a suit where the summons was improperly served resulting in that now vacated judgement? I was not informed that by having the judgement vacated I was accepting service. 

 

Hard to tell from where we are we don't have all the information in front of us.  In these types of spots, it gets tricky for the judge because they want to be fair to both sides.  It is in the best interest of justice to have cases heard on the merits.  You obviously know about the lawsuit now, have received a copy of the summons, and are able to tell your side of the story in front of a judge now.  Like the poster above me, in NY you also file an answer with your vacate motion.  The Court will basically force you to accept jurisdiction over the case in exchange for vacating the judgment.

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Well, no I haven't received a copy of the summons. I've also read that in Florida if a judgement is vacated on the basis of improper service then the entire lawsuit has to be refiled. Finding out about the judgement and then filing to have it vacated occurred due to me finding out about the default judgement on my own accord. Even know I haven't been presented with the summons. I have what I requested out of the file. It would seem to me that the lawsuit would not be allowed to proceed until I am properly served as you are entitled to that. I never received my opportunity to answer to the summons as I never received it. What I answered to was the just cause needed to set the judgement aside. I see those as two different things.

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Guest usctrojanalum

OK, my apologies I just assumed since the judgment was vacated you requested a copy of the summons and complaint from the Court file and that you have actually read the complaint.

 

Lawsuits are allowed to proceed every day across the country that are not properly served, just a way of life.  A lot of the times the Court is just wasting everyone's time making the plaintiff refile.  It's better for judicial economy and is fair to both parties to vacate a judgment and allow the case to proceed to trial.

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