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wimf77

Mississippi Default Judgment but proof of not being served

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I would like to post regarding my situation. I would appreciate any advice that can be given.

 

I have recently been told that I have a garnishment that will begin in about a month from now. I was taken aback because I have been attending to my credit reports for the past couple of years very closely. I have fair to good credit scores and I never saw anything pertaining to bad debt. I began searching for what the issue was. I went to the court house where this originated. In the whole process I have found:

  • A credit card was charged off in 2006
  • The "placement manager" for the credit card company did an affidavit stating that something is true and correct (there is no additional documents to see with this affidavit)
  • A complaint was filed and a summons issued in March 2006
  • I was allegedly served in April of that same year; HOWEVER this is impossible because I did not live at that address at that time. And I have documentation from my former landlord to support this.
  • A default judgment was ordered.
  • This year, 2013, the lawyer signed an affidavit to serve my job (not me)
  • There is a proof of mailing (mailing what? I don't know because there are no other documents with it). And also they mailed it to the address from 7 years ago again, although they should have had my address from my job.
  • The lawyer and circuit court clerk signed a "renewal of judgment" in May 2013. Apparently there is no need for a judge for this.
  • A suggestion of writ of garnishment was signed and issued in August 2013.

My thought is that it should be thrown out due to:

  1. Statute of limitations (3 years in MS)
  2. No due process (I was never served)

However, the few lawyers that I have attempted to contact basically say that it is my word against the service processor and do not want to take the case. Even though I have a statement from my previous landlord.

 

Some have also said to file bankruptcy. I have decent credit through my own diligence and trying to resolve anything on my credit reports. I know that both bankruptcy and garnishments wreak havoc on credit scores.

 

This whole situation seems wrong. But it seems like I cannot find anyone to help.

 

 

 

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It is your word against the service processor (people known to lie even more so than debt collectors), but your evidence of living at a different address would tilt the argument in your favor.

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When reviewing the denial of a motion to set aside a default judgment, we will disturb the ruling where the trial court has abused its discretion. Guaranty Nat'l Ins. Co. v. Pittman, 501 So.2d 377, 388 (Miss.1987). "To be sure, default judgments are not favored and trial courts should not be grudging in the granting of orders vacating such judgment where showings within the rules have arguably been made." Id. at 387-88 (citing Bell v. City of Bay St. Louis, 467 So.2d 657, 666 (Miss.1985)).


"A court must have jurisdiction [and] proper service of process in order to enter a default judgment against a party. Otherwise, the default judgment is void." McCain v. Dauzat, 791 So.2d 839, 842(¶ 7) (Miss.2001) (citing Arnold v. Miller, 26 Miss. 152, 155 (1853)).. Otherwise, the default judgment is void. Id. If a default judgment is void, the trial court has no discretion and must set the judgment aside. Sartain v. White, 588 So.2d 204, 211 (Miss.1991).


 In order to assist trial judges, the Mississippi Supreme Court has articulated a three-prong test for trial judges to use when they are analyzing a motion to set aside a default judgment under Mississippi Rule of Civil Procedure 60(b). McCain, 791 So.2d at 843(¶ 10). Under this test, the trial judge must consider: "(1) the nature and legitimacy of the defendant's reasons for his default ..., (2) whether the defendant in fact has a colorable defense to the merits of the claim, and (3) the nature and extent of prejudice which may be suffered by the plaintiff if the default is set aside." Id.

This Court has stated that "where there is a reasonable doubt as to whether or not a default judgment should be vacated, the doubt should be resolved in favor of opening the judgment and hearing the case on its merits." McCain, 791 So.2d at 843 (¶ 10)(quoting Sw. Sur. Ins. Co. v. Treadway, 113 Miss. 189, 74 So. 143, 146 (1917)).

 

Maybe the following case will help you.

 

http://scholar.google.com/scholar_case?case=319964107266069616&q=%22default+judgment%22+AND+%22never+served%22&hl=en&as_sdt=4,25

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Thank you so much for the information. I am reading each case now. And I am continuing to look for an attorney who may be willing to help me locally. It seems most of them do bankruptcy work and are quick to point me that direction.

 

The most recent response being, "The chances are slim to none that a Judge will set aside an Order entered 7 years ago. The only recourse you presently have is to file bankruptcy to stop the garnishment UNLESS you contact the attorney for the credit card company and enter into a payment agreement. You maybe able to pay the company directly instead of having them garnish your check. The only downside is that the company may not agree to that offer due to the passage of time. I do handle bankruptcies if that is an option for you. Initially the bankruptcy will adversely affect your credit score. Once you are discharged, you can work to rebuild your credit. I have had clients who have qualified to purchase houses approximately 1-2 years after being discharged from bankruptcy."

 

At this point, the interest charges have more than doubled the original debt. I know that bankruptcy will definitely work in favor of an attorney's income but it would absolutely destroy my credit. Even though it was several years ago, doesn't everyone have the right to due process? It is frightening that something can not show on your credit report, you can get a dishonest service processor who only collects $30 and disappears, and those working in the system presents that it doesn't matter, just file bankruptcy.

 

I digress from frustation. I thank and appreciate any and all assistance from you all.

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It may not be a dishonest process server.  Many states allow for "tack and nail" service.  If yours does that means they can leave the paperwork on the address on the summons.  Doesn't matter that you no longer live at 1313 Mockingbird Lane as long as the process server can attest that this is where they delivered the paperwork.  The dishonest entity is the creditor who used sewer service to get a default judgment knowing you no longer lived at that location. The law requires they file the suit at the defendant's known location so that they have the opportunity to defend the case.  

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Hi Clydesmom,

 

I actually checked that already and Mississippi is not one of the states who allow that practice. Also on the affidavit that the processor filled out to get paid he completed a section stating that he delivered it to "person", I can only presume that this means to me personally since there is another section or option to say that the summons was left with someone else at the residence. I just found an article regarding 3 process servers in Mississippi who were found guilty of such practices from 2012 so I am a little hopeful. But of course it was in another jurisdiction than mine.

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Hi Clydesmom,

 

I actually checked that already and Mississippi is not one of the states who allow that practice. Also on the affidavit that the processor filled out to get paid he completed a section stating that he delivered it to "person", I can only presume that this means to me personally since there is another section or option to say that the summons was left with someone else at the residence. I just found an article regarding 3 process servers in Mississippi who were found guilty of such practices from 2012 so I am a little hopeful. But of course it was in another jurisdiction than mine.

 

Okay so it is also possible that it was served on a "resident" which would be legal but shady.  

 

I would get a sworn affidavit from apartment landlord that you did not live there from X point going forward and it would have been impossible to serve you.  Then I would seek a motion to vacate based upon fraud upon the court.  THAT the court should take seriously.

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No, I lived alone at the residence. I have gotten a sworn affidavit from the landlord. I have researched on my own and called the specific court house. There seems to be nothing that I can do on my own (motion to vacate or form to object to the default judgment) without an attorney. But no attorney will take the case.

 

The case I read before where the process servers were penalized monetarily was because the judge ruled that they swore that they served people who were actually dead or incarcerated. But wait, it gets more interesting. The judgment was overturned because it was found that they (the process servers) were not given due process. Unbelievable.

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@wimf77

 

What law or court rule says that you can't motion to vacate without an attorney?

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Hi BV80,

 

That is what I was told at the circuit court by one of their clerks. I went directly to the court house that I saw notarized the writ of garnishment and asked for all documents to be copied for me.

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@wimf77

 

Clerks are not always correct.   I'd contact the National Association of Consumer Advocates (NACA), and ask if there's a NACA attorney in your area.  If so, contact him and ask some questions.  You might want to get a consultation.

 

http://www.naca.net

 

If there's no NACA attorney in your area, contact your state bar association, ask for their lawyer referral service, and request the name of a consumer attorney in your area..  In my state, if I get the name of a consumer attorney from that service, he/she will provide a consultation at a reduced rate.  

 

Even if you don't hire the attorney, you could get your questions answered and plan your next steps.

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@wimf77

 

Good luck!  :-)   Please let us know what happens.  Any information could possibly be useful to other posters.

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No, I lived alone at the residence. I have gotten a sworn affidavit from the landlord. I have researched on my own and called the specific court house. There seems to be nothing that I can do on my own (motion to vacate or form to object to the default judgment) without an attorney. But no attorney will take the case.

 

Surely when YOU moved out someone ELSE moved in.  It is entirely possible that the guy knocked on the door and handed the papers to the first breathing human he saw and marked it off as "in person."  Then the new resident saw they weren't wimf77 and tossed the papers.  

 

EVERYONE has a right to access to the courts.  WHO told you that you could not file any motions without an attorney?  

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Surely when YOU moved out someone ELSE moved in.  It is entirely possible that the guy knocked on the door and handed the papers to the first breathing human he saw and marked it off as "in person."  Then the new resident saw they weren't wimf77 and tossed the papers.  

 

EVERYONE has a right to access to the courts.  WHO told you that you could not file any motions without an attorney?  

 

 

 

I believe the OP said the court clerk told him/her that.  The clerk might be wrong.  Or this could be what I call a corrupt court, that is anti-pro se and doesn't allow pro se's to access the courts.

 

Very wrong, yes, but these courts do exist.  I ran into one in southern Ohio, when I was trying to help a relative probate her deceased husband's estate.  The local probate court absolutely refused to let her file the will pro se.  They insisted an attorney had to do it, because there was real estate involved.

 

Even though I probated a parent's estate myself in another Ohio county, and there was real estate involved.  I did get a lecture from the probate judge on the value of having an attorney, but they let me do it pro se.

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Judges frequently need lectures on the fallacy of the civil court system to make justice available to all regardless of their financial standing.  Somewhere around half the population cannot afford an attorney to fully complete a case.  Way too many of that half have no idea what "pro se" even means.  They just feel screwed by a corrupt legal system.

 

The fundamental flaw I see in the system that affects Pro Se (and may be influencing judges), though, is that the rules of procedure are acted on in ways that actively divert the court from the merits of the case.  A failure in following the procedure should never be allowed to change the evidence of the case.  Instead, the court should impose on the party making the mistakes the costs of the mistake, and proceed with the case without deviating from the merits.  Actual attorneys making mistakes should also pay penalties, in addition to the costs.  Pro se should only pay costs, unless it can be shown their knowledge base is like that of an attorney.

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Update: So far I have been contacting law practices with no luck. I have been either referred to another practice, turned down flat, or not had any correspondence (phone and email) returned. I make too much for the state's legal services. At this point I am  seriously considering bankruptcy....

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