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jeremytyler662

Help with Motion to Vacate Default Judgment that has been paid

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I recently applied for a loan and had a surprise judgment on there.  It was for a loan I knew I had not paid but did not know I had been sued.  The complaint was filed 10/29/2013 in Mississippi and a summons issued that same day.  The summons shows served on 10/31/2013 and executed 11/06/2013. On 12/09/2013 a request for entry of default was filed and on 1/10/2014 the default judgment was signed by the judge.  They were going to move forward with garnishment so I decided to take a loan against my 401k and just pay it off.

 

I never received a summons but they did have the correct address.  It appears Civil Rule 4(d)  was not followed which states (d) Summons and Complaint: Person to Be Served. The summons and complaint shall be served together. Service by sheriff or process server shall be made as follows: (1) Upon an individual other than an unmarried infant or a mentally incompetent person, (A) by delivering a copy of the summons and of the complaint to him personally or to an agent authorized by appointment or by law to receive service of process; or (B) if service under subparagraph (1)(A) of this subdivision cannot be made with reasonable diligence, by leaving a copy of the summons and complaint at the defendant’s usual place of abode with the defendant’s spouse or some other person of the defendant’s family above the age of sixteen years who is willing to receive service, and by thereafter mailing a copy of the summons and complaint (by first class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after such mailing.

 

 I am looking to file a motion to vacate based on Civil Rule 4(d) and 60(b)(5) 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. 

 

I am posting my motion and declaration to vacate judgment if someone could look over it and give advice.  The circuit clerk will not give me any information on the process of this because they said it would be giving legal advice.  As far as I can tell I need to send a copy to the judge and file a copy with the circuit clerk in my file.  I'm guessing I need to set a court date and have the Plaintiff summoned also?  Any help would be much appreciated.

 

 

IN THE CIRCUIT COURT OF ______ COUNTY, MISSISSIPPI

THEM PLAINTIFF

VERSUS              NO.  2013-0193C

ME DEFENDANT
 

MOTION AND DECLARATION TO VACATE JUDGMENT

NOW COMES the Defendant, Pro Se and moves the court for an order vacating the judgment entered in this action pursuant to MRCP 60(b)(4) and 60(b)(5).
 

Statements of facts and issues.  This motion is based on the following grounds:

  1. MRCP 60(b)(4) the judgment is void;

  2. On the proof of summons, sworn to on 10/31/2013, the process server says he personally delivered to me at ADDRESS.  I couldn’t have been served on this day since I was in class at SCHOOL in CITY, MS.

  3. Because I was never served in this action, the Court lacks personal jurisdiction over me.

  4. MRCP 60(b)(5) 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 prospectivee application;

 

Dated: __________

_____________________________

NAME

ADDRESS

CITY, STATE      ZIP

TELEPHONE






 

DECLARATION

 

I, NAME, declare as follows:

I request that the judgment entered in this action be vacated for the following reasons:

  1. Unlike is indicated on the Proof of Summons, I was not personally served on 10/31/2013.  If someone in my household was served it was not done in accordance to MRCP 4(d)(1)(B) which states:

(B) if service under subparagraph (1)(A) of this subdivision cannot be made with reasonable diligence, by leaving a copy of the summons and complaint at the defendant’s usual place of abode with the defendant’s spouse or some other person of the defendant’s family above the age of sixteen years who is willing to receive service, and by thereafter mailing a copy of the summons and complaint (by first class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after such mailing.

  1. According to the Proof of Summons, no mailing of the Summons and Complaint occured.  I never receieved a copy of the Summons and Complaint as required by the rule.

  2. If service is made upon a relative, then a summons and complaint must also be mailed to the defendant at the same address.  The supreme court has found that mailed notice is a prerequisite to the completion of this form of service. Brown v. Bond, 768 So.2d 347(¶ 10) (Miss. Ct.App.2000)(citing Williams v. Kilgore, 618 So.2d 51, 56 (Miss.1992) (finding insufficient service of process where defendant's summons was left at his residence with his spouse, but never mailed to the residence where process was delivered)).

  3. This judgment has been satisfied and under MRCP 60(b)(5) is cause of relief.

  4. If I had been properly served I could have asked for verification that this debt belonged to me and paid in full.

I certify under the penalty of perjury under the laws of the state of Mississippi that the foregoing statement is true.

 

Signed in CITY, Mississippi on 6/13/2016

______________________________

NAME



 

NOTICE OF MOTION

TO:

 

RECORD OF COUNSEL

the attorney for the Plaintiff, whose addres is:

ADDRESS

CITY, STATE  ZIP

 

Please take notice that the undersigned will bring the above motion on for hearing before this court at the ____ County Circuit Court in the City of CITY, Mississippi, on the __ day of ______,20__, at _____ o’clock a. m./p. m. that day or as soon thereafter as counsel can be heard.

 

______________________________

   

 

CERTIFICATE OF SERVICE

I hereby certify that I have this date served a copy of this Motion and Declaration to Vacate Judgment and Notice of same on COUNSEL OF RECORD, Counsel of Record for the Plaintiff, PLAINTIFF, by placing a copy of same in the United States mail, postage prepaid, addressed to his regular business mailing address.

This the ___day of _____, 20__.

______________________________

 

 

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@BV80

My wife but according to Rule 4 even if it was served to her it had to also be mailed correct?

(d) Summons and Complaint: Person to Be Served. The summons and complaint shall be served together. Service by sheriff or process server shall be made as follows: (1) Upon an individual other than an unmarried infant or a mentally incompetent person, (A) by delivering a copy of the summons and of the complaint to him personally or to an agent authorized by appointment or by law to receive service of process; or (B) ifservice under subparagraph (1)(A) of this subdivision cannot be made with reasonable diligence, by leaving a copy of the summons and complaint at the defendant’s usual place of abode with the defendant’s spouse or some other person of the defendant’s family above the age of sixteen years who is willing to receive service, and by thereafter mailing a copy of the summons and complaint (by first class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after such mailing.

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@jeremytyler662

 

However, if service is made upon a relative, then the summons and complaint must also be mailed to the defendant at the same address. The supreme court has found that mailed notice is a prerequisite to the completion of this form of service. Brown v. Bond, 768 So.2d 347(¶ 10) (Miss. Ct.App.2000)(citing Williams v. Kilgore, 618 So.2d 51, 56 (Miss.1992) (finding insufficient service of process where defendant's summons was left at his residence with his spouse, but never mailed to the residence where process was delivered)).

 

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@BV80

Do you know anyone on this forum familiar with Mississippi procedures.  I am trying to figure out the whole process of filing the motion but seeing as I've never been involved in anything like this it's confusing.  I have been searching the forums for a few days but there's not much on here for Mississippi. 

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11 hours ago, jeremytyler662 said:

@BV80

Do you know anyone on this forum familiar with Mississippi procedures.  I am trying to figure out the whole process of filing the motion but seeing as I've never been involved in anything like this it's confusing.  I have been searching the forums for a few days but there's not much on here for Mississippi. 

Off the top of my head, I can't think of any MI members.  

Some RCPs (rules of civil procedures) are pretty standard throughout the country.   For instance, motions must be filed with the Court and a copy sent to the attorney for the other party.  Your rules should have a specific section regarding motions and filing of motions, etc.

You could contact an attorney for a consultation.   A consultation fee might run you around $100 for a 30 minute visit.  If you can't afford that, contact legal aid.

In fact, back when I was sued, I just started calling attorneys and a few of them were kind enough to answer a few basic questions about procedure over the phone.

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@BV80

Thank you I may just pay for that consultation.  I was talking to a attorney and he said he would do this for me but it would cost 500-600.  Here most lawyers won't even return my call and the one that did won't offer any advice without a consultation.  I think I have most of it figured out.  I am updating original post with updated motion.  If you wouldn't mind could you give any input on it?

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@BV80

On the proof of summons  there are different options to check such as first class mail, personal service or resident service.

https://courts.ms.gov/rules/msrulesofcourt/rules_of_civil_procedure.pdf   page 186 you will see what I mean.  If it was delivered to my wife they would have checked resident service and filled in the spot for the day they mailed a copy to me by mail.

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1 minute ago, jeremytyler662 said:

@BV80

On the proof of summons  there are different options to check such as first class mail, personal service or resident service.

https://courts.ms.gov/rules/msrulesofcourt/rules_of_civil_procedure.pdf   page 186 you will see what I mean.  If it was delivered to my wife they would have checked resident service and filled in the spot for the day they mailed a copy to me by mail.

Okey dokey.  Got it.

Note that I'm not an attorney.

What is your reason for including a motion for sanctions?

On 6/10/2016 at 8:40 PM, jeremytyler662 said:

NOW COMES the Defendant, Pro Se and prays this Honorable Court to Deny the Plaintiff’s Motion to Dismiss and Motion for Sanction for the following reasons:

Instead of "for the following reasons", I might state "pursuant to MRCP 60(b)(4) and 60(b)(5).

 

On 6/10/2016 at 8:40 PM, jeremytyler662 said:

Because I was never served in this action, the Court lacks personal jurisdiction over me.  I would have a affirmative defense of lack of personal jurisdiction.

An affirmative is your defense to the debt collection action.   If you had been properly served, you would have answered the complaint and would not have that defense.

You did not include that the summons and complaint was not mailed to you as required by MRCP 4(d)(1)(B).

On 6/10/2016 at 8:40 PM, jeremytyler662 said:

I was not personally served on DATE.  If someone in my household was served it was not done in accordance to Civil Rule 4(d)(1)(B) if service under subparagraph (1)(A) of this subdivision cannot be made with reasonable diligence, by leaving a copy of the summons and complaint at the defendant’s usual place of abode with the defendant’s spouse or some other person of the defendant’s family above the age of sixteen years who is willing to receive service, and by thereafter mailing a copy of the summons and complaint (by first class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after such mailing.  Nothing was ever mailed according to the proof of summons.

"Unlike is indicated on the Proof of Summons, I was not personally served on DATE.  If someone in my household was served it was not done in accordance to Civil Rule 4(d)(1)(B) which states:

(B) if service under subparagraph (1)(A) of this subdivision cannot be made with reasonable diligence, by leaving a copy of the summons and complaint at the defendant’s usual place of abode with the defendant’s spouse or some other person of the defendant’s family above the age of sixteen years who is willing to receive service, and by thereafter mailing a copy of the summons and complaint (by first class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after such mailing.

According to the Proof of Summons, no mailing of the Summons and Complaint occurred.  I never received a copy of the Summons and Complaint as required by the rule."

Something like that.

 

On 6/10/2016 at 8:40 PM, jeremytyler662 said:

This judgment has been satisfied and under Civil Rule 60(b)(5) is cause of relief.

When did you pay the debt and can you prove it?

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@BV80

2 hours ago, BV80 said:

Okey dokey.  Got it.

Note that I'm not an attorney.

What is your reason for including a motion for sanctions?

This was in the sample that I started with.

2 hours ago, BV80 said:

When did you pay the debt and can you prove it?

I paid it this past week when I found out about it.  I do have a receipt to prove this.

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I guess I don't understand why your trying to get the judgement  vacated if you have already paid it?  I understand you were not served, and they did not serve correctly, but the time to address that was when you found out about the judgement. By paying the judgement (unless they took it in the form of a garnishment or levy, or froze your bank accounts) then it is a little late to get it reversed, ESPECIALLY since it was on a loan you knew you owed, but had not paid. I guess I wonder what it is you want out of this? They would remand it back to court in all likely hood, and then you would need to defend the suit.  You could end up paying more than you have already.

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5 minutes ago, shellieh98 said:

I guess I don't understand why your trying to get the judgement  vacated if you have already paid it?  I understand you were not served, and they did not serve correctly, but the time to address that was when you found out about the judgement. By paying the judgement (unless they took it in the form of a garnishment or levy, or froze your bank accounts) then it is a little late to get it reversed, ESPECIALLY since it was on a loan you knew you owed, but had not paid. I guess I wonder what it is you want out of this? They would remand it back to court in all likely hood, and then you would need to defend the suit.  You could end up paying more than you have already.

The point is to get it off my credit report.  I had been working to pay off all my debt and was starting with the smaller amounts first and anything that had interest.  I didn't know I had been sued and a judgment put against me.  If I had been notified I would have paid it off first and worked on the other stuff later and avoided a judgment altogether.  I figured if it was remanded back to court I could just file a motion to dismiss since it's already paid in full.

I also highly doubt the plaintiff would spend money to defend it when they have all of their money already...

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2 minutes ago, shellieh98 said:

I don't think it will go that way, but good luck. :)

Maybe it won't but my thought was if I had been notified I could have paid it in full without it proceeding any further and the case would have been dismissed but I wasn't ever given that opportunity.

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18 hours ago, jeremytyler662 said:

Maybe it won't but my thought was if I had been notified I could have paid it in full without it proceeding any further and the case would have been dismissed but I wasn't ever given that opportunity.

I missed in your first post where you said you paid the judgment. 

You really to speak to an attorney to find out how paying the judgment affects a motion to set aside for insufficient service.   

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Well I filed the motion to vacate today with the circuit clerk and sent copies to the judge and plaintiff.  I'll update with whatever happens.  I did dispute the judgment with the 2 that were reporting it.  One of them did remove it and my score went up a whole 2 points. 

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I filed the motion to vacate back on Monday and today received a response to my motion.  Do I respond back or wait to hear from the Judge that I submitted copies of the motion to?  The lady at the Judge office told me I would be notified of the date of hearing if one is required.

Comes now, Plaintiff, XXXXXXXXXXXX, by and through counsel, and files this its Response to Defendant's, pro se, Motion and Declaration to Vacate Judgment, and for cause would show as follows, to wit:

1. Defendant has filed a pro se Motion and Declaration to Vacate Judgment, a copy of which is attach hereto as Exhibit "A" to Plaintiff's Response.

2. The Defendant alleges in paragraph 1., of said Motion, that the Judgment is void.  However, Defendant alleges no fact to support the requeted relief, nor does he support same by Affidavit for the facts to support the Judgment is "void".  As such, said allegations are not well pled and should be overruled.

3. The Defendant alleges in paragraph 2., of said Motion, that despite the Proof of Service executed by XXXXX XXXX of XXXX County Sheriff's Office, that the Defendant was served on October 31, 2013, that the Defendant was no available for process.  Again, the Defendant provides no facts to support same, other than he was in class at XXXXX.  Nor, did he verify same by Affidavit.

4. In paragraph 3., of said Motion, Defendant alleges he was never served, and thus the Court lacks personal jurisdiction.  The Defendant, being a reesident of XXXX County, Mississippi, granted personal jurisdiction upon him by residence.  Therefore, the unsworn allegations of this portion of the Motion are not well taken and should be overruled.

5. Finally, Defendant alleges under M.R.C.P. 60(b)(5) that the Judgment has been satisfied, released, or discharged, or that the Judgment is no longer equitable to stand against the Defendant.  Plaintiff admits that the Judgment has been satisfied, Defendant having paid in full the Judgment principle, interest, and legal fees.  As such, the issue of the validity of the Judgment would appear to be moot and the relief denied.

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@jeremytyler662

1 hour ago, jeremytyler662 said:

3. The Defendant alleges in paragraph 2., of said Motion, that despite the Proof of Service executed by XXXXX XXXX of XXXX County Sheriff's Office, that the Defendant was served on October 31, 2013, that the Defendant was no available for process.  Again, the Defendant provides no facts to support same, other than he was in class at XXXXX.  Nor, did he verify same by Affidavit.

4. In paragraph 3., of said Motion, Defendant alleges he was never served, and thus the Court lacks personal jurisdiction.  The Defendant, being a reesident of XXXX County, Mississippi, granted personal jurisdiction upon him by residence.  Therefore, the unsworn allegations of this portion of the Motion are not well taken and should be overruled.

The above goes to your claim that service was insufficient due to the fact that because your wife was served, you should have received a mailed notice.  The MS Supreme Court confirms that fact. 

In regard to the failure to provide an affidavit and unsworn allegations, you did provide a declaration under penalty of perjury.  You need to find out if that's sufficient in lieu of an affidavit.

1 hour ago, jeremytyler662 said:

5. Finally, Defendant alleges under M.R.C.P. 60(b)(5) that the Judgment has been satisfied, released, or discharged, or that the Judgment is no longer equitable to stand against the Defendant.  Plaintiff admits that the Judgment has been satisfied, Defendant having paid in full the Judgment principle, interest, and legal fees.  As such, the issue of the validity of the Judgment would appear to be moot and the relief denied.

The highlighted sentence is the point.  You paid the judgment before challenging its validity.  That's why I suggested you contact an attorney to ask how paying the judgment would affect your motion.   You still need to do that in order to find out if you have a valid response to #5.  Also, ask about a sworn declaration under penalty of perjury as opposed to an affidavit.

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@BV80

I consulted with a lawyer and it was suggested that after I win the case(he thinks I have a very very good chance at winning it) I should go for the throat and seek my money back.  I was thinking of only seeking back the attorney fees and interest if anything since I did owe the money.  I have submitted a affidavit since the declaration would not work.  I have also submitted an affidavit from my wife stating that she was given folded papers by the person that "served me" and that I was out of town at school.  I spoke to the guy that "served me" the summons and he admitted that sometimes other people serve for him and he signs off on it so I plan to bring that up in court but it will just be my word.  Would I be able to seek the money back while already in court for this or would I need to wait until judgment is vacated then file a counterclaim.

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8 hours ago, jeremytyler662 said:

Would I be able to seek the money back while already in court for this or would I need to wait until judgment is vacated then file a counterclaim.

I honestly don't know.   Contact the attorney with whom you spoke.  He sounds very nice and may not mind answering another question. 

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@BV80 Do you know of any case law in MS where the court lacks personal jurisdiction from improper summons violating the Fourteenth Amendment due process clause?  I go to court in the morning and would like to have some case law to support this.

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36 minutes ago, jeremytyler662 said:

@BV80 Do you know of any case law in MS where the court lacks personal jurisdiction from improper summons violating the Fourteenth Amendment due process clause?  I go to court in the morning and would like to have some case law to support this.

After a quick search, I found these but no Fourteenth Amendment.    These should work, though.  Hope it's it in time.

 

 "A court must have jurisdiction, 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, 847(¶ 7) (Miss.2001).

The principal is universal that no judgment order or decree is valid or binding upon a party who has had no notice of the proceeding against him.  James v. McMullen, 733 So.2d 358 (¶ 3) (Miss.Ct.App.1999).

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