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Vacating Default for Improper Service


MovingTarget
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Good morning, and thank you in advance for your assistance.

I just found I was sued in my home state and a default judgement was entered against me.  I investigated, and the service was all kinds of improper:  Affidavit of Personal Service sites that I was served on 3/18 in a residence in Kansas.  The issue?  I moved to Missouri in December.  I was not at work on that date, but I know I was in this state, not Kansas.  I am currently reviewing my bank account and other records, because I know I have proof of being in Missouri on that date.

My questions is, where do I start?  Do I just file a motion to vacate and site my proof?  Do I have to take it to the County Clerk back in my home state, or can I mail it?  I REALLY want to head this off before my employer winds up with a wage garnishment.  

Thanks!

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2 hours ago, MovingTarget said:

Good morning, and thank you in advance for your assistance.

I just found I was sued in my home state and a default judgement was entered against me.  I investigated, and the service was all kinds of improper:  Affidavit of Personal Service sites that I was served on 3/18 in a residence in Kansas.  The issue?  I moved to Missouri in December.  I was not at work on that date, but I know I was in this state, not Kansas.  I am currently reviewing my bank account and other records, because I know I have proof of being in Missouri on that date.

My questions is, where do I start?  Do I just file a motion to vacate and site my proof?  Do I have to take it to the County Clerk back in my home state, or can I mail it?  I REALLY want to head this off before my employer winds up with a wage garnishment.  

Thanks!

Did you live at that residence?  Did someone accept service on your behalf and do your rules allow for that?

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4 hours ago, MovingTarget said:

Affidavit of Personal Service sites that I was served on 3/18 in a residence in Kansas.  The issue?  I moved to Missouri in December.

Unfortunately if the suit was filed in KS before you moved then the venue was proper.  If KS allows for "tack and nail" service where they simply leave the papers at your residence then the service was likely legal in which case getting this set aside is going to be nearly impossible.  It can take a month or more for service of the summons after the case is filed.  

4 hours ago, MovingTarget said:

Do I just file a motion to vacate and site my proof?

You would file a motion to vacate based on improper jurisdiction and hope that it flies with the court.

1 hour ago, BV80 said:

Do I have to take it to the County Clerk back in my home state, or can I mail it?

Depends on the rules for the court.

Who sued you?

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Vacating a judgment is state specific and the rules governing service vary from state to state as well.   Being able to vacate a judgment in Louisiana is actually quite rare because of how service has to be effected ( we do not have service by "tacking") so the most common example is when there is domiciliary service upon another individual that the defendant was not living with at the time of service AND we can prove the defendant was living elsewhere.   

The procedure in Louisiana would actually be a separate lawsuit filed against the judgment creditor seeking to have the judgment declared null (it already is null, you are seeking a court determination at this point).   In the very few cases (I can probably count on one hand) where I have seen a judgment that was a nullity because of lack of service or improper service, I have been able to submit the proof to the judgment creditor and they have consented to the petition for nullity but then that just starts the original lawsuit (the one where there was previously a judgment) over again.   However, at that point, you can at least now file an answer and defend against the lawsuit once it is properly served.

Your state could be completely different.   Your state could allow service by tacking and your state may deem you still a resident of that state for so many days after you move.    Although I think this is unusual, your state may allow service by publication (putting an ad in the paper).   

The first step would be to see how they are alleging you were served.   Then see whether they served you properly under that mechanism pursuant to your state's laws on service.   

It is extremely difficult to have a situation where a judgment can be vacated in Louisiana.   In most other states, it is much easier.   

Do you know how they are alleging you were served?   personally?   domiciliary?   service by tacking or publication (if allowed by your state)?

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OP said the paperwork says they served him personally in march, in Kansas.

He moved to Missouri the December before.

 

Moving Target-  Did they serve the address you used to live in? Do you know the people that live there now?

You will have to search your state rules on residency.  In Colorado you are considered a resident after living here 6 months.  You need to see 1. how long before you are considered a Missouri resident, and 2. What Kansas has to say about residency.

You would need to file the motion to vacate to the court that granted the default.  You can call that court clerk and see if they allow filing by mail, some courts do.  Has it been less than a year since the default? If so you stand a much better chance of getting it vacated.

Write a motion to vacate, just like a brief.  list the facts of the case, then in the body explain why it should be vacated, followed by a prayer at the end. 

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On 9/2/2016 at 4:38 PM, shellieh98 said:

OP said the paperwork says they served him personally in march, in Kansas.

He moved to Missouri the December before.

 

I appreciated that fact.   There is more than just personal service.    There are many, many, many methods of service and I find a lot of consumers lose track of the fact that a lawsuit does not always have to be in place in that consumer's hand.

99.99999% of my "I was never served consultations" go like this:

Q:  Who is [name the deputy served]"

A:  Oh that is my [wife, daughter, niece that was staying with us].

You have a problem sir.

I get that OP said he moved.   Depending on how he was served, OP needs to prove definitely that OP moved and it was not possible to be served in any manner, even by publication.

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