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Motion , Declaration & Order of Default and Judgment - Wage Garnishment and lie concerning being served

Asked about 3 years ago - Kent, WA

I had a medical emergancy that required a hospital visit. All costs were covered by my employers medical insurance program except for about $1,000. I paid a small partial payment to the hospital,which then turned over the remaining amount to a debt collector. Since I could not pay full amount owed to them and they did not accept and returned a partial payment I attempted to pay back to me , they then filed a Motion,Declaration & Order of Default and Judgment(I live in King County in Washington State). The problem is this...according to the court documents mailed to me,they said I was served on 9/9/08 , which did not occur , and because I was not served,was unaware that the case has since been heard on 10/16 and of course found me guilty. Yesterday they contacted my employer to start wage garnishment. There are a few issues with this - 1) Although my debt is not questioned by me , I would have at the very least liked to get my day in court. 2) Because the process servers,for lack of a better word,lied that I was served , do I have any recourse concerning that issue? I had my supervisor check my login and logout of work(which is done electronically and requires a physical clock in and out) on 9/9/08 and am attempting to find out whom,where and specifically when this service took place. If I discover that this supposedly took place at my residence and I have proof that I was at work at that specific time,is there anything I can do at all? I am single , have no roomates,nor anyone whatsoever that could have accepted this so called service at my residence. The court documents also state proof of service is on file - do I have to physically go this court to get a copy of this or can they mail , fax or email to me? I honestly don't know what to do...part of me wants to just let the wage garnishment take place,since like I said,I don't dispute what I owe and part of me wants to determine if I have any recourse whatsoever to prove I was not served and did not get a chance to go to court in person to have my case heard. There is something really bothering me that this judgment has taken place and partially is based on a lie by the process servers and to an extent ,the judgment creditior attorney. Is there anything I can do at all?

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Attorney answers (4)

John M. Kaman

Reputation Level 20

Answered about 3 years ago. Criminal Defense Attorney in San Francisco, CA.

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If you succeed in setting aside the judgment based on defective service but admit the debt you will be back in the same position you are in now for the most part. Successfully challenging the judgment might get you enough leverage with your creditor that he would allow a payment plan rather than a garnishment. Garnishment is bad for credit and employment.

www.kamanlaw.com

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Thuong-Tri Nguyen

Reputation Level 20

Answered about 3 years ago. Family Law Attorney in Renton, WA.

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Because you are aware of the judgment, the longer you wait, the less likely the court will vacate the default judgment against you. WA courts do not favor default judgments and, within limits, will vacate a default judgment to allow the parties to argue the merits of the case.

However, it does not sound as if you are arguing that you at some time owe the money. Unless the vacation of the default judgment would somehow result in a bar in the plaintiff from pursuing the lawsuit, the plaintiff can simply hand you another copy of the summons and complaint and start over. The expiration of the statute of limitations would be one reason why the plaintiff would be unable to legally pursue the lawsuit.

You will have to review the court file to find out how the process server allegedly serve you. There are ways to legally effect service without the defendant being physically served. On the other hand, I have seen cases in which service was allegedly handed to someone who could not have lived at that place.

Getting a vacation of judgment is expensive if you hire an attorney. Given that you say you owe about $1000, it may not be good financial sense to hire an attorney as the attorney's fees for preparing a motion for vacation of judgment likely are more than $1000.

You certainly have the option of reviewing your facts with an attorney.

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Mark Charles McClure

Reputation Level 9

Answered about 3 years ago. Bankruptcy Attorney in Kent, WA.

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First of all, I recommend that you get an attorney. While you can represent yourself, it took a baby attorney three years to understand te basics of the law and it will take him/her another three years to be able to start to reliably apply that knowledge practicably in the courts. In other words, this stuff can be tricky.

The attorney (you need to get right away) should set aside the default judgment and vacate the write of garnishment based upon lack of service, and for other good reasons (you haven't had your day in court). But, the judge has the discresion to not believe you regarding the service and let the judgment stand.

The creditor has no obligation to accept payments. So, even if you are sucessful in setting aside the judgment so you can have your day in court, ultimately the judgment would likely be awarded in favor of your creditor.

If you have other debt problems and owe more than $10k, you should probably talk to an experienced bankruptcy attorney to just see what your options are. In most cases a person filing bankruptcy is allowed to keep all of their assets, and their credit may actually be higher than it was before the bankruptcy 12 months later.

Regards,

Mark McClure

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Gregory J. Jalbert

Reputation Level 13

Answered about 3 years ago. Chapter 7 Bankruptcy Attorney in Seattle, WA.

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The fastest and the best thing to do is go to the court and look at the file. It will have an affidavit of service showing when they say you were served with the summons and complaint. If you were not properly served you have the right to have the default judgment and the garnishment set aside. (They do not need to serve you with the writ of garnishment before it is served on your employer). A garnishment is an expensive way to pay back a bill as they add a lot of expenses and fees to the garnishment so if you have a valid reason to have the default judgment set aside you might consider that.

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