We have a judgement on an accident that involves someone elses truck not ours can you help to resolve this case
there was a truck wreck from a contract trucker and we were sued because we loaded the truck. they ended up with a judegment against us and our lawyer says they had with drew at the time this was in 05 and we didn't know about it for a couple of years now they are trying to take everything we have can you help
This is from a brief I wrote on the issue earlier this year.
CR 55.02 provides that "[f]or good cause shown the court may set aside a judgment by default in accordance with Rule 60.02." CR 60.02, in turn, provides in pertinent part that:
“[o]n motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds: (a) mistake, inadvertence, surprise or excusable neglect; . . . (d) fraud affecting the proceedings; e) the judgment is void; or (f) any other reason of an extraordinary nature justifying relief.”
Courts should assess motions to set aside default judgments liberally in order that litigants "may not be deprived of their day in court”. Educator & Executive Insurers, Inc. v. Moore, 505 S.W.2d 176, 178 (Ky. 1974). Further, case law sets forth a three part test to determine when a default judgment may be set aside: (1) valid excuse for default, (2) meritorious defense, and (3) absence of prejudice to the other party. Perry v. Central Bank & Trust Co., 812 S.W.2d 166 (Ky.App. 1991), citing W. Bertelsman and K. Philipps, Kentucky Practice, CR 55.02, comment 2 (4th ed. 1984). "Courts should not take a narrow interpretation of `fraud affecting the proceedings' where the net effect would cause an unjust judgment to stand." Burke v. Sexton, 814 S.W.2d 290, 292 (Ky.App. 1991).
That gives you some law. The bottom line from my perspective is that you're going to have trouble setting aside a judgment that is this old unless you have some VERY special facts in your case. What facts qualify as "VERY special" is up to your attorney to decide. You will need an attorney for this, however; I'm sure of that. It will not be easy to get this set aside if it is possible at all.
If I were closer I'd take a look at the case, but I'm in Northern Kentucky. Best of luck to you and whoever you eventually hire down there.
If the injured person obtained a judgment against you, he can enforce it for up to 10 years. However, I don't understand the part of your question where you write that they had "with drew it at the time". If you are saying that your lawyer failed to respond to the lawsuit, then you might have a claim against him, but at this point, you have not provided sufficient information. I suggest that you speak with your former lawyer and ask him to explain in detail how it is that the injured person was able to get a judgment against you. Then, you will be in a better position to decide whether your lawyer made a mistake, whether you misunderstood, or whether something else happened.
As you currently have an attorney representing you concerning this matter, it would not be appropriate for attorneys here on Avvo.com to attempt to second guess your own attorney. You should direct your questions to your lawyer. If he is not able to address these collection issues for you, perhaps he can refer you to someone else.
Mr. Lundeen is licensed to practice law in Florida and Vermont. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Lundeen strongly advises the questioner to confer with an attorney in your state in order to insure proper advice is received.
You need to speak with an attorney in your area and see whether the judgment can be vacated.
I hope this helps-
Disclaimer: I am a lawyer licensed in the State of Illinois only, and I am not your lawyer (unless you have been in my office and signed a contract). This communication is not intended as legal advice, and no attorney client relationship results. Please consult your own attorney for legal advice. This is for informational purposes only.