Written by attorney Matthew Scott Berkus

You have a debt collection judgment against you, but weren't notified of the lawsuit.

You Received a Judgment Against You For a Debt.

Debtor's often find out too late that a creditor obtained a judgment against them. A common question here on AVVO is that a debtor was never notified of a lawsuit but the court entered judgment against the debtor. These judgements are referred to as default judgments. The question becomes, what can the debtor do now?

Background: In order for a creditor to obtain a judgment, the creditor must first sue the debtor. For a creditor to sue a debtor, the creditor must serve the debtor with a summons and complaint. Serving the summons and complaint is accomplished by physcially handing the package to the debtor. However, if the debtor cannot be found, all states have procedures for alternative service (e.g. stapling to front door, publication in newspaper, etc.). So, if the debtor truly did not know about the lawsuit, the issue is whether the plaintiff properly served the debtor.

4 Step Process.

  1. Obtain the court file from the court that entered the judgment.
  2. Find in the file the proof of service or affidavit of service. This document will explain how the plaintiff alledged to have served you the summons and complaint.
  3. Schedule a consultation with an attorney to review the court file and proof of service and discuss options.
  4. Don't wait. Time is critical. If you delay, your right to overturn the judgment may expire.

The Eventual Goal.

The goal of this process is to determine if you can set aside the defualt judgment. Doing so is accomplished by filing a motion with the court that entered the default judgment. That motion is usually called a Motion to Set-Aside judgment (but states may have various titles).

What's The Catch?

  • You might have been properly served.
  • The affidavit of service is presumed valid, so the debtor needs "evidence" that service was improper. Simply not remembering being served will not be enough.
  • To set aside a judgmnet, in addition to showing improper service, you must also show that you had a defense to the plaintiffs claim.

So, if you find yourself facing a default judgment for a debt and don't recall being served with a summons and complaint, follow the above 4 step process. Before any attorney can answer your questions or help you, they need that information.

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