How to Overcome a Default Judgment

by John Skiba

How to Overcome a Default JudgmentMost debt collection lawsuits end with the court entering a default judgment.  Default judgments are entered when you get sued and either don’t know about it or simply ignore it.  Some surveys show that when it comes to collection cases by debt buyers like Midland Funding the number of default judgments is over 90%!

If you have a default judgment it is important that you act quickly.  Now that the creditor has a judgment they can do some serious harm – wage garnishments, bank levies, and all kinds of things that can make life miserable.  Here are a few tips on things you can do to get the court to set aside the default judgment and allow you to have your day in court.

#1 – Act Quickly

When it comes to vacating a default judgment the longer you wait the less likely it is that you will be successful.  There are exceptions to that rule, but if you know about your default judgment and do nothing about and then decide you want to get it overturned several years down the road it isn’t very likely to happen.

The Arizona of Rules of Civil Procedure govern civil lawsuits.  If you want to have the court set aside your default judgment you have to ask the court to do so under Rule 60.  In most cases Rule 60 requires that must ask the court to set aside your default judgment within six (6) months from the time it was entered.  If you don’t, you are likely out luck.

Simply. Do.  Something.  The sooner the better.

#2 – Were You Served?

Many times the first a person will hear of their debt collection lawsuit is after the default judgment has been entered.  This can happen for a couple of reasons.  First, they may have served you at the wrong address.  Most debt collectors are using an address that they received from the original creditor.

This may or may not be your actual address.  If they go by your house to serve you with the lawsuit, and can’t get you at home, the creditor will likely ask the the court if they can serve the lawsuit on you by publishing it in the newspaper.  And when I say publish it in the newspaper I am not talking about the Arizona Republic, I am talking about a newspaper that is likely one step above your family newsletter you get each Christmas.  The point – if you get served via the newspaper the chances that you will actually receive notice of the lawsuit are pretty much zero.

If you have no recollection of being served with the lawsuit you need to check into what the creditor told the court. Before a default judgment can be entered the creditor must submit an affidavit to the court explaining how it is that they served you with the lawsuit.  You can go pull a copy of this affidavit by going to the court.

Take a look at the document.  Is the creditor claiming that they actually served you face to face?  Are they claiming to have sent a copy to your address?  What address was it?  Did they give it to you or just post it on the door?  Read this document carefully.  If any of it doesn’t appear accurate you may have a toe hold to object to the judgment and ask the court to set it aside.

Quick note – if the process server comes by your house and you go run and hide in the closet and so they leave it with your sister, that counts as service.  They don’t have to leave it with you personally.  All that the Arizona Rules require is that they leave a copy of the Complaint and Summons with someone of “suitable age and discretion”.  This likely means that they could serve your 14 year old son and the service would count.

#3 – Do You Have a Defense?

There are really two parts to getting your default judgment set aside: first we have to find a reason why the court should set the judgment aside – i.e. there was a problem with service of the lawsuit – and second you have to able to show that you actually have a defense.  The thinking behind this requirement is that there is really no reason to set aside a default judgment if you are only going to lose anyway.

If you have been sued by one of the big debt buyers (Midland Funding, Portfolio Recovery, CACH, LLC) then you do have a strong defense and the chances of getting your default set aside are much stronger.

There are other factors and strategies for getting your default judgment set aside.  But these three tips are a good starting spot to help you determine if you will be successful in getting it set aside.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© John Skiba, Arizona Consumer Law Group, PLC | Attorney Advertising

Written by:

John Skiba

Arizona Consumer Law Group, PLC on:

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