How to Overcome a Default Judgment

by John Skiba
Contact

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
Contact
more
less

Arizona Consumer Law Group, PLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.