Default Judgment Never Served

LawWannabe

New Member
Jurisdiction
Colorado
Hello,

Thank you any help you may provide.

My wife and I are getting ready to sell some real estate. The title commitment showed that I had a judgment from 2014. I ordered the files from the court.

They, Midland Funding, served my son who lives at a different address, three houses away from me. The physical description doesn't match. He thought it was his and I was never notified of the suit.

Years ago I went to a Pro Se law seminar where they said that it was best to do a collateral attack, as opposed to a direct attack.

The dollar amount is approx. $2,000. Could this be done in small claims, or do I need to do it in District Court?

Also, I signed up for a Casetext trial to do some research. I was looking for others that have filed these types of actions to get ideas of the wording of their filings. I could read the case holdings, but not the motions and complaints. Other than ordering them from the court, is there a research option that allows me to view the filings?

Thank you very much for any help you can give me.
 
Years ago I went to a Pro Se law seminar where they said that it was best to do a collateral attack, as opposed to a direct attack.

The dollar amount is approx. $2,000. Could this be done in small claims, or do I need to do it in District Court?

Not really sure what you're contemplating in terms of a "collateral attack," but the appropriate thing to do would appear to be a motion to set aside the default judgment pursuant to Rule 60(b) of the Colorado Rules of Civil Procedure. I do see that Rule 60(b) contemplates "an independent action to relieve a party from a judgment," but it seems that such an action would have to be filed within 182 days after entry of the judgment.

I'd suggest conferring with a local attorney, but you might be better off simply negotiating with the creditor, and that's especially true if the underlying debt is valid and you'd end up with a judgment anyway.
 
What is important is where the complaint was served not where the default judgment was served. If you didn't know you were being sued you couldn't respond to the complaint.
 
Not really sure what you're contemplating in terms of a "collateral attack,"

Thank you. I am under the impression that the judgment is void due to lack of service, and that there is no time limit to fight it as void. I understand that it has to be done within a certain time after learning about it.
 
You apparently have not read Colorado Rule 60 (link below).

Yes, same name.

Did the account/lawsuit/judgment identify you as LawWannabe Sr or just LawWannabe?

If the latter you would be hard pressed to show improper service. Especially 4 years later since Colorado Rule 60 allows you 182 days based on (b) (1) and (2):

Rule 60 - Relief from Judgment or Order, Colo. R. Civ. P. 60 | Casetext Search + Citator

This is an example of why it's such a bad idea to name one's offspring after oneself. It sometimes turns into a very expensive mistake.
 
You apparently have not read Colorado Rule 60 (link below).



Did the account/lawsuit/judgment identify you as LawWannabe Sr or just LawWannabe?

If the latter you would be hard pressed to show improper service. Especially 4 years later since Colorado Rule 60 allows you 182 days based on (b) (1) and (2):

LawWannabe, no Sr.

I read Rule 60. If I didn't know about the suit for 6 years, I could not have responded within 182 days.

If I would have received notice, I would have negotiated for payoff. They don't want to talk now, because they have a judgment. As far as they know, I ignored the summons.
 
The dollar amount is approx. $2,000. Could this be done in small claims, or do I need to do it in District Court?

Is it worth it to you to waste time, spin cycles, get frustrated, feel helpless, TRYING to fix a very small thing?

Yes, its $2K.
However, you're preparing to sell SOME (as in MORE than one) pieces of property.

You're very smart to accumulate real estate, as in MULTIPLE properties or land holdings.

You're going to make a killing, so let the judgment holder get their lousy $2K tribute.

Heck, you could even pay them their tribute in advance of your real estate transactionS as you REAP in your LARGESS.

Congratulations to you for being a savvy investor, and real estate mogul.

Don't stress over the little scavenger getting a few bits of offal.

Life is too wonderful to waste your precious hours fighting over nothing when you're raking in SOMETHING.
 
There are ways that a person can be properly served without ever knowing about it. This might be one of those ways. You mention title commitment, implying that you may already be in escrow. Going to court to set aside the judgment could take months and you could still lose on the issue. Meantime you've delayed the sale of the property.

I agree with Army Judge. Might be best if you just let it get paid out of escrow and be done with it.
 
I am under the impression that the judgment is void due to lack of service, and that there is no time limit to fight it as void.

I agree that Rule 60(b) does not apply the 182 day time limit when the judgment is void, but on what do you base your "impression" that a judgment resulting from the facts you have described is "void"?

I did a text search of the annotations to Rule 60 via the link that "adjusterjack" provided. One says, "It is incumbent upon one to prove mistake, inadvertence, surprise, excusable neglect, or fraud or that a judgment is void because no service was had upon him." For this proposition, it cites to Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820 (1957). However, when you read that case, it isn't helpful. The defendant who claimed a lack of service moved to set aside the default judgment. The motion was filed about 90 days after judgment was entered. The trial court denied the motion, and the appellate court affirmed that ruling. Most importantly, nowhere in the case is there any statement that lack of service makes a judgment void.

The bottom line is that you're going to need to find a case that says service on the wrong person makes a judgment void. You may also deal with some credibility questions. The court may not believe that junior was served with the lawsuit and whatever other documents may have been sent (there should have been some sort of notice that the plaintiff was seeking a default judgment, notice of entry of judgment, etc.) and failed to notify you.

Additionally, you haven't addressed the issue I raised in my prior response about whether this is a legitimate debt. If you don't have a meritorious defense to the plaintiff's claim, what's the point of having the judgment set aside? You said it's a $2k judgment, which is probably closer to $3k with post-judgment interest, so your better approach is probably to try and negotiate a payoff.
 
If you don't have a meritorious defense to the plaintiff's claim, what's the point of having the judgment set aside?

Good point.

"In order for the trial court to set aside a default judgment, the moving party must make two basic showings: first, that the neglect which brought about the default was excusable; and second, that he has a meritorious defense to the action."

Lopez v. Reserve Insurance Co., 525 P. 2d 1204 - Colo: Court of Appeals, 1st Div. 1974 - Google Scholar
 
There are ways that a person can be properly served without ever knowing about it. This might be one of those ways.

Exactly in what ways would that work in this situation? Process served on the wrong party at the wrong address. It ends there if you are talking about notice by publication.
 
As far as the process server (and perhaps the court) is concerned he got the right person.

Process server: Are you LawWannabe?
Law Wannabe: Yes.
Process server: Here. You've been served.

That's how.
 
Note that "personal service" doesn't even mean handing it directly to the lawsuit party. All it takes is handing the documents by someone unrelated to the case to the party or some other adult at the party's residence or place of employment. They then file a return of service notice. So AJ above overstates what's required (as simple as that was).

You can also be served by other means if you an attempt at personal service doesn't succeed.

Further, once the case has been served, there's not usually any further obligation to "serve" anything. Judgments are not "served." The court just issues them. Some motions are required to be delivered to the other party (or their attorney when they are represented), but that doesn't take formal "service." A default judgment doesn't take notification, just the plaintiff pointing out to the court that the defendant has failed to respond.

As pointed out, you might have grounds to set aside the default judgment if there indeed was some defect involved, but frankly, it will take an attorney. Just yelling "I wasn't served" isn't going to suffice.
 
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