We discussed yesterday why it is not a good idea to wait on filing your answer until you are served as this exposes you to the danger of a default judgment. But if you already have a default judgment against you from a collection lawsuit filed by a debt buyer (Midland, LVNV, Asset Acceptance, Palisades, etc) then what are your options?
One option is to settle with the debt buyer. Debt buyers in Alabama are usually represented by Zarzaur & Schwartz, Nathan & Nathan, Nadler & Associates, Parnell & Crum or Angie Ingram. These collection lawyers are very experienced at settling cases and making payment arrangements with you.
But if you were not properly served then you may not feel like paying money to a debt buyer that often cannot or will not prove its case against you. The other option is to ask the court to overturn, or set aside, or vacate the default judgment against you.
We have had several instances recently where this was necessary for our clients and we have been very successful in getting improper default judgments set aside. This is because we are very strict on when we will accept cases involving default judgments.
First, you must be able to show that you were not served. This is true when, for example, the place the court shows you being served is not your address. Maybe you lived there when growing up but you now live in another city. Or, as our friend Whitney Seals experienced, maybe you were out of state in a hospital when you were allegedly served. Whatever the situation, you need to show you were not served.
Second, if you were served, then you have to provide a very good explanation to the court as to why you did not answer. This could be, for example, you were in the hospital and just got home when you were served and did not have your full faculties about you and did not understand what the lawsuit meant or the deadline to answer.
Third, the timing of filing a motion to set aside the default judgment must occur as soon as possible after the default judgment or after you find out about the default judgment. You never want to approach a court after sitting on your hands for a long time and then expect the court to give you a chance to have a trial.
Fourth, whatever you say is your reason for not answering the suit (never served or you have a good reason for why you did not answer), you need to be able to offer independent evidence. If you say you lived somewhere else, attach the lease agreement. Attach copies of power bills showing the other address. We had one client, who set aside a very large verdict, who got the gas company to send a letter verifying that he had service at an address that was different than where he was allegedly served. Having this type of evidence which shows from a third party that you were not living at the address where you were allegedly served helps show the court the truth of what you are arguing.
Fifth, you need a valid defense to the case. If you have no defense and are going to lose anyway, what’s the point of setting the judgment aside? In the case of a debt buyer lawsuit, its hard to imagine not having a valid defense since we have yet to see a debt buyer prove it owns the debt. Certainly the debt buyers have never shown us the contracts and all the amendments to the contract in order to prove a breach of contract. But whatever your defense is, you need to be able to explain what it is to the court in your papers asking the judgment be set aside. You don’t have to prove you will win but you do have to show you have a legitimate (or “colorable” as the cases say) defense.
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