Default Judgment: Start with whether you were legally served or not
I had a great conversation with an attorney the other day, and I wanted to share something that we talked about.
We were brainstorming on the best route of action for this client, and this lawyer figured out the answer to the most important question, “Were they properly served with the lawsuit?”
This client was not served properly under Rule 4, an Alabama rule under “service rules” (the rule may be different if you’re not in Alabama) that dictates what it means to be properly served in an Alabama lawsuit.
Let’s talk about why this is so important when you’re in a lawsuit.
The service of the lawsuit is the foundation that the judgment sits on top of. If you remove the service, then the judgment falls away.
Now, that doesn’t necessarily mean the lawsuit goes away, even if it’s from 1999, 2004, 2007, etc. The lawsuit is still there, but there is no judgment if you can show service was bad.
The point is that you need to look at the service date.
We would like to give you a rough outline of how service works in Alabama.
We don’t want to get bogged down in the details.
We want consumers to understand how it works, and how to figure out the answer themselves.
In Alabama, personal service is where they physically put the lawsuit in your hands.
If they deliver the lawsuit to your house, they have to give it to an adult that lives in the home. Not someone who’s in your home for Spring Break, Thanksgiving break, etc.
With this kind of service, there’s a chance that whoever they give it to won’t hand the papers to you so this is where a lot of people get burned.
The collection agency also can send the lawsuit via certified mail.
As an example, we had a case where the collection agency said that our client was served, so we looked at the certified mail receipt and saw that it was signed for by his wife. When you’re served via certified mail, it needs to be signed by the person being sued, or their agent. The collection lawyers will try to argue that your spouse is your agent, but that isn’t the case.
Maybe you told your spouse that they have authority to sign for you through power of attorney, or maybe you’re out of the country for 6 months and need them to sign for you.
Whatever the situation is, we want to answer the question, “Were you properly served by the debt collector?”
Because if the answer is no, then the judgment falls apart for the collector if you can convince the judge that you were not served.
Why are we hammering down on this point?
It’s a common occurrence for consumers to come to us with judgments against them, and they had no idea that there was even a lawsuit against them.
The judgment could be from years ago, and the debt is astronomical for the consumer.
If you were served properly then we would look at your options and see what would be the best option for you, which may include bankruptcy or settling with the collector.
With our clients that find out they weren’t served properly, we enter a motion to alter/amend/vacate the judgment, since our client was never served and the judgment is void.
Again, it doesn’t make the lawsuit go away, but the case can be flimsy if it was from 2005 and it’s from a debt you stopped paying on in, say, 2001. Hard for the other side to prove their case.
We hope this is helpful to you!
If you live in Alabama and you have any questions, you can reach us by phone at 1-205-879-2447.
Have a great day!