How to Vacate a Default Judgment – Alabama Consumer Defense Attorney Judson E. Crump

Once a judgment is entered against you, the law presumes that it is valid, and there are only a few ways to undo the judgment.  Here’s how.

First, know that judgments are always presumed valid once entered, and the law generally favors finality of judgments.  This means that if you ask a court to vacate its own judgment, the burden is on you to show good reasons why.

There are only a few grounds on which a court can vacate a judgment. Rule 60 of the Alabama Rules of Civil Procedure lists them:

1. Mistake, inadvertence, surprise, or excusable neglect.
2. Newly discovered evidence that could not have been discovered before the judgment was entered.
3. Fraud, Misconduct, or lies by the adverse party.
4. The judgment is void.
5. The judgment has been satisfied.
6. Any other reason where it is clear and undisputable that allowing the judgment to stand would be patently unfair.

The first 3 categories have to be raised within 120 days of the entry of the judgment.  So if you got a default judgment entered against you, and you didn’t know about it until 6 months later, you can’t raise any issue of mistake, new evidence, or fraud by the judgment creditor.  So this is a rare remedy because most people find out about judgments months or even years after they’ve been entered.

Category #4 is the most common way to vacate a default judgment, because this category includes cases where the judgment creditor never served you with the original lawsuit papers.  To get a judgment, a plaintiff must prove that they served the defendant with the summons and complaint.  This is proven by a document filed with the court called a Service Return.  The service return is signed by whoever served the lawsuit papers, and there are a few ways this can happen:

• A sheriff’s deputy signs the document showing who was served and when.
• A private investigator or process server signs the document showing who was served and when.
• A certified mail return receipt is filed, showing that the document was delivered to the residence, corporate office, or registered agent of the defendant.

If you were never served with the lawsuit papers, then it is possible to get the court to vacate a default judgment.  But you must prove that you were never served.  The service return is presumed to be the truth.

Step One: Reading the Service Return

The Service Return will state who served the summons, when it was served, and how it was served.  Here’s an example of a service return issued by a Sheriff’s Deputy:

Using that case as an example, the Return shows that the defendant himself wasn’t served, but his mother was served.  It also shows that the address listed by the Plaintiff was at St. Jude Circle.  But in that case, the defendant didn’t live there.  This is important, because service doesn’t always have to be made on the defendant personally.  It can be made on an agent of the defendant (rare for individuals, unless they’re elderly and have signed a power of attorney) or anyone over 16 in the defendant’s household.

So the first thing you need to do when you want to vacate a default judgment is go to the courthouse and get a copy of the service return.  If there are multiple service returns, get a copy of ALL of them.  Read them carefully.  Did they serve you?  Or was it someone else?  If it was an ex-husband, parent, baby-mama, or minor child, then that doesn’t count.  You can get the judgment vacated.

If it was an adult in your household (like a spouse, parent living there, adult children, or live-in girlfriend), then you are stuck with it.

Next: When the Service Return Contains False Information