Vacating Default Judgments, Part II – Alabama Debtor’s Rights Attorney Judson E. Crump

Sometimes, Debt Collectors and Collection Lawyers File False or Bogus Service Returns to Get a Judgment Without Notifying You.  Here’s what to do about that.

Last week, we discussed how to get a default judgment vacated if the Service Return showed that you were not served properly under the Alabama Rules of Civil Procedure.  Now we turn to a more difficult situation: where a collection lawsuit was never served on you, but the Service Return says it was served on you.

Before a plaintiff can ask for a Default Judgment, they must prove two things to the Court: a) that the amount sought in the judgment is valid, and b) that you were notified of the lawsuit in accordance with the Rules.

They prove the amount of the judgment by filing a default affidavit – a sworn statement of someone knowing the facts of the lawsuit attesting to the amount owed.

They prove that you were notified by filing a Service Return, which is signed by whomever served the papers on you and states who, when, and how the lawsuit summons was delivered to you.

Most Service Returns are correct.  The vast majority of them.  But there are numerous cases where the Service Return is just plain false. Sometimes people make mistakes.  They may serve the wrong person, for instance, honestly believing they got the right guy.

But there are also more nefarious reasons why a sheriff’s deputy or process server may put false information on a service return: either they’re lazy and don’t care to identify who they’re serving, or they can’t find the defendant and to save time and satisfy their customers (the collection lawyers) they just sign a service return knowing that they never served the papers.

Unfortunately, where a service return states that you were served it is presumed valid.  And contradicting a false service return is not as simple as just going to the court and telling the judge you never got served.  You must prove that you were never served with corroborating evidence.  Here are a few examples of the sort of evidence you’d need to prove a service return wrong:

• You were out of town on the date you were supposedly served, and you have plane tickets, hotel reservations, or credit card charges to prove it.
• The date you were served was a major event in your life that you could be expected to remember well – like a birthday, a wedding, or a funeral of a loved one.
• The person they claim to have served on your behalf at the time was not living in this state, or was dead or incapacitated.
• You were in a hospital or incapacitated when they claim you were served.

As you can see, these sorts of things are not often the case.  If you can’t prove the service return wrong, then you are probably stuck with it.  That isn’t fair, I know, but that’s the law.  Now, the judge has wide discretion on this, and if you show up with witnesses and you seem very honest about never getting notified, the judge may believe you or feel sorry for you and give you a break.  But don’t count on it, because if the decision gets appealed, your chances aren’t good.

If you can’t prove that the service return is incorrect based on the documents alone, then you do have another option: file the motion to vacate and have your lawyer depose the person who supposedly served the papers.  This is going to cost a lot of money, but it gives you a powerful way to find the evidence you need: from the plaintiffs themselves.  You get to cross examine the process server and hopefully, find holes in his story or other evidence that will enable you to prove that they were lying when they filed the service return.

The cost of locating and deposing a process server will be at least $500, and you’ll have to pay your lawyer at least that much just to file the motion and conduct a deposition.  But if there is a lot of money on the line, or if you have a great shot at beating them at trial, or if you really need the judgment off your credit report to get a home mortgage loan, then it could be worth it.

Next: Vacating a Judgment for Fraud on the Court