The #1 Thing You Need to Eliminate a Default Judgment

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Video Transcript:

[Music] everybody welcome back to the consumer warrior podcast the podcast is dedicated to helping you with your big debt problems you're just dabbling in debt this is the podcast for you we can deal with the big debt problems like repossession debt collection lawsuits foreclosure bankruptcy and all the other horrible things that can happen in the world of financial problems we're really here to help you to help yourself welcome back to the show I'm your host John Skiba and on today's episode I want to talk about a problem that is so pervasive in debt collection world and a simply abusing creditors that rarely a day goes by in my law practice or I don't mean someone who deals with that and it is a default judgment a judgment that just has come out of nowhere all of a sudden your wages are getting garnished and you didn't even know you're involved in a lawsuit I'm gonna tell you one of the key things the number one thing you have to look at to determine if you have some good options as far as getting that default judgment to go away I'm gonna provide you with the number one thing you need to look at but before I do that I want to tell you that this episode of the podcast is sponsored by the consumer warrior project now the consumer warrior project is a platform that provides you with the tools you need to represent yourself to allow the legal issues related to debt collection it provides you with the information the goal of the whole of the consumer warrior project in its entirety is to level the playing field if you're representing yourself in court if you're going through the bankruptcy process alone you're feeling with repossession wage garnishment whatever it is the biggest disadvantage that you have is that you are likely dealing with an attorney on the other side for the debt collector they are repeat players in this process they know the rules they know the procedures you don't and they're gonna use that to your disadvantage so and I have something that's tailored specifically for our topic today and that's how to vacate a default judgment you can go over to legal coach that's the website WWE –gel coach and there you'll find the templates the forms and the video tutorials that I put together to help you to vacate a default judgment there's also other things to deal with lawsuits banker settlement so go over there to legal coach check that out that's all part of the consumer warrior project brand okay so on today's episode of the podcast I want to talk about default judgments and the number one thing you need to look at to determine if you have any legal leg to stand on when it comes to getting rid of this default judgment now in backing up just a bit this is how default judgments typically happen is that there's a lawsuit filed with a court the creditor the plaintiff says that they went out and they tried to serve you with those documents usually service entails bringing a copy of the complaint and the summons or the petition and the summons and literally putting them in your hand dropping them off at your house and giving a copy of it to you so that you have a chance to look at the allegations in the complaint and a chance to respond to them now this is where if you don't respond to the complaint and the summons after a set amount of time in most states it's 20 days or 30 days if you don't respond during that period then the court is permitted to enter judgment against you and it's called a default judgment and they usually give them everything that they're asking for plus interest plus attorney's fees and so you end up with these huge default judgments and just to understand the scope of this problem there are studies have been done that show that 90 to 95 percent of all debt collection lawsuits end in a default judgment now I've done this long enough that I know that there are a number of people that just you know stick their head in the sand and ignore if they're properly served they don't want to deal with it and they're just trying to run from the debts which as we talked about in the podcast that is not the way to solve the problem that's will just make things incredibly worse so but there are a number a huge number of these suits where the service of the lawsuit is not done appropriately it's not done according to the rules according to the law but people end up with the default judgment against them and then they end up in my office and say hey John you know what my wages just got garnished or my bank account just got levied I didn't even know there was a judgment against me I wasn't served with the lawsuit and you know this thing is years old and it's been clipping along collecting interest over all this time and so it's a huge problem and it's kind of difficult to put the genie back in the bottle and kind of unwind all of this but let me tell you the one thing you need to look at to determine if you have a case because I always tell clients if they can provide me if this one document I will tell them in five minutes whether we have a chance to get the default judgment set aside and give you a chance to come in and either settle the debt or negotiate it and that is a document called the certificate of service sometimes it's called the affidavit of service if you're watching this on the video portion of the podcast I'm gonna show one here on the screen you show you what it looks like now this document what this is is after the process server or the sheriff or the constable or whoever does service of process in your particular jurisdiction whoever does this after they serve you with the complaint in the summons they're then required to provide this affidavit or a certificate of service to the court saying look here's what I did I went by the house and I dropped off the complaint I dropped off the summons here's who I left it with and in most cases they even has put a physical description of who they left it with this is very very important because this is gonna give you the one thing that you have to determine if service of process was done correctly you need to read it very carefully and see who they left it with now in most jurisdictions they base their rules that govern service off of what's called the rule Federal Rules of Civil Procedure and Moe usually its rule for right around there and typically they require that they the the process server leave the complaint and summons with either the person who's been sued or with someone who lives with the person who's of suitable age indiscretion which generally teenagers will work even though I don't know I want my legal standing to be left in the hands of my teenagers but you know something like that'll work what doesn't work is they leave that with say someone's just visiting for dinner or you just have a friend that happens to be over or if they leave it with a neighbor that typically does not work they usually have to leave it directly with someone who lives in the home were actually as part of the lawsuit and so you can look at that certificate of service and just tell immediately if they actually did their job correctly did they actually come to where you typically where you live you know your home did they leave it with you did they leave it with someone else in the house who resides there it's entirely possible they left it with someone in the house and they didn't tell you about it you know they just didn't know what it was they set it to the side it gets thrown in the garbage and then you don't respond to it but they're also a number of situations I see where they don't go to the correct address they leave it with an old roommate who you don't live with anymore they leave it with a you know I I've even had situations where and I don't think this is the norm but I've had situations where Process Servers just flat-out fabricated things I had a client once who they said that they served her on a specific date and time on at her home and they said they left it with her directly we were able to go back and look at her Facebook page and proved to the court she was in a different state on that day she was attending a wedding clear across the country and so the court was able to unwind that something that's always bothered me like with that particular cases that the court wasn't as outraged as I thought they might be that this process server had just simply fabricated them at the situation as far as them actually serving them but you can look at that certificate of service and that will tell you if they didn't do it correctly if they didn't leave it with you or with someone who lives in your home or if they didn't go to the right address or if you were at home at that time and you can prove it then you may have a legal basis to get the motion or to get the default judgment and set aside and if you do that's when you go in and you file it's called a motion to vacate that default judgment or a motion to set aside that default judgment if you're able to do that then you know you have to serve that on the other side then they'll respond to an accord Court will determine if there's sufficient evidence to overturn that one other quick thing in many jurisdictions if they if the plaintiff / creditor can't find where it is that you live they will allow them to do something called alternative service and so if the court has issued an order saying well you don't have to you know drop it off in person but you can mail a copy via certified mail and you can post a copy on the door often the process server will file a certificate of service saying they've complied with that order and they'll say you know on this date I mailed a copy to the defendant and I went posted a copy on the door if the certificate of service doesn't show that they followed the judges instructions exactly then you may have an opportunity to use that to say service wasn't done properly and you get the judgment set aside so take a look at that certificate of service this is something I should back up so you may ask where do I get this document if you go down to the courthouse where the judgment was entered against you this will be in the file you can ask for a copy of that take a look at it see if they actually did what they're claiming they did if they did do service and it's done correctly you're gonna have a really difficult time getting that default judgment set aside very very unlikely that you're going to be successful there but if you get a certificate of service and it's clear that they didn't take the appropriate steps you have a good case to go in and file the motion to vacate and get the default judgment set aside and once they get rid of that default judgment if they've garnished pay if they've levied bank accounts whatever it is they've done all that has to come back it's all unwound it comes back to the very first step so again I have a tutorial on how to do a motion to vacate default judgment so if you go over to legal coach you can check that out there it's called how to draft a motion to vacate a default judgment and that will show you step-by-step how to do this and there's a template in there as far as what you need to provide to the court but the very first step is going to the court getting a copy that copy of that certificate of service and determining if the service was done correctly so hopefully that helps if you're dealing with the default judgment unfortunately there are hundreds of thousands of people each year that are dealing with these things and most of them don't even know it's happening and so this is where you have to go back kind of piece things together and find out why it is that they didn't provide you with proper notice so that's going to do it for this episode of the consumer warrior podcast I appreciate you listening and I will [Music]

The #1 Thing You Need to Eliminate a Default Judgment

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License: Creative Commons