What is the name of your state (only U.S. law)? Nevada
In January I received a demand letter from an attorney stating I owed monies to a leasing company for a business I had owned and that I was named as a Personal Guarantor. I responded within two weeks of the date on this demand letter. Five months later I found paperwork flying around at the side of my home that looked like a complaint filed with the Las Vegas Township Justice Court but without any signatures except for this attorneys. Being I was never served I did not believe it was legitimate but still responded to the address of the attorney on the complaint, sending it Priority Mail to have a record of its receipt. In early September I noticed monies missing from my checking account stating it was garnishment. The following day I received in the regular mail paperwork stating a Default Judgment was granted on this case with the leasing company.
I believe I need to file a motion with the Las Vegas Township Justice Court to have this default judgment reversed and be given the opportunity to defend myself. At no time would I ever have personally guaranteed anything, this company was a LLC. What steps do I need to take to correct this judgment and what terminology should I use? How could this happen without ever being served?What is the name of your state (only U.S. law)?What is the name of your state (only U.S. law)?
"Five months later I found paperwork flying around at the side of my home that looked like a complaint filed with the Las Vegas Township Justice Court but without any signatures except for this attorneys"
And I quote Rule 4(d)(6) of the Nevada Rules of Civil Procedure:
"Service Upon Individuals. In all other cases to the defendant personally, or by leaving copies thereof at the defendantís dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process."
1. You were served, you should have formally responded to the complaint in Court by either filing an answer or a motion to dismiss (if you really believe you didn't sign any guaranty agreement). It doesn't matter that you called this attorney, or sent certified letters to him, you did not respond to the complaint within the time alloted by law (in Nevada you have 20 days to formally respond to the complaint otherwise the Plaintiff can seek default judgment - which is what happened in your case).
2. In most cases on breach of contracts, only the attorneys need to sign pleadings.
3. You said the Company was an LLC, were you a member of the Company? I have a sneaking suspicion that you signed a Guaranty Agreement, which was at the back of the lease for your company, and you didn't even bother to read the title of the agreement or understand what you were signing.
4. I don't think you can do anything to reverse it. You were served properly, you knew about the complaint and even said so in your post, yet you didn't bother to hire an attorney to help you or even formally respond. Heck you could've even called the Court and they would have told you that you needed to file an answer, but you didn't do that either. My opinion, you owe what you owe because you were too lazy to read the contract and now you were too lazy to defend yourself in Court.
What about this...RULE 60. RELIEF FROM JUDGMENT OR ORDER
c) Default Judgments: Defendant Not Personally Served. When a default judgment shall have been taken against any party who was not personally served with summons and complaint, either in the State of Nevada or in any other jurisdiction, and who has not entered a general appearance in the action, the court, after notice to the adverse party, upon motion made within 6 months after the date of service of written notice of entry of such judgment, may vacate such judgment and allow the party or the partyís legal representatives to answer to the merits of the original action. When, however, a party has been personally served with summons and complaint, either in the State of Nevada or in any other jurisdiction, the party must make application to be relieved from a default, a judgment, an order, or other proceeding taken against the party, or for permission to file an answer, in accordance with the provisions of subdivision (b) of this rule.
sure you can try, they probably won't let you answer, the opposing counsel will go to the Court saying "look, they were served, they knew about it, they called me about it, they sent me letters about it....why should we give them a second chance to do what they should've done the first time? They thought they could get off scott free, which is not the case, they were hoping it would "go away" it didn't. They breached the contract, knew about it, and did nothing about it."
Case over, you lose. What will be your defense? "Uh...sorry?"
All that rule means is that you can ASK the court to let you file an answer, not that you get to. They can still deny your request to file an answer.
If you really owe the debt, be it from your LLC, it is unfortunate that you would want to hide from it behind the LLC. After all, that doesn't seem right does it? You certainly would have taken any gains so it seems fair that you would also be willing to take the losses.
On the other hand, if you don't owe the debt (including your LLC) then you can motion the court to set the judgment aside for failure of service. However, personal service as you are thinking does not mean it must be placed in your hand. It is considered served (on you personally) if it is done in accordance with the provisions mentioned. It does sound like you were served and you failed to properly respond. Sending the Plaintiff a reply does not count unless you also filed the answer with the Court within the time limits.
So there you have it. If it is a legit debt why not just pay for it now as the cost will only increase over time and you will ultimately get to pay for it all. But if the debt isn't legit, not just that it is an LLC, then fight it.
I do not know what this suit is about except that it is with a leasing company for $10,000. Since the demand letter I have requested for a copy of an agreement without any response. I've never leased anything. When funds were taken from my checking account I did call this attorney and asked him what agreement and why he never responded. His response was "I'll have to look into that, I'll have to look into that."
That being the case you need to file a Motion to Vacate with the court and state those reasons. I would attach an affidavit with the motion as it will carry more weight than just some argument in the Motion. If you have never leased anything it is pretty hard to have the debt ..lol. I would also challenge the service just to muddy the water and they will need to provide proof of service if it isn't already on file in the court.
Since there is $10K involved it would be prudent to see an attorney as well.
You should prevail, but getting the $$ back may be another issue. I would also get your bank in the loop pronto. They will have to prove up on the claim so be sure you are on good ground when you start shaking the tree.
I agree with Rex, however, before you file the Motion to Vacate, I would actually go down to the Court house, physically, and look at the file, read all the motions that have been filed and get a copy of everything in the file so you can write and support your reasons to vacate the judgment.
In Arizona, you cannot get a default judgment without proving you are owed the money (in the case of a breach of contract, we would have to produce the actual contract for the judge with the debtors signature on it).
So, if the same holds true in NV Court, you should be able to go to the court and in one of the documents it should have a copy of the leasing contract you supposedly signed. Get all that info, and see where the creditor is wrong.
Also look in the file for a Certificate or Affidavit of Service, and read that....our process server in Arizona always puts the name of the person who accepted service, cya for them in case we (the law firm that hired them to serve a complaint/subpoena) gets nailed for a defective service of process.
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