Was never properly served - default judgement

[justme4]

What is the name of your state? TX

My wife and I rented a house. We seperated and we both moved out. we moved out one month before the lease was to be over and did not pay the final month rent. The security deposit was the same as the monthly rent, and the landlord kept that.
the landlord filed suit in small claims court. My wife was served at work. I was not. In addition, my name was slightly mispelled on all the court documents I saw.
My wife went to court and fought the landlords claimes of damaged property (which were not true.) What ended up happening is they removed my wife from the case and got a default judgement on me for $3,300.

I recieved a few letters from the court (not certified or served or anything, just plain mail) that I had to pay or else. I did not respond.
A few months went by and they took the money from my saving account. I recieved a letter from my bank stating this fact.

My question - can I do anything about this? If I could go to court and argue the case, I think I would prevail, however a default judgement has been issued. Does anyone know how to appeal? Or how long I have to appeal?
Second, do I have any case to 'vacate the judgement' on grounds of improper service? Or my name being wrong?


Can I do any of the above per se, or would I need to hire an atty.

Thanks for any help

 

[dtown7]

You definitely have a case. You should not need an attorney. In order to have a default judgment removed /overturned you need to prove that the judgment was granted without being given due process. You can type up a letter to request a hearing or notice to vacate. You then have to go to the courthouse and file the paperwork. The fact that they spelled your name wrong is a big deal. That helps your case out a lot. As far as the time frame for the request I'm not sure but the courthouse should be able to tell you. I hope this helps.


Sample Motion to Vacate

IN THE SUPERIOR COURT OF THE STATE OF <YOUR STATE>
IN AND FOR THE COUNTY OF <YOUR COUNTY>

<The Original Plaintiff> Plaintiff,

vs.

<YOU> ,

Defendant.

No. <COURT REFERNECE NUMBER>


MOTION AND DECLARATION TO VACATE JUDGMENT

NOW COMES the Plaintiff, Pro Se and prays this Honorable Court to Deny the Defendant's Motion to Dismiss and Motion for Sanction for the following reasons:

1. Relief requested. The defendant(s) move(s) the court for an order vacating the judgment entered in this action and staying enforcement of the writ of restitution until the motion can be heard.

2. Statement of facts and issues. This motion is based on the following grounds: <Enter your reasons: you weren't properly served, the judgment was entered even though you filed the right paperwork>

Dated: .
______________________________
Defendant(s) (Signature)

Defendant(s) Name (Print)

Address


Telephone Number


DECLARATION

I, <my name>, declare as follows:
1. I am the defendant in this unlawful detainer action.
2. I request that the judgment entered in this action be vacated for the following reasons:
< Give your reasons: A) the collection agency never responded to my request for validation, therefore never giving any proof that the debt was mine under the FDCPA. B) The amount of the debt exceeded the state's usury interest limits>

I certify under penalty of perjury under the laws of the state of <YOUR STATE> that the foregoing statement is true.

Signed in [CITY], [STATE] on [DATE].




__________________________________
Signature


Print or Type Name