Notice to vacate default judgment

What is the name of your state? NJ

I filed a lawsuit against a real estate agent/owner who I claim misrepresented the property I purchased. The summons and complaint were mailed regular mail and certified mail by the court to the real estate office that she owns. The defendant failed to respond to the summons and complaint. I was awarded a default judgment.

The defendant has now filed a motion to vacate default judgment claiming that she never received the summons and complaint and that it was either incorrectly mailed or her employees did not give it to her, and does not conform to the laws of the state. According to the court there is no certified mail receipt with the defendants signature on it.

There are several letters I sent to the defendant asking to discuss this matter outside of the courts, that she did in fact sign for on the certified mail receipt.

I have not hired an attorney up until this point due to the fact that the judgment amount is too low and no one would take the case at a price that made it worthwhile.

5 quesitons:

Is it common legal practice to wait and just file this type of motion after a default judgment is ordered. In my mind this avoids paying for an attorney twice (once for original answer, and then for an appeal). In this case the the appeal deadline has already past (45 days from judgment date in NJ).

Is it common for a defendant to use the failure to deliver summons properly, an excusable cause, claiming never to have received a summons?

Is it likely that the court would deny the motion based on the fact that the defendant makes no claims in the motion to prove that she did not receive the summons other than the "dog ate my homework" claim?

How do I file an objection to the motion? Do I just send a written response back to the court and parties that filed the motion. It is my belief that she purposely avoided filing an answer, how do i say that without calling her a liar, and be able to convince the judge she is lying.

http://www.co.monterey.ca.us/court/vacate_a_default_judgement.html


If the reason you did not go to court was because you were not served with a copy of the claim, you have up to 180 days after you find out about the Default Judgment against you to file the Notice of Motion to Vacate Judgment form.

From what I read , you must have paid the Court's Clerk to serve the other Party .


Other Topics:
What to Do If You Are Suing Checklist



How do I serve someone?
There are different ways to serve someone


Service by Mail: The court clerk sends a copy of the claim to the defendant. The defendant must sign and return a receipt to the clerk. There is a fee for this type of service.

You will most likely be going to the Hearing to Vacate.

I would argue at that Time , the defendant has not proved they DID-NOT get served.

1) It is up to them to send the Court the Receipt .
2) Neither Notice Of Summons was Returned to sender .

How were these Notices Addressed ?

Was the Personal Name of the Defendant written on the Envelope and Letter TO: ?

In any event be prepared to have the case heard over if the Judgment is vacated .

"Is it common legal practice to wait and just file this type of motion after a default judgment is ordered."
*** Yes.

"In this case the the appeal deadline has already past (45 days from judgment date in NJ)."
*** Appeal has nothing to do with it. Simply, they are claiming that you didn't notify them of the lawsuit filing in accordance with state law. If correct, then the judgment simply 'vanishes'.

"Is it common for a defendant to use the failure to deliver summons properly, an excusable cause, claiming never to have received a summons?"
*** Absolutely.

"Is it likely that the court would deny the motion based on the fact that the defendant makes no claims in the motion to prove that she did not receive the summons other than the "dog ate my homework" claim?"
*** The defendant doesn't have to prove that she didn't get the notice. YOU must prove that the defendant was served as required by law.

"How do I file an objection to the motion? Do I just send a written response back to the court and parties that filed the motion. It is my belief that she purposely avoided filing an answer, how do i say that without calling her a liar, and be able to convince the judge she is lying."
*** You can file a written objection if you want, but you could also ask the court to just set a hearing date on the issue (if they don't on their own).

At the hearing, all you have to do is provide the court with PROOF that she was notified as required by your state laws and that she is the proper entity. If you do that, the court should allow the judgment to stand.

thanks

thanks for the response, i found the NJ ruling which basically says I have no grounds to object to the motion to vacate.

all the defendant has to do is fail to sign the certified letter or refuse to sign it and she's home free.

why does the court offer a delivery service, then fail to make delivery in person, just rely on the mail, when it is so immediately possible for the person to ignore the delivery? it seems to be that the service is flawed from the start.

to me it seems a complete waste of time for all involved. I send a complaint, I anticipate an answer, no answer comes, i get a default judgment, go to court to provide evidence for my losses and now have to start over again?

strange way the laws and court work.