Help with Motion to Dismiss???

What is the name of your state? FL

I recently won a counterclaim suit because the other party failed to show for court, but they have since filed a "Motion to set aside judgment" using the basis that they (1) were stuck in traffic, and (2) claimed they never received notification of my counterclaim which I had sent to them in 2 different mailings by certifed mail - but they simply refused to accept, knowing what it was.

I would like to ask court to deny this motion to set aside my judgment...

Can somene give me advice as to what to include in a written request to the court?

Frustrated

I just recently had to do the same thing. I basically just explained the exact same thing as you said: tell the court in writing that you tried to contact this person by certified letter but that it was not accepted (mine was accepted and signed for and he STILL is trying to say that he didn't receive anything!) Tell them briefly why you think that this matter should not be set aside. I stated in my letter that I did not feel that I should have to state my side of the case again in writing, as I already won the judgment, so I just asked that the court refer to my court file for the details if they so desired. I ended it saying that I just wanted my money and for the matter to be settled and asked that the court "in all fairness" not set aside this matter.....hope this helps.

To the original poster,

the other party has a valid argument to set aside your judgment. According to your post, they never were served with your counterclaim. Not accepting a certified letter does not mean you served them. they didnt know what was in the letter. when they refused to sign for the documents, you should have had them personally served.

Per crazylori response, when did you ask court to dismiss the Set Aside, and when do you think you will hear back?

Crazylori - If your motion to dismissis is denied, is the procedure that the Court will have then have a hearing on the Set Aside motion prior to issuing an opinion?

Per stephenk response - Yes I understand their claim of not been having properly served. However, one of my mailings ws signed for, as in the case of crazylori - does that help in supporting a motion to dismiss a Set Aside motion based on not having been served?

The original Poster's Certified Letters were NOT sign for . Therefore the Poster should have hired a server ( or ) had someone over the age of 18 not a Party to the action serve them personally, and signed a affidavit of personal Service,have it notarized,and the poster submit it to the court in their motion to dismiss.

There are procedures.

One other item to report here.

Defendant had her mail forwarded out of state, and one of the mailings were signed for a third party (relaitve), which probably does not mean much here.

However, the Clerk of the Court procedure requires they be notifed of any change of address by either party, which never happened here.

I am confident the defendant has been through this before and wise to going "undeground", and you're right, I sould have used a Sheriff deputy, but I wonder if the Court will take into consideration defendants faliure to follow procedure (address change notification), and/or see through this obvious avoidance of service?
Any thoughts?

You can certainly try the therory in your motion, if you can prove the forwarding address and the adress of the third party are the same, but quite honestly PERSONAL Service means Service upon that Person thereself .