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Hearing on Defendant's Motion to Vacate Default Judgment for Improper Service

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musicnerd1

Junior Member
What is the name of your state (only U.S. law)? Maryland


I am the plaintiff and had a default judgment entered in my favor on 2/2/15. The defendant who WAS properly served by a hired process server filed a motion to vacate the judgment on the following grounds: "I was not properly served and had no notice of the lawsuit... never received any notice of the case." Despite there currently being an affidavit of service filed with the court, he was granted a hearing set for June 29, 2015.

I am debating having the process server come to testify during the upcoming hearing on this motion. The amount she wants for compensation of time and expenses is more than I want to pay, and I wonder if I'd be fine without her there, given the fact that the defendant would be under oath in court to tell the truth. I am surprised the hearing was granted at all...I don't know what more the court needs beyond the affidavit.

Available evidence:
1. Affidavit of Service
2. Business emails from server showing time and location of completed service and previous service attempts
3. I had a phone conversation with the server herself who told me the defendant became belligerent and tried to chase her with the papers to give them back after he was served (Although, I imagine this would be hearsay evidence if I tried to use it, wouldn't the defendant be compelled to speak truthfully in court about the events surrounding this case?)

Thanks!
 


latigo

Senior Member
What is the name of your state (only U.S. law)? Maryland


I am the plaintiff and had a default judgment entered in my favor on 2/2/15. The defendant who WAS properly served by a hired process server filed a motion to vacate the judgment on the following grounds: "I was not properly served and had no notice of the lawsuit... never received any notice of the case." Despite there currently being an affidavit of service filed with the court, he was granted a hearing set for June 29, 2015.

I am debating having the process server come to testify during the upcoming hearing on this motion. The amount she wants for compensation of time and expenses is more than I want to pay, and I wonder if I'd be fine without her there, given the fact that the defendant would be under oath in court to tell the truth. I am surprised the hearing was granted at all...I don't know what more the court needs beyond the affidavit.

Available evidence:
1. Affidavit of Service
2. Business emails from server showing time and location of completed service and previous service attempts
3. I had a phone conversation with the server herself who told me the defendant became belligerent and tried to chase her with the papers to give them back after he was served (Although, I imagine this would be hearsay evidence if I tried to use it, wouldn't the defendant be compelled to speak truthfully in court about the events surrounding this case?)

Thanks!


Simple solution: You serve the neck-bowed process server with a witness subpoena. Just make sure that you file the proper return of service of the subpoena. Then if he doesn't show up, the judge will send the sheriff after him.

Next: The judgment debtor has already sworn under oath that he was not personally served. Is it reasonable to expect that he will recant that sworn oath in the witness chair?

Also, in the guy's affidavit does he allege that he has a meritorious defense to your lawsuit? Did he attach to his motion a proposed answer to the complaint setting forth allegations of facts that if proven would support a ruling denying your claim?

I can't speak for Maryland's Rules/Code of Civil Procedure, as I'm experiencing difficulty finding them, but many states require the above. As it makes no sense to set aside a judgment only to have it re-entered upon a plenary trial. So call and ask an experienced Maryland trial lawyer.

But don't succumb to a state of shock if the court grants the motion. It would only be in furtherance of the universal policy that cases should be heard on their merits rather than go by default.

And if it comes down to whom to believe - the defendant or the process server, guess what? A tie game and you are into overtime.
 

musicnerd1

Junior Member
Simple solution: You serve the neck-bowed process server with a witness subpoena. Just make sure that you file the proper return of service of the subpoena. Then if he doesn't show up, the judge will send the sheriff after him.

Next: The judgment debtor has already sworn under oath that he was not personally served. Is it reasonable to expect that he will recant that sworn oath in the witness chair?

Also, in the guy's affidavit does he allege that he has a meritorious defense to your lawsuit? Did he attach to his motion a proposed answer to the complaint setting forth allegations of facts that if proven would support a ruling denying your claim?

I can't speak for Maryland's Rules/Code of Civil Procedure, as I'm experiencing difficulty finding them, but many states require the above. As it makes no sense to set aside a judgment only to have it re-entered upon a plenary trial. So call and ask an experienced Maryland trial lawyer.

But don't succumb to a state of shock if the court grants the motion. It would only be in furtherance of the universal policy that cases should be heard on their merits rather than go by default.

And if it comes down to whom to believe - the defendant or the process server, guess what? A tie game and you are into overtime.



Thanks for your reply!

There was no Affidavit submitted with the defendant's motion claiming any defense to the lawsuit (he has none). It was simply stated that he was not aware of the case and not properly served. He didn't swear under oath that he wasn't served, he filed a motion saying so....please correct me if I'm wrong, but I didn't think filing a motion was a sworn statement.

That aside, I guess the issue for me is, I know this guy is a real piece of work and I suspect that this motion was filed as a hail mary...I don't even know that he will show up to the hearing, nor what he intends to say happened. But is the only way out getting the process server in the court room? If I can avoid that it would be ideal, but I'm not certain it's worth the risk of drawing this out even longer than it's already been.
 

latigo

Senior Member
Thanks for your reply!

There was no Affidavit submitted with the defendant's motion claiming any defense to the lawsuit (he has none). It was simply stated that he was not aware of the case and not properly served. He didn't swear under oath that he wasn't served, he filed a motion saying so....please correct me if I'm wrong, but I didn't think filing a motion was a sworn statement.

That aside, I guess the issue for me is, I know this guy is a real piece of work and I suspect that this motion was filed as a hail mary...I don't even know that he will show up to the hearing, nor what he intends to say happened. But is the only way out getting the process server in the court room? If I can avoid that it would be ideal, but I'm not certain it's worth the risk of drawing this out even longer than it's already been.
Such a motion should be supported by a sworn affidavit. But then like yourself you are dealing with a pro se litigant.

Whether under Maryland's Rules the application must include a proposed answer, or recite a set of factual circumstances which on their face would constitute a meritorious defense to your claim, again I can't say. But don't expect him to change his tune in court. In fact he may very well not have received notice of the proceedings. Process servers have been known to lie as well. And it is not entirely uncommon that they serve the wrong individual.

Just show up in court and accept the hand the judge deals you. And regarding "drawing this out", tell us what efforts you have made to execute on you judgment over the past 4 and 1/2 months. You are probably beating a dead horse anyway.
 

musicnerd1

Junior Member
Re:

I am 99% positive he was served and aware of the case, with the 1% doubt due to the fact that I didn't see it with my own eyes. Prior to any of this I sent a Letter of Demand indicating that I had plans to take legal action if money owed to me was not paid, so this is by no means out of the blue.

In my conversation with the server regarding the claims made in the defendant's motion, she described the defendant to ensure we were talking about the same person, and it was obvious that she had the right person. I also sent photos prior to service, so there was no mistake. There were multiple attempts made to complete service and on the final and successful attempt, I'm told he became belligerent to the point where she said she felt threatened.

As for my efforts to collect, I'll add that there are actually two defendants and I attempted to garnish a bank account of the other defendant (B) using the account info on the check I received from him, but there were no other assets held at that particular bank. Since then I didn't have any other way to locate them for a while (they moved) until defendant A filed this motion and at that point I had an address to work with. I don't have any info regarding employment or banking info, so going forward I will probably have to use interrogatories in aid of execution.
 

musicnerd1

Junior Member
For the record, the server and I came to an agreement regarding compensation, so she will be there to testify. Wish me luck with these game-playing a-holes.
 

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