smalls claims question

[RRW]

What is the name of your state? Massachusetts.


I recently found out there is a judgment against me. And I know for a fact that I was not served. However this is a small claims case, and I do not know what measures to undertake to have the judgment vacated.

If it were under a civil docket then I would have no problems getting it vacated.

As I understand that small claims is very different from civil cases. The amount in the judgment is so little that it wouldnt qualify to be transferred to a civil docket. The amount i believe has to be $2000 and up. I may be all off here. But figuring I could use some insight on this.


thanks!

 

[I AM ALWAYS LIABLE]

What is the name of your state? Massachusetts.


I recently found out there is a judgment against me. And I know for a fact that I was not served. However this is a small claims case, and I do not know what measures to undertake to have the judgment vacated.

If it were under a civil docket then I would have no problems getting it vacated.

As I understand that small claims is very different from civil cases. The amount in the judgment is so little that it wouldnt qualify to be transferred to a civil docket. The amount i believe has to be $2000 and up. I may be all off here. But figuring I could use some insight on this.


thanks!

My response:

When did you move; i.e., What date?

What is the date of the Cause of Action?

What was the case about?

In what State(s) did it all begin and end?

IAAL

 

[RRW]

Never moved. I lived where I live now before they filed their claim. They served it to a address in another part of the state.

The case is about a money judgment or debt of some sort. I think its a debt collector who bought a debt from somewhere. God only knows where they got that address from.

If you are referring to the date they filed their claim i think it was in 2001. I found out about it because the county sheriff levied upon my real estate.

The state has always been Mass.

 

[RRW]

I do know that this is a lack of service.

If it were a civil case, I would have filed a 60 (b) motion to vacate for lack of service.

But small claims are under different rules.

 

[JETX]

Actually, without actually reviewing the case file to see what, if any, notice was made and where, your assumptions as to the validity of this judgment could be far off.
Massachusetts Rules of Civil Procedure, Rule 4, does allow alternate service in certain cases:
(d) Summons: Personal Service Within the Commonwealth. The summons and a copy of the complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:
(1) Upon an individual by delivering a copy of the summons and of the complaint to him personally; or by leaving copies thereof at his last and usual place of abode; or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by statute to receive service of process, provided that any further notice required by such statute be given. If the person authorized to serve process makes return that after diligent search he can find neither the defendant, nor defendant's last and usual abode, nor any agent upon whom service may be made in compliance with this subsection, the court may on application of the plaintiff issue an order of notice in the manner and form prescribed by law.

Contact the court where the judgment was rendered and get a copy of the 'notice of service', the summons and the complaint. Then, if the service was not done as required by law, then file a "Motion to Set Aside" with the court.

 

[RRW]

1. I didnt think Small Claims cases fell under the Mass Rules of Civil Procedure. I thought Civil cases fell under those rules.

2. I have seen the case file. And am 100% positive the address the summons/complaint was served to was in "fact" not any place I have lived or used as a mailing address.

3. Small claims rules are funny for vacating a judgment. For instance the judgment was entered 3 years ago. The rules (small claims) only allow a year to vacate.

I have yet to see something in the small claims rules that apply to my situation. Under mass rules of civil procedure rule 60 (b) 1,2, and 3 allows a year as well. But under 60 (b) 4,5,and 6 there is no time limit. Which I can easily move to vacate.

I guess I have to try to see if I can have the small claims transferred to a civil docket. Then move to vacate under 60 (b) (4). I know "definately" that I was NOT served at all. That is not where my problem is. My problem is trying to vacate a 3 year old judgment under small claims rules. Its alot work to tranfer to a civil docket.

I wanted to see if someone knew a back door way to get a judgment vacated under the small claims rules.

 

[RRW]

This is the "Small Claims" relief rule.

Rule 8
RELIEF FROM JUDGMENT OR ORDER

Within one year of the date of judgment the court may, upon a party's application and after notice to the other party in such form as the court deems appropriate, vacate or grant relief from any judgment or order, including an order of dismissal under Rule 7(b), entered under these Rules for want of actual notice to a party, for error or for any other cause that the court may deem sufficient, and may supersede execution. The court may also order the repayment of any amount collected under such judgment or order, and any action by the court may be made conditional upon the performance of any reasonable condition, including any reasonable expenses incurred by the other party.


This is Mass R. Civ. Pro relief rule.

RULE 60. RELIEF FROM JUDGMENT OR ORDER

(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

(b) Mistake; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b), (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. Writs of review, of error, of audita querela, and petitions to vacate judgment are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.