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Can I cancel a default judgement 2 years old if I was never served?

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illuminotme

Guest
I recently received documents explaining that I had been sued in the US Dist Court for the Northern Div of Texas, Dallas Division. I was never served complaint, summons, or any other notice that I was being sued. Those documents were served in error to a business that was in competition with me at that time. I lost by default. I never knew I was being sued. I am currently filing a motion to set aside the default order on the grounds that I was not properly served with the summons and complaint. My problem is that it has been over two years since this default judgement was entered. I was never served! I never knew I was being sued! Even though it has been two years since, is there any way I can go back and defend myself? Is there any way to make the Court dismiss this record?
 


I AM ALWAYS LIABLE

Senior Member
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by illuminotme:
I recently received documents explaining that I had been sued in the US Dist Court for the Northern Div of Texas, Dallas Division. I was never served complaint, summons, or any other notice that I was being sued. Those documents were served in error to a business that was in competition with me at that time. I lost by default. I never knew I was being sued. I am currently filing a motion to set aside the default order on the grounds that I was not properly served with the summons and complaint. My problem is that it has been over two years since this default judgement was entered. I was never served! I never knew I was being sued! Even though it has been two years since, is there any way I can go back and defend myself? Is there any way to make the Court dismiss this record?<HR></BLOCKQUOTE>


My response:

Did you not see Tracey's response to you on this subject, dated April 18, 2000? It's probably too late to Set the Default aside however. Usually, a default can be set aside up to 6 months after entry. After that, it's set in granite.

IAAL



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By reading the “Response” to your question or comment, you agree that: The opinions expressed herein by "I AM ALWAYS LIABLE" are designed to provide educational information only and are not intended to, nor do they, offer legal advice. Opinions expressed to you in this site are not intended to, nor does it, create an attorney-client relationship, nor does it constitute legal advice to any person reviewing such information. No electronic communication with "I AM ALWAYS LIABLE," on its own, will generate an attorney-client relationship, nor will it be considered an attorney-client privileged communication. You further agree that you will obtain your own attorney's advice and counsel for your questions responded to herein by "I AM ALWAYS LIABLE."

 
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illuminotme

Guest
Yes, I saw Tracey's 4/18/00 reply. I am going to go ahead and file the motion tomorrow with the court clerk. It just does not seem fair that somebody can sue someone else and win by default, simply by botching the issuance of service on purpose. Then they contact you after it's too late to change the ruling and say "looky what we did, ha! Ha!" This is the Lyons Partnership (BARNEY) doing this to me and to hundreds of other children's entertainers all over the country. The really sad thing about all this is that the person I bought this purple dino costume from included with it a letter from the Lyons Partnership in response to photos of the costume she had sent them. The letter they sent her said the costumes were not close enough to be confused with Barney. The letters gave written consent to use the costumes! I never was infringing! I quit running the business that used the purple dino costume in 1996 when I graduated from college. I never heard a thing from the Lyons until 2 weeks ago when I received a "motion to award damages" saying that I owe the Lyons hundreds of thousands of dollars!!! I can't even afford a lawyer. This is not fair! There has to be some way I can go back and get a fair trial, or sue them back or something.
 

I AM ALWAYS LIABLE

Senior Member
My response:

Have you moved between then, and now?

Listen, I'm on your side in this matter, especially after your last post. First, go to the courthouse, get the file from the clerk and review it. Find the "Proof of Service" for the complaint and any Amended Complaints, and have the Clerk make you a "Certified Copy" of each. If there's anything amiss, you can use that as one of your Exhibits to your motion. Like I said, I think it may be too late, but nonetheless, I think that all of us who are following your thread would like to read your motion once it's done, and help you with tips and corrections. So, post it here and we'll take a look and give you suggestions.

IAAL

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By reading the “Response” to your question or comment, you agree that: The opinions expressed herein by "I AM ALWAYS LIABLE" are designed to provide educational information only and are not intended to, nor do they, offer legal advice. Opinions expressed to you in this site are not intended to, nor does it, create an attorney-client relationship, nor does it constitute legal advice to any person reviewing such information. No electronic communication with "I AM ALWAYS LIABLE," on its own, will generate an attorney-client relationship, nor will it be considered an attorney-client privileged communication. You further agree that you will obtain your own attorney's advice and counsel for your questions responded to herein by "I AM ALWAYS LIABLE."

 
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illuminotme

Guest
Thank you, IAAL, Tracey and all for your help.

I have not yet filed the movement. Here it is:

(Obviously, the correct formatting will not come through on this posting. I will make sure it is correct before I file it. I will also have the clerk make official copies of the items mentioned and attach them when I file.)

MOTION TO SET ASIDE DEFAULT
JUDGEMENT AND PERMANENT INJUNCTION
AGAINST DEFENDANT CHRIS ELKINS

I, Defendant [my name], file this Motion to Set Aside Entry of Default Judgment and Permanent Injunction on the grounds that I was never served summons.

On April 10, 2000, I, [my name], received from Attorney [atty's name] , a copy of the Motion For The Entry Of Default Judgment And Permanent Injunction that was filed with this Court October 27, 1999. This was the first communication of any sort alerting me to the fact that Lyons Partnership was suing me. I also received an appendix to the same. Within the appendix are photocopies of the returns of service used by [atty's name] as evidence of proper service of summons and complaint. These photocopies clearly show that the summons was addressed to [my name]d/b/a [name of similar business not assotiated with me]. I have never been a part of [name of similar business not associated with me]. Consequently, [owner of similar business], the owner of [name of similar business not assotiated with me], signed for my summons. When these items, the complaint and summons, were mailed, my correct address was [my correct address at the time of summons]. These documents, the complaint and summons, were addressed to: [my name], d/b/a [name of similar business not assoctiated with me], f/k/a [name of my old business-no longer in business], [incorrect address for my old business], and [my name] d/b/a [name of similar business not associated with me] f/k/a [name of my old business, no longer in business], [address of similar business not associated with me]. Neither of these addresses have ever been correct addresses for me. I have never done business as [name of similar business not associated with me]. I have no part, nor have ever had any part of [name of similar business not associated with me]. [Name of owner of similar business] has never been a business partner of mine. She was not authorized to sign for my mail. My correct address could have easily been ascertained, with minimal effort. Therefore, I, [my name], declare that on October 27, 1999 Attorney [atty's name] fraudulently represented to THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION, that summons had been properly served to me when it had not been.
Because of this defect in service, I wish to have the default judgment entered against set aside.

Respectfully submitted,
[my name and contact information]

 

I AM ALWAYS LIABLE

Senior Member
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by illuminotme:
Woops! So you know my name now. That's ok!<HR></BLOCKQUOTE>

My response:

This is a good beginning. Now, you need to attached your Points & Authorities (Case law, Statutory law, etc.) along with your arguments how each applies to your issue. Next, you'll need a factual declaration (No opinions or argument) stating how, on information and belief, this all happened to you. Also, you'll need to state that you never received process from anyone, and that the "other" business owner never told you about this matter.

Good job. Let's see the rest when it's done.

Any other comments from anyone? Alawyer? Tracey?

IAAL



------------------
By reading the “Response” to your question or comment, you agree that: The opinions expressed herein by "I AM ALWAYS LIABLE" are designed to provide educational information only and are not intended to, nor do they, offer legal advice. Opinions expressed to you in this site are not intended to, nor does it, create an attorney-client relationship, nor does it constitute legal advice to any person reviewing such information. No electronic communication with "I AM ALWAYS LIABLE," on its own, will generate an attorney-client relationship, nor will it be considered an attorney-client privileged communication. You further agree that you will obtain your own attorney's advice and counsel for your questions responded to herein by "I AM ALWAYS LIABLE."

 
T

Tracey

Guest
I agree with IAAL, excellent start. I'd also like your motion/memo in support to answer these questions:

"_How_ could the atty easily have ascertained your correct address?" Were you listed in the phone book? Have you lived at the same place since the suit began? The atty obviously found you this time - is all pertinant info still the same? Do any of the court papers indicate that atty had your correct home address but chose to serve you at work?

"Was the service invalid on its face?" Since service must be made to you personally or to a resident of your home 'of suitable age and discretion', should atty have known that he couldn't serve you by serving some random warm body at the place where he thought you worked? Corps can be served via their designated agents and officers; sole proprietorships are not legal persons and cannot be served via officers or employees (unless the employee is an actual agent of the SP). Read federal rule of civil procedure (F.R.Civ.P.) 4.

"What makes atty fraudulent rather than just stupid?" Do you have any proof that he actually knew your address back then and therefore knew or should have known that service was improper? How did he find you this time? Does case law say that a return of service is per se invalid if it says "I served an associate/employee of a sole proprietor at his alleged place of business?" If the ROS is per se invalid, did atty commit fraud as a matter of law by averring to the court that service was properly effected?


Looking forward to the next draft. :)

Tracey

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This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.

[This message has been edited by Tracey (edited April 25, 2000).]

[This message has been edited by Tracey (edited April 25, 2000).]
 
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illuminotme

Guest
In a nutshell: I worked for a costumed character business that the Lyons had served a cease and desist letter to. I was simply one of many entertainers it occasionally hired out for kids parties. The owner changed the costumes, sent in photos, then got a letter back saying the costumes were OK for her to use, legally. That was in early 1994. In June of 1994 I purchased the business from her and she moved out of state. In February of 1995 I got a draft complaint along with an out of court settlement offer that was addressed to the previous owner and forwarded to her California address. She had mailed it to me, along with instructions of how to respond to it. I responded, stating that I had recently purchased the business from the prior owner and had a letter from them saying the costumes were not infringing. I included my correct business address and a telephone number and sent it, by certified mail, to the originator of the draft complaint letter. I said for them to please call me if there were any questions or concerns. I still have the receipt. It was signed 3-17-95. I never heard back from them, until 4/10/2000, in the documents that said I had been sued in 1998. I personally had sent them my correct address and phone number by certified mail! I have proof that the Lyons had my correct address, but did not use it. It is true that I have since, closed shop (shop was my apartment) and moved in June of 1996. I did not move out of the area, and I had my mail forwarded. My phone number has always been listed and active. Had the address I sent them been used, my mail would have been properly forwarded to me or sent back to them. Meanwhile, the person I bought that business from moved back to town and opened up shop again, but under a different business name. The Lyons found out she was back and the name of her new business. According to the papers I was sent in April of 2000, the Lyons’ lawyers were sending information to my name, but at her new business address. They tried to send me something at my old residence address, but because they did not include my apartment number, and put her business name on it, it got forwarded to her business address. She did not forward it to me. She did call and leave me a message saying that the Lyons had sent her more threats. But since I had not heard from the Lyons, I thought it was just business between the Lyons and her. She certainly did not tell me there was a summons in there for me! And, seeing now what was sent to her, the Summons part was not clearly marked, was written in tiny letters with no clear heading and was hidden in the midst of legal papers that were thick as a phone book. Nowhere was there a document clearly marked “Summons”, but the intentions were otherwise indicated if you read very closely. I wonder if she even realizes she was served!

So, to keep this as simple as possible so that I can get this motion entered into the Court ASAP, I need to:

1. Type out the motion to set aside default judgement based on defect in service.
2. Attach certified copies of “proof of service” return receipts showing incorrect address and signature.
3. Attach copies of my letter giving my correct address along with my proof of receipt.
4. Make reference to pertinent rules regarding proper service.
5. Make reference to pertinent rules regarding setting aside default due to defective service.
6. Include a factual declaration. (?) Would that be just a simple explanation similar to the above, but with nothing but unarguable facts that can be proven with the evidence I have attached?

I don’t have to make references to similar cases and judgements, do I, just to file this motion?

I’m glad you asked about the address issue. I forgot that I had proof that I had sent them my correct address!! So…I guess I can say it was fraudulently represented to the court that I was properly served because I have proof that they had my correct address and proof that they did not use it. Should I just leave that out? The fraudulent part? I’m sure it was more likely stupidity and not intentional.

Thanks again for your help, everybody!
 
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illuminotme

Guest
Note-My business address was a PO box AND my home address. My d/b/a was listed with my full home address as the business address. I gave the Lyons my PO Box only on the certified letter. Nevertheless, they knew how to contact me.
 

I AM ALWAYS LIABLE

Senior Member
You've got it !! 1 through 6. Remember to refer to your Exhibits in your discussion and arguments in your papers; for example: "As the court will notice, at Exhibit "A", attached hereto and incorporated herein by this reference, the Plaintiff failed to serve their intitial Summons and Complaint on me at my residence, despite the fact information concerning the same was previously in their possession."

You're doing better, and have a better handle on this thing than most of my students would. Also, remember to add a proof of service to the end of your Motion with their address, and send them a copy of the motion (they'll have a chance to oppose it).

I wish I had forms for you that you could use in Texas; it would make things easier for you. But, alas, I don't.

Remember, when you attach your Exhibits, label each at the bottom, and on your "separator sheets," attach a tab with each Exhibit letter; e.g., Exh. "A", Exh. "B", etc. (next to each other, and not on top of one another).

File the original with the court (ask the court if they want it two-hole punched and with or without a "blue back."

Have the Clerk "conform copy" stamp a copy of your first page, and make sure you make a complete copy for yourself.

Post a completed draft here for final check for corrections, and completeness before filing.

You know, I think with your facts, you just might have a better than 50/50 chance with this thing. If not, you've got great grounds for an appeal.

IAAL

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By reading the “Response” to your question or comment, you agree that: The opinions expressed herein by "I AM ALWAYS LIABLE" are designed to provide educational information only and are not intended to, nor do they, offer legal advice. Opinions expressed to you in this site are not intended to, nor does it, create an attorney-client relationship, nor does it constitute legal advice to any person reviewing such information. No electronic communication with "I AM ALWAYS LIABLE," on its own, will generate an attorney-client relationship, nor will it be considered an attorney-client privileged communication. You further agree that you will obtain your own attorney's advice and counsel for your questions responded to herein by "I AM ALWAYS LIABLE."



[This message has been edited by I AM ALWAYS LIABLE (edited April 26, 2000).]
 
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illuminotme

Guest
Surely this can't be this simple!

I finally decided to fork over ten bucks and download the full copy of the Federal Rules of Civil Procedure from www.law.cornell.edu/rules/frcp/overview.htm. (As techies say, RTFM!) I noticed that Rule 4(m) states: If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

The complaint was filed March 4, 1998. I still have not been served. I'd say that qualifies for over 120 days!

No wonder I was having such a hard time finding a provision for those who find out ex-post-facto that they had been sued by default, having not been properly served. This IS the provision! At least it appears to be to me.

So, and tell me if I am wrong, all I need to do is file a Motion For [my] Dismissal Without Prejudice in accordance to Fed. R.C.P.4(m).

By the way...

Since my last post, Barney's lawyer finally sent me acknowledgement that I am not an affiliate of the previous business owner, the one who signed for my summons. He also offered me an out of court settlement agreement. He included a copy of the new Order to Award Damages and etc, from the prior owner in the amount of $139,919.12. Why he sent that to me is a mystery. I guess he was just using it as a threat, as in this is what I can expect, should I not accept his settlement offer of $4669.22, plus an agreement not to sue them back, amongst other things. Gee, that sounds like such a generous offer. Generous to a fool.
 
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I AM ALWAYS LIABLE

Guest
My response:

I got you these forms and some good arguments to make to the court. This is a California case, but the arguments are valid; just substitute Texas law for the Calfornia law. If nothing else, these forms and the arguments will give you more guidence.

IAAL


[Attorney name] [Address] [Telephone number] Attorney for [e.g., Plaintiff], [name] Court, County of [ District] xxxxxx ) No. Plaintiff(s) ) vs. ) MEMORANDUM OF POINTS AND ) AUTHORITIES OPPOSING xxxxxx ) [NAME]'S MOTION Defendant(s) ) [SPECIFY NATURE OF MOTION] ___________________________) Hearing: [date; time] Department: _ Trial Date: [if set] FACTS: [Set forth facts if not accurately provided by moving party]. I. [State points of law, authorities, and argument]. WHEREFORE, [e.g., plaintiff], [name], respectfully requests that [name]'s motion [specify nature of motion] be denied. Date: Respectfully submitted, ____________________ [Typed name] Attorney for xxxxxx


TO PLAINTIFF'S AND THEIR ATTONEY OF RECORD:

NOTICE IS HEREBY GIVEN that on May 28, 1999, at the hour of 9:30 a.m. or as soon thereafter as the matter may be heard in Department "64" of the Orange County Superior Court located at 700 Civic Center Drive West, Santa Ana, California, 92702, Defendant Lee Madman, Ph.D. will and hereby does move the court for an order setting aside the default entered against her on March 24, 1999, and to allow the filing of her answer and affirmative defenses.

The grounds for this motion are the Defendant did not have notice to defend the action, the entry of default was the result of surprise to Defendant, and Defendant was not served with a statement of damages before the default was entered.

The motion is brought pursuant to Cal.Civ. Proc. Code 473(b) and 473.5, and is supported by the attached memorandum of points and authorities, the declaration of Lee Madman, Ph.D., the declaration of Baljeet Khurana, M.D., the declaration of Jeffrey B. attorney, the records and files herein, and by such other evidence, both oral and documentary as may be offered at the time of the hearing.


Dated : April 22, 1999

_________________________________


MEMORANDUM OF POINTS AND AUTHORITIES

I.
STATEMENT OF THE FACTS

Summons and Complaint were allegedly served on Lee Madman, Ph.D. on January 28, 1999 by an unregistered process server. Defendant Lee Madman, Ph.D. was never served a Summons or Plaintiff's Complaint. Madman Decl...Par. 3. Someone came to Dr. Madman's office during the month of January 1999, but never left any papers or documents. Madman Decl...Par.4, Khurana Decl...Par.4. On or about March 19, 1999 Dr. Madman received a Request for Entry of Default. Madman Decl...Par. 11. On March 19, 1999, Dr. Madman forwarded a copy of the Request for Entry of Default to her insurance carrier. Madman Decl...Par. 11. On March 24, 1999 a default was entered against Defendant Lee Madman, Ph.D., the same day Dr. Madman's carrier assigned the matter to the office of Mark Schreiber-Attorney at Law. Dr. Madman never received a statement of damages from Plaintiff. Madman Decl...Par. 12.

On March 24, 1999 Defendant Madman served her Answer and Affirmative Defenses of Plaintiff. On March 25, 1999 Defendant Madman, Ph.D. attempted to file her Answer and Affirmative Defenses which were rejected by the court for the reason that a default had been entered.

The default entered was a surprise to both Defendant Lee Madman, Ph.D. and her Defense counsel for the reason that Defendant Madman did not know there was a Complaint filed against her.


II.
ARGUMENT

A. THE DEFAULT SHOULD BE SET ASIDE FOR THE REASON THAT DEFENDANT Madman DID NOT HAVE ACTUAL NOTICE OF THE ACTION


CAL.CIV. PROC.CODE 473.5(A) provides : When service of a summons has not resulted in actual notice to a part in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. * * *

Actual notice means genuine knowledge of the party litigant and does not contemplate notice imputed to a principal from an attorney's actual notice. Rosenthal v. Garner (1983) 142 Cal. App. 3d 891, 895. In Olvera v. Olvera (1991) 232 Cal. App. 3d 32, the court stated that any form of substituted or constructive service is on may occasions unlikely to result in actual notice. "Thus, [C.C.P.] section 473.5 reflects the understanding that if any form of service of summons does not result in actual knowledge, fundamental fairness may require that a subsequent default be set aside." Id. at 40.

In Kodiak Films, Inc. v. Jensen (1991) 230 Cal. App. 3d 1260, Plaintiff purported to effect substitute service on a "girlfriend, competent member of household" at an address at which defendant had not lived for several months. The court granted defendant relief to set aside the default for the reason that defendant did not receive actual notice in time to defend the action, brought the motion for relief within a reasonable time, and the lack of notice was not caused by his avoidance of service of inexcusable neglect.

In the case at bar, Dr. Madman was never personally served with the Summons or Complaint, nor did she receive a copy of the Summons or Complaint in the mail. Dr. Madman was told that someone was looking for her at her office, but no one at her office is designated to accept service for her. Dr. Madman's lack of actual notice in time to defend the action was not caused by her avoidance of service or inexcusable neglect. During the end of January and beginning of February 1999, Dr. Madman was ill and out of her office. Dr. Madman regularly sees patients at her Santa Ana office in the atfernoons on Tuesdays and Thursdays. Dr. Madman did not avoid service.

In the case at bar, as in Kodiak Films, Inc. v. Jensen, Plaintiff allegedly purported to effect substitute service on a co-worker, Dr. Baljeet Khurana, at Dr. Madman's Santa Ana office. Dr. Khurana did bot accept any packages or envelopes for Dr. Madman. Khurana Decl...Par.3 Dr. Khurana is not the person in charge of the office nor is she allowed to accept service for Dr. Madman. Khurana Decl...Par.5. No substituted service was effected, and Dr. Madman did not have actual notice in time to defend the action.

Dr. Madman received in the mail on or about March 19, 1999 Plaintiff's request for entry of default. Dr. Madman notified her insurance carrier that day. Dr. Madman did not have actual notice of the action at the time she recieved Plaintiff's request for entry of default. On March 24, 1999, Dr. Madman served her Answer and Affirmative Defenses on Plaintiff. On that same day, Plaintiff had default entered against Dr. Madman.

Since Dr. Madman did not have actual notice in time to defend the action, which was neither caused by avoidance of service nor by inexcusable neglect, the court should set aside the default.

'It is also well established that it is the policy of the law to bring about a trial on the merits whenever posible, so that any doubts which may exist should be resolved in favor of the application, to the end of securing to a litigant his day in court and trial upon the merits'...'Even in a case where the showing under section 473 is not strong, or where there is any doubt as to setting aside of a default, such doubt should be resolved in favor of the application.' Rosenthal v. Garner (1983) 142 Cal. App. 3d 891, 898. ( Italics in original )

Dr. Madman lacked actual notice of the action, and the court should enter an order vacating the default and allowing filing of the Answer and Affirmative Defenses, on such terms as may be just.


B. THE DEFAULT SHOULD BE SET ASIDE AS IT WAS THE RESULT OF SURPRISE TO DR. MADGAN


Cal. Civ. Proc. Code 473(b) provides, inter alia: The court may, upon any terms that may be just, relieve a party or his or her legal representative from judgement, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertance, surprise,
 

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