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Can I appeal an improper "default judgement"?(II)

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I recently received certified mail stating that I had been sued and that the judgement was ruled in favor of the plaintiff by default. I never received a complaint or summons! Because these original letters of service and summons were sent to an invalid address, the post office forwarded them to a business that I am not associated with. Somebody, other than myself, signed for and took delivery of them. Had I received them, I would have responded to them, and shown up in court, if need be. I find it odd that the lawyer who "served" me could not find my correct address until AFTER all was said and done. Who do I need to contact in order to request an appeal of this judgement placed upon me? Unfortunately, I cannot afford a lawyer. I have nothing that can be taken from me, even if I lost, so It doesnt scare me to defend myself. I really don't think any lawyer is going to work for free for me. Still, I feel I'm innocent and wish to have my day in court. What should I do? How do I contact that court? How do I request an appeal?

This Judgement took place in the US District Court for the Northern District of Texas, Dallas Division



You said US District Court, so I assume you were sued in federal court, not state court.

The federal rules of civil procedure include:

Rule 55. Default

(a) Entry.
When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default.

(b) Judgment.
Judgment by default may be entered as follows:

(1) By the Clerk.

When the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and is not an infant or incompetent person.

(2) By the Court.

In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party's representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the United States.

(c) Setting Aside Default.
For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).

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) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc.
On motion and upon such terms as are just, the court may relieve a party or a party's 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 grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., § 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, 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.

So, you should file a motion to set aside the default order on the grounds that you were not properly served with the summons and complaint and the atty knew this because someone else signed the return receipt! The rules say that you have to be served personally, or that you can be served at your home by leaving the summons with a resident of suitable age. Service by mail usually has to be sent to your residence. You cannot be served by mail at work. So, you argue the atty fraudulently represented to the court that the summons was properly served when it wasn't. File the motion soon, as time is running out.


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


THANK YOU TRACEY! That was the info I have been digging for!

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