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  1. #1
    Join Date
    May 2011
    Posts
    3

    Default Improper Service of Process

    My question involves collection proceedings in the State of: Utah

    I'll describe this story in a chronological order and stick to the point.

    May 6th , 2011: a constable leaves me a card asking me to contact her. I email her and schedule a time to get the court documents she wants me to receive.

    May 11th, 2011: I receive the court document which is a Motion And Order in Supplemental Proceedings. So I discover I had a default judgement entered against me on October 19th of 2010 in the amount of $892 to be paid to a collection agency "Utah Collex" which purchased an account I had with a dentist.
    First thing I think of : I never got the summons and complaint !

    May 12th, 2011: I contact the Collection Agency asking them for proof of Service , they tell me service was rendered August 27th, 2010 at my previous address.

    May 13th, 2011: I go to the court and get copies of the case papers, I discover the following
    1. Case was filed in small claims court on August 24, 2010.
    2. In the Affidavit of Service , the server states that
    "I received the within and hereto annexed , Small Claims Affidavit and Summons on 08/26/2010 and Served the same upon ALHAYEK within named Party in said article(s) by serving a true copy of said article(s) for the party with ALHAYEK, (Personally) a person of suitable age and discretion there residing at [My Old Address], ALHAYEK(s) usual Place Of RESIDENCE on August 27th, 2010 at 4:53 PM."
    On the second page of the Affidavit of Service, a check bos that reads

    "Personal Service: By leaving a copy of the small Claims Affidavit and Summons with ALHAYEK personally"

    Of course, I have already been out of that residence since January 2010. I never got my summons and claims , until I went to court and got copies of it!

    So Anyway , of course a default judgement was entered against me , and part of the judgement reads
    "You May ask to set aside this judgement by filing a Motion to Set Aside within 15 days after the date the judgement was entered. You may appeal this judgement by filing a Notice of Appeal with this court within 30 days after the date the judgement was entered"

    Now another notice titled "DECLARATION OF DUE DILIGENCE" which is written by a constable includes her declaration about serving a "Motion And Order Supplemental" and dated November 16, 2010. which a portion of it states

    "That on 11/1/2010 I received the above stated documents[] to be served upon, ALHAYEK, at the address of [OLD ADDRESS].

    THIS PAPER WAS NOT SERVED, the record of all attempts at service is as follows:
    at the time of the service a male answered the door and stated ALHAYEK does not live at the listed residence, he has been living there for the past three months, moved in about August 2010"


    In other words, I wasn't at that address when the Plaintiff claimed to have served me my summons and claims.

    Now, I have testimony of the constable which contradicts the plaintiffs claim of personal service. Plus, I really wasn't living there and i can prove that easily.

    My question is : can I have have the judgement set aside due ti improper service despite the note saying that I can set it aside within 15 days of its entry.

    Thank you

  2. #2
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    73,187

    Default Re: Improper Service of Process

    If you weren't served, you weren't served. The big issue, though, is whether you owe the money - if you do and successfully establish non-service, it doesn't mean the case goes away. It just means that they have to properly serve you and proceed with a contested case, so you're really just buying time.

    Are you stating that you were served with the default judgment, or that you only obtained it when you went to the court for copies of the summons and complaint.

  3. #3
    Join Date
    May 2011
    Posts
    3

    Default Re: Improper Service of Process

    Mr. Knowitall,
    What I really want is to avoid a judgement against me to appear in public record. So I'm welling to settle outside of court, I just want to get rid of the judgement.
    I knew about the judgement when the constable served me a motion and order supplement (at that time the default judgement was already entered without my knowing anything).
    I wasn't served with the default judgement (they couldn't serve that to me either , because the address they used was invalid). But they did serve me the motion and order supplement to summon me to court and question me about my income, and that is when I knew I had a default judgement entered against me.

  4. #4
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    73,187

    Default Re: Improper Service of Process

    If you've filed a motion to set aside the verdict based upon non-service, contact the law firm for the creditor and offer to settle the debt in exchange for their stipulation to setting aside the default and dismissing the case, and see what they say. You can try that before filing a motion; they may be more responsive if something is pending in court.

  5. #5
    Join Date
    May 2011
    Posts
    3

    Default Re: Improper Service of Process

    Thank You very much for your help

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