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  1. #1
    Join Date
    Jan 2012
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    Default When Can a Defendant Move to Set Aside a Default Judgment

    My question involves judgment recovery in the State of: Michigan

    I originally filed a claim in small claims court for around $2500. The defendant had it moved to general civil court but afterward then failed to file an answer within the allotted amount of time. I then filed for default judgment. Under the form, it states that the defendant has 21 days to dispute the judgment. This deadline passed a few weeks ago. All of the papers were served via first class mail by the district court. I am sure that the address is correct. My questions are:

    1) Even though they've pretty much ignored all the court documents for the past couple of months and are outside the deadline, can they still have the default judgment set aside? I expect that the only argument would be that all of the mail got lost. Is that reasonable?

    2) How about after I pay the fees and go through the trouble of a discovery subpoena, garnishment, and/or seizure? Can they still reverse all of the steps?

    3) What is the best method of collecting on my judgment? I have a personal bank account number for the defendant but no SSN. Is that enough? Will I be able to collect from all associated accounts or just the one? Since I have a valid judgment, is there an easy way to get their SSN?

    4) I am afraid that the defendant might have simply decided to withdraw all of his money, close the account, and ignore the court. Not much I can do about that unless I get a discovery subpoena right?

    5) If I end up having to collect against income tax refunds, I assume the strategy is to file after 4/15. Not much of an incentive for them to maximize deductions otherwise.

    Thanks for all of your assistance.

  2. #2
    Join Date
    Feb 2010
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    CT & IL
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    Default Re: Can They Still Have the Judgment Set Aside What is the Best Way to Collect

    Quote Quoting pelical
    View Post
    My question involves judgment recovery in the State of: Michigan

    I originally filed a claim in small claims court for around $2500. The defendant had it moved to general civil court but afterward then failed to file an answer within the allotted amount of time. I then filed for default judgment. Under the form, it states that the defendant has 21 days to dispute the judgment. This deadline passed a few weeks ago. All of the papers were served via first class mail by the district court. I am sure that the address is correct. My questions are:

    1) Even though they've pretty much ignored all the court documents for the past couple of months and are outside the deadline, can they still have the default judgment set aside? I expect that the only argument would be that all of the mail got lost. Is that reasonable?
    .
    You mean you filed for a default and it was granted or did you actually go and get a default judgment. In that case, after a certain number of days the defendant would have to show good cause to the the judgment vacated...actually in either case they can move to vacate.

  3. #3
    Join Date
    Sep 2005
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    Default Re: When Can a Defendant Move to Set Aside a Default Judgment

    Getting a default in a regular court is often a two-step process. First you get the court to enter a default against the defendant. Then you move for a hearing on damages, notice the defendant of the hearing date, and appear in court to prove that your damages are what you claimed. If you are suing for a sum certain, such as a statement of account with a clear balance or some other transaction where there's an objective measure of the damages (e.g., "I purchased a $1,000 TV that was not delivered, but they did not refund by $1,000") it is possible for the court to enter a default judgment in that amount when they default the non-appearing party. But if the amount is not a sum certain and the court proceeds to enter a default judgment on the basis of the assumption that it is, or the plaintiff's representation that it is, the dollar value of the judgment is subject to attack.

    Assuming that you do in fact have a default judgment for a dollar amount that was properly established for purpose of entry of the judgment, the defendant has an initial 21 days to appeal and up to a year to file a delayed appeal. There are also rules permitting a direct attack on a judgment for a year, sometimes longer depending on the facts. We don't know the facts so I'm not going to speculate about possible attacks.

    When you obtained your money judgment you should have asked the court to include taxable costs, and documented those amounts to the court. Filing fees, process server fees, motion fees, etc. If you did not do that, you can explore the possibility of reopening the judgment, but that would also reopen some (and depending on the full facts and what happens in court, potentially all) of their appellate rights. The defendant would be entitled to notice of any such motion.

    It's up to you to find assets that you can pursue to collect your judgment. If you need to do so, as a judgment creditor you can schedule a creditor's exam to question the defendant under oath about his assets and where they're located. I believe there's a standard form interrogatory that you can serve on a judgment debtor, although I haven't searched through the forms to verify that vague memory. Read this.

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