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  1. #1
    Join Date
    Mar 2011
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    2

    Default What is the Official Way to Be Court Served

    My question involves judgment recovery in the State of Georgia.

    I recently found out i have a judgment placed on me (credit card debt). They sent some papers to an address where i don't reside and it was given to a lady at the residence. I was never informed about this so i missed the court date. A judgment was put on my credit for almost 3 times more than i owed the credit card company. I would have liked to settle but since i did not show up in court they placed the ridiculous amount on me. My question is can i file a motion to vacate this judgment since i was not served personally? Or since it was delivered to a home that i use to reside i am out of luck? Any assistance would be appreciated. Thanks.

  2. #2
    Join Date
    Sep 2005
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    Behind a Desk
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    98,846

    Default Re: What is the Official Way to Be Court Served in Georgia

    Assuming you haven't waited too long, you can bring a motion to set aside the default based upon non-service. But how did they end up with the wrong address - even if you've never lived at the address, if you were using it as your legal mailing address for this debt they are justified in serving you there. What is your relationship to the address and the "lady"?

  3. #3
    Join Date
    Mar 2011
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    2

    Default Re: What is the Official Way to Be Court Served in Georgia

    Thank you soo much for the response. When i was relocating for a job i forwarded my mails to my girlfriends parents house since my address was not going to be stable. Also got my license using that address since their county taxes are cheaper which explains why i was served at that address. There are about 5 people living in that house so things can get undelivered to the intended recipient. My girlfriend did not get it so i am assuming one of her sisters or mom. When i called the court house they mentioned it was delivered to a "female" and the case was closed due to no response. According to records the letter was served in 2007. I received a letter from my current credit card company of a law firm serving them a subpoena to provide them with my bank account info. That's how i found out about having a judgment on my credit.
    I just wanted to make sure if i file a motion stating i was not served in person that it will not be thrown out stating a reason like it was my address so it does not matter.

    As far as waiting too long, from 2007 till now too late?

  4. #4
    Join Date
    Mar 2009
    Location
    Key West, FL
    Posts
    2,350

    Default Re: What is the Official Way to Be Court Served in Georgia

    Way too late to do anything legally. No court has jurisdiction anymore.

  5. #5
    Join Date
    Sep 2005
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    Default Re: What is the Official Way to Be Court Served in Georgia

    At first blush it appears that you've waited too long to be able to attack the judgment. I also would see you as having a genuine problem demonstrating that the "mistake" in serving an adult at the residence at issue was "unmixed with the negligence or fault of" you - you chose to receive your mail at that address and chose to register your driver's license to that address, making it appear to the world that you lived there. Also, frankly, if you were reliably getting your mail it's going to be difficult for a court to believe that a document delivered by a process server would somehow end up being discarded without your girlfriend, her mother, or you hearing a word about it. I suggest consulting a lawyer in Georgia to discuss your options in more detail.
    Quote Quoting OCGA § 9-11-55. Default judgment
    (a) When case in default; opening as matter of right; judgment. If in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default unless the time for filing the answer has been extended as provided by law. The default may be opened as a matter of right by the filing of such defenses within 15 days of the day of default, upon the payment of costs. If the case is still in default after the expiration of the period of 15 days, the plaintiff at any time thereafter shall be entitled to verdict and judgment by default, in open court or in chambers, as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, without the intervention of a jury, unless the action is one ex delicto or involves unliquidated damages, in which event the plaintiff shall be required to introduce evidence and establish the amount of damages before the court without a jury, with the right of the defendant to introduce evidence as to damages and the right of either to move for a new trial in respect of such damages; provided, however, in the event a defendant, though in default, has placed damages in issue by filing a pleading raising such issue, either party shall be entitled, upon demand, to a jury trial of the issue as to damages. An action based upon open account shall not be considered one for unliquidated damages within the meaning of this Code section.

    (b) Opening default. At any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and shall announce ready to proceed with the trial.
    Quote Quoting OCGA § 9-11-60. Relief from judgments
    (a) Collateral attack. A judgment void on its face may be attacked in any court by any person. In all other instances, judgments shall be subject to attack only by a direct proceeding brought for that purpose in one of the methods prescribed in this Code section.

    (b) Methods of direct attack. A judgment may be attacked by motion for a new trial or motion to set aside. Judgments may be attacked by motion only in the court of rendition.

    (c) Motion for new trial. A motion for new trial must be predicated upon some intrinsic defect which does not appear upon the face of the record or pleadings.

    (d) Motion to set aside. A motion to set aside may be brought to set aside a judgment based upon:
    (1) Lack of jurisdiction over the person or the subject matter;

    (2) Fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant; or

    (3) A nonamendable defect which appears upon the face of the record or pleadings. Under this paragraph, it is not sufficient that the complaint or other pleading fails to state a claim upon which relief can be granted, but the pleadings must affirmatively show no claim in fact existed.
    (e) Complaint in equity. The use of a complaint in equity to set aside a judgment is prohibited.

    (f) Procedure; time of relief. Reasonable notice shall be afforded the parties on all motions. Motions to set aside judgments may be served by any means by which an original complaint may be legally served if it cannot be legally served as any other motion. A judgment void because of lack of jurisdiction of the person or subject matter may be attacked at any time. Motions for new trial must be brought within the time prescribed by law. In all other instances, all motions to set aside judgments shall be brought within three years from entry of the judgment complained of.

    (g) 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.

    (h) Law of the case rule. The law of the case rule is abolished; but generally judgments and orders shall not be set aside or modified without just cause and, in setting aside or otherwise modifying judgments and orders, the court shall consider whether rights have vested thereunder and whether or not innocent parties would be injured thereby; provided, however, that any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.

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