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.