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  1. #1
    Join Date
    Jul 2009
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    23

    Default Default Judgment After Non-Service

    My question involves small claims court in the state of: IN
    I was sued in small claims court. A default judgement was issued. I never got any notification of the case. I found out via my bank was my account was frozen. I went down to the court and got copies of the case. All it said was that a constable delivered to my house. The date of delivery was given and a brief description of my house, but I never got it, nor was anything mailed. I filed to have the judgement set aside since I never new the case was filed. Plus the debt is over 7 years old and past the SOL. I filed now 3 weeks ago and still no decision from the judge. So:

    How long can the judge wait to decide?
    What happens to my monies that are frozen?
    If the judge decides in my favor, what happens?

  2. #2
    Join Date
    Jan 2006
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    38,867

    Default Re: What Will Happen

    =indy4192;331507]

    How long can the judge wait to decide?
    until he decides


    What happens to my monies that are frozen?
    that would depend. If the judgment stands, apparently they can be seized to pay the judgment


    If the judge decides in my favor, what happens?
    that is up to the plaintiff. He can refile or not. His choice.

    You need to check into what is acceptable service for the court. If the service was acceptable, you may simply be SOL (and that has nothing to do with a time limit). If service was defective, you file a motion to set aside the judgment based on that. Your problem may be you did not specify why the judgment should be set aside. "Not getting" the notice is not necessarily a proper reason as long as service was legally acceptable.

  3. #3
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    Jul 2009
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    23

    Default Re: What Will Happen

    So if the judge rules in my favor, the person sueing me has to do the entire process over again? Also is there a way I can find out what is acceptable "delivery" method for my state?

    Also if the judge rules in my favor and the monies have been turned over to the plaintiff, how do I get those back?

  4. #4
    Join Date
    Jan 2006
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    38,867

    Default Re: What Will Happen

    =indy4192;331654]So if the judge rules in my favor, the person sueing me has to do the entire process over again?
    generally, yes.

    Also is there a way I can find out what is acceptable "delivery" method for my state?
    yes.


    Rule 4.1. Summons: Service on individuals
    (A) In General. Service may be made upon an individual, or an individual acting in a representative capacity, by:
    (1) sending a copy of the summons and complaint by registered or certified mail or other public means by which a written acknowledgment of receipt may be requested and obtained to his residence, place of business or employment with return receipt requested and returned showing receipt of the letter; or
    (2) delivering a copy of the summons and complaint to him personally; or
    (3) leaving a copy of the summons and complaint at his dwelling house or usual place of abode; or
    (4) serving his agent as provided by rule, statute or valid agreement.
    (B) Copy Service to Be Followed With Mail. Whenever service is made under Clause (3) or (4) of subdivision (A), the person making the service also shall send by first class mail, a copy of the summons without the complaint to the last known address of the person being served, and this fact shall be shown upon the return.
    Amended Dec. 7, 1970, effective Jan. 1, 1971



    Also if the judge rules in my favor and the monies have been turned over to the plaintiff, how do I get those back?
    you would have to file with the courts. Offhand, I do not know the correct motion to file. Although a court clerk cannot give legal advice, you may get one that will give you this info at least. It doesn't hurt to call and ask.

  5. #5
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    Jul 2009
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    23

    Default Re: Default Judgment After Non-Service

    In my case it was "supposedly" delivered to my house as the date of delivery and a very brief description was given. On the form where you mark you mailed it was not marked and I never recieved anything in the mail. Shouldn't something this important HAVE to be sent certified mail?

  6. #6
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    Default Re: Default Judgment After Non-Service

    I gave you the law. There are ways to deliver it without using certified mail. A drop off delivery is adequate if it is followed up with a 1st class letter. I presume if it does not get returned due to the addressee no longer living at that address, the courts accept this as valid service.

    Obviously the constable is going to claim he delivered the summons. If he has the correct address and a description of the house, it is difficult to argue the fact he did deliver it to your house. Obviously, things can happen before you would have seen it nailed to your door though.

    I would see if the 1st class letter was mailed to your home. That has to be in the record for the service. If not, you have grounds for improper service.

  7. #7
    Join Date
    Jul 2009
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    23

    Default Re: Default Judgment After Non-Service

    On the court papers where the area is for how it was delivered there is a box next to mailed, it was not checked. What other ways can I see how or if it was mailed?

  8. #8
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    Jan 2006
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    38,867

    Default Re: Default Judgment After Non-Service

    On the court papers where the area is for how it was delivered there is a box next to mailed, it was not checked.
    I presume this is for the summons and complaint the guy dropped off. The plaintiff still needed to follow up that service with a 1st class mailing of the summons.

    They may not have it in any records anywhere but if they do not, it is hard to claim simply that "we mailed it". Generally the courts will require a date and result of the mailing.

    In your motion, you simply claim invalid service due to failure to comply with the legal requirements of Indiana code (whatever). In their response, they will either claim they mailed it or go "whoops". If they claim they mailed it, you seek proof of the 1st class mailing subsequent to the hand delivery to the premises as per Indiana code (whatever code section it is).

  9. #9
    Join Date
    Jul 2009
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    23

    Default Re: Default Judgment After Non-Service

    I submitted my request/motion now about a month ago and still no word from the judge. It is just frustrating that someone can be sued without their knowledge of it, have all their monies in their bank account frozen without their knowledge. What happen to having your day in court? This collection agency knows the debt is past the SOL and I am betting that is why they snuck it through and did the bank freeze, figuring they would get that money and no more once I got wind of it. Something is definitly wrong with our court system.

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