Going to court to fight

Hello!

Short recap: I had a default judgement against me for a bill I'd already paid; I didn't show up in court because I never received a summons. I took everyone's advice and filed to have the judgement vacated.

I received papers indicating that there is a hearing this coming Monday, so I took the day off of work and made arrangements with my brother to come and get me (I can't drive for health reasons). I just spoke to the clerk of courts asking what I would need to bring, and...wow.

It's not a hearing to vacate the judgement, just to decide whether or not to re-open the case. She said she didn't know how I would prove that I never received a summons because "You obviously got this notice." She then backed down and admitted that they'd updated my address in the system after I filed my papers to get it vacated.

What stinks is that I can't find the money orders proving that I paid, and Monday will be my first trip home in almost a year; I probably won't have time to get copies from the issuer. I have to prove that I would prevail if the case were re-opened. Without the papers proving that I paid it, should I emphasize the change of address (court no longer has jurisdiction over me) and "Unclean Hands" (since the notice of judgement was the first I'd heard of this mess)?

Any advice would be greatly appreciated! I've gone from confident I would win to really, really scared.

I must say, I am a little confused--you do not live in that county anymore, so they obviously didnt have your correct address...and youre saying that you have to prove to them that you would win in order for them to open the case back up?

The whole purpose of the law requiring that you be served a summons is so that your right to due process is protected. Due process does not hinge on whether or not you can prove your own innocence. In our court system, you are still innocent until proven guilty last time I checked.

Let me ask you a couple things--first, what state do you live in, and what state did you get sued in? And second, how old is this debt? You definitely have legitimate grounds for vacating the judgment because of two things--improper venue if you do not live in that county anymore, and improper service since you were never served a summons. Depending on how long it has been since this debt went delinquent, they may have acted illegally before they even would have learned from you that it has already been paid off.

I am very confused as well. I live in Wisconsin, and last year moved from Sauk County to Dane County. I was sued in Sauk County, and the Clerk even admitted that she did not have the right address until I filed the paperwork to have it vacated.

I was under the impression that it was a simple matter; in fact, in my request I cited both improper venue and lack of due process. I tried to ask her what I needed to prove my current address and she interrupted saying this wasn't about the merits, it was just to get the case re-opened. (Heck, trying to find out what papers I needed was the reason I called!)

I definitely sensed that in her mind I was guilty and would have to prove my innocence. Um, what? She's not even the judge, but if this is how the Clerk reacts I'm feeling less than confident....

I was not aware that an individual county had the right to act in violation of the Constitution when determining someone's guilt.

Reading between the lines, I would speculate that the judge might find the issue of proper service to be a bit iffy, and is looking for some showing on your part that vacating the judgment will lead to a retrial of some substance. I dont think the court is asking you to prove your case via motion, but just to present some showing that if the judgment were to be vacated, then a new trial would involve some issues of substance.

If he has not been served properly, how would he be able to discuss any of the merits of the case? He has not seen the complaint, had the opportunity to answer, file for discovery or anything else.

I would think the hearing should just be on the merits of whether or not he was properly served. If he can prove he did not live in the county, and that the service went to an old address, then he should have propable cause to vacate and reopen. at that point he should have to worry about the case itself.

I would try to find out where service went (should be able to get from court), and bring as much proof as he can that he has not resided there for however long it has been.

Stick, I couldnt agree with you more.
It seems so apparent that the motion to vacate on the basis of service should not depend upon the merits of the case that it leads me to believe there is more to the situation than has been set forth.
The judge certainly knows the law, and must have some basis for extending the hearing to include issues pertaining to the merits.
This appears to be a situation that requires a whole lot more than advice from we dwellers of a credit forum.......

If I had more information to share, I certainly would! (Also, I'm a she, but that's beside the point.) I don't understand why the judge has decided to approach it this way. It seemed to me that it was straightforward enough.

Stick, how would I go about obtaining proof as to where the summons was sent? I certainly have proof of where I am living now.

Also, I can't see why they decided the merits needed to be discussed when all I asked was for them to vacate the judgement. This is making my head hurt, to be honest.

You can fond that information on thw Wisconsin Courts website. Do a quick Google search. A WI resident can be served via the mail.

Well, great news! The lawyer for the plaintiff decided not to contest, so my case is reopened. Thank goodness I have things organized already.

I did take a look at the statutes, and their method of serving summons was quite acceptable--if I'd received it. The court has taken the stand that due to clerical error, my summons was lost in the mail and therefore I have the right to protest.

Also, I was finally provided with paperwork from the plaintiff. Luckily, I have a cousin who works in the health industry, and she volunteered to analyze it for me. Next, I am going to research whether I would have grounds to counter-sue.

Whew!

That is great news for you. I would also look up how it is reported on your CRA, and make sure you look in to cases that are already in your states court system. Google "WHYCHAT", and look at some of the information he has available.


Good Luck, and keep us posted