We have handled several cases in which we successfully got judgments vacated because the Defendant was never served. This is not an uncommon problem, because the phenomenon of “sewer service” is alive and well. It is not unusual that a person had no idea there was a judgment against them, and that the first time they learn of it is when there is a wage garnishment or a bank account garnishment.
Vacating a judgment is certainly not easy, but it is appropriate in the right cases where proper service never occurred. Once a judgment is vacated, then the Defendant has the opportunity to mount a defense to the underlying lawsuit. Although affidavits of service are prima facie evidence of service, they can be rebutted if a person was never served. Ashe v. Spears, 263 Md. 622, 628 (1971).
Pursuant to Maryland Rule 5-535(a) when a timely motion is filed, “the court may exercise revisory power and control over the judgment and may take any action that it could have taken under Rule 3-534.” Rule 3-534 states in pertinent part:
…the court may open the judgment to receive additional evidence, may amend its findings or its statement of reasons for the decision, may set forth additional findings or reasons, may enter new findings or new reasons, may amend the judgment, or may enter a new judgment.
In addition, pursuant to Rule 3-535(b), the court has revisory power in instances of fraud, mistake or irregularity:
(b) Fraud, Mistake, Irregularity. On motion of any party filed at any time, the court may exercise revisory power and control over the judgment in case of fraud, mistake, or irregularity.
There is also a Maryland Code provision which is consistent with the Rules:
For a period of 30 days after the entry of a judgment, or thereafter pursuant to motion filed within that period, the court has revisory power and control over the judgment. After the expiration of that period the court has revisory power and control over the judgment only in case of fraud, mistake, irregularity, or failure of an employee of the court or of the clerk’s office to perform a duty required by statute or rule.
Md. Code Ann., Cts. & Jud. Proc. § 6-408.
As stated by the Maryland Court of Appeals, “[t]he purpose of authorizing a trial court to exercise broad discretion to revise unenrolled judgments is to insure that technicality does not triumph over justice.” Haskell v. Carey, 294 Md. 550, 558 (1982).
Moreover, “[a]n ‘irregularity’ usually occurs in the context of ‘a failure to provide required notice to a party’….” Mercy Med. Ctr., Inc. v. United Healthcare of the Mid-Atl., Inc., 149 Md. App. 336, 375–76, 815 A.2d 886, 909 (2003).
If the court lacks jurisdiction over the Defendant due to lack of service, the judgment can be vacated:
[i]f the defendant was not properly served the court below had no jurisdiction and the decree issued was invalid and without significance. To have been valid the service must have been personal and the fact that the defendant may have had actual knowledge of the suit against him would not cure a defective service. (internal citations omitted).
Sheehy v. Sheehy, 250 Md. 181, 184-85 (1968). A judgment invalid for jurisdictional defect may be attacked through a Rule 3-535 motion. Pickett v. Noba, Inc., 114 Md.App. 552 (1997)(improper service is proper grounds for Rule 2-535 motion).
Even where a Defendant has actual knowledge of the case, the court still lacks personal jurisdiction where there has not been proper service of process. As stated by the Maryland Court of Appeals, “we have repeatedly held that defective service of process is a jurisdictional defect…and actual knowledge of the proceedings on the part of the defendant will not cure that defect.” Lohman v. Lohman, 331 Md. 113, 130 (1993).
CONTACT US: If you discovered there is a judgment against you and you were never served, feel free to contact us for a consultation.