How To: Move To Vacate A Judgement Entered After Bad Service

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motion to vacate

Your wages are suddenly garnished. You discover there was a lawsuit against you, and a judgment was entered.  But you never knew about it.  If this sounds familiar, you may be a victim of bad service (also known as “sewer service”).   In 2019 the late Justice Ruth Bader Ginsburg described “sewer service” in the Supreme Court case of Rotkiske v. Klemm as follows:

intentionally serving process in a manner designed to prevent Rotkiske from learning of the collection suit. Klemm did so, according to Rotkiske, in order to ensure that Klemm’s untimely suit would result in a default judgment that would remain undiscovered until time to oppose that judgment, and to commence an FDCPA suit, ran out. Though Rotkiske did not allege that “sewer service” is itself a practice independently proscribed by the FDCPA, such service is nonetheless a fraudulent abuse that should trigger the fraud-based discovery rule.

We’ve written previously about the law in these situations. Any collection lawsuit against you must be served on you. For the Circuit Court Maryland, Rule 2-121 states that service must be made by delivering by hand a copy of the complaint and summons, or by leaving it “at the individual’s dwelling house or usual place of abode with a resident of suitable age and discretion”, OR mailing it by certified mail, restricted delivery.  Maryland Rule 3-121 governs service in the District Court, and it is has the same requirements.  These Rules are important, because people cannot defend themselves if they never knew about the lawsuit or were never properly served.

If you have a judgment against you but were never properly served, you may be able to get the judgment vacated and then defend the lawsuit. A motion to vacate, in simplest terms, is a formal request to overturn a court’s previous judgement. This article discusses some of the factors the court may consider when faced with a motion to vacate a judgment.  

How Do They Say You Were Served?

Maryland courts should not enter a judgment against a defendant unless they think the person was properly served. Someone has to file an affidavit of service, saying how you were served. If you want to challenge service, you need to see what that affidavit says. You can go to the Court Clerk’s Office and ask to see the affidavit of service in your case or (in most jurisdictions) look it up on a terminal in the courthouse.  Always make a copy of it.

There are four possibilities:

  1. The affidavit says you were personally served at an address where you did not live at the time of service.
  2. The affidavit says that service was made on someone who was not a co-resident of yours at the time of service.
  3. The affidavit says that you were served by certified mail, but the mail went to an address where you never lived.
  4. The affidavit says that you, or a co-resident, were served at your correct address, but that did not happen.

The first three situations are much easier to deal with than the fourth.

The Evidence You Might Need to Prove That You Were Not Served. 

To get a judgment vacated, you need to do more than just claim you weren’t served. You need to provide some objective evidence that you weren’t served.  Below are some factors that a judge might typically consider.

You’ll usually need to present a lease, deed, utility bill, driver’s license, bank or credit card statement, or any other official mail/documentation showing your correct address at the time. You must be able to show that you weren’t resident at the time of service, so you may need more than one document to show that you lived somewhere else over a period of time, including the time of service.

As above, plus any document showing when you stopped living at the former address, such as a contract of sale, lease termination letter, move out forms, security deposit disposition forms, or other official letters acknowledging your change of address.

Evidence that the person was not a co-resident, such as a lease or a deed. You may ultimately need the person allegedly served to testify.

Evidence showing that the person was no longer a co-resident (see above). For former spouses or partners, evidence might also be found in the files of divorce, custody, or protective order cases.

Evidence showing that the stranger is unknown to you, such as evidence of your actual co-residents, lease showing who is a resident.

See above for wrong address cases generally.

Evidence showing that the green card (which should be attached to the affidavit of service showing the signature of someone who signed for the certified mail) shows a signature that is not yours, such as any signed official document (lease, deed, passport, driver’s license, marriage license or certificate, loan or tax paperwork)

These are difficult cases because they amount to your word against the process server’s word. Supportive evidence might include evidence showing that the description on the affidavit of service is wrong in an important way (such as wrong gender, wrong race, drastically wrong height, weight or appearance). Evidence from co-residents that service did not occur might be helpful, but it is often not viewed as very reliable evidence because service often occurred long ago.

The Motion to Vacate

If you can prove that you were not served, you should consider hiring an attorney to help you get the judgment vacated. You’re only going to get one shot at vacating the judgment, and in our experience, many judges are skeptical when someone says they were not served with the lawsuit.  

If you plan to file a motion on your own without hiring a lawyer, you should seek help from the Maryland District Court Self Help Center, because you must comply with certain formalities before filing the motion. It is helpful to attach all your documentary evidence to the motion and perhaps draft your own affidavit supporting the motion.

If the Court Grants the Motion to Vacate.

Getting a judgment vacated is only the beginning of the story: the case will remain active, and, if you are served properly, it can proceed to trial. With the case now starting from square one, you can file an Answer or Notice of Intention to Defend, or even a Motion to Dismiss.

The lawyers at the Holland Law Firm have helped many consumers vacate judgments on the basis of bad service.

If there is a judgment against you even though you were never served with the lawsuit, there is hope.  You may have options.