One day you have money in your bank account and the next day you don’t. You check your bank to find out why your money is missing, and you find out that you have a judgment, and the Judgment Creditor has levied your bank account. This happens all the time… I know…. I represent the folks it happens to.
So, what do you do. Well, that depends. If you have known about the judgment for a long period of time and have been hoping that the Judgment Creditor forgot about you all you can do is file a Motion to Quash of the money that was taken is exempt. BY the way, you should have already filed a Protected Income and Assets Form as well; that is if you knew about the judgment. This is for another blog. I am talking about the person who had no idea they were even sued. What does that person do.
A person who was never properly served a lawsuit and now finds themselves with a default judgment can have the default judgment set aside. There are two fronts to an attack on a default judgment. The first is lack of persona jurisdiction under Tennessee Code of Civil Procedure Rule 12.05(5) and the second is mistake, inadvertence, surprise or excusable neglect under Tennessee Code of Civil Procedure Rules 52 and 60.02.
Tennessee Code of Civil Procedure Rule 12.02(5) allows a Defendant to make a motion for “insufficiency of service of process…” If the Judgment Creditor did not serve you properly then the Court lacked personal jurisdiction to make any decisions about your case. Indeed, “[s]ervice of process must strictly comply to Rule 4 of the Tennessee Rules of Civil Procedure.” (Watson v. Garza, (Tenn.Ct.App. 2008) 316 S.W.3d 589, 598). Additionally, “knowledge of attempted service does not render the service effectual if the plaintiff did not serve the process in accordance with the rule.” (Id. At 598). The law is clear, the “court’s jurisdiction of the parties is acquired by service of process, proper service of process is an essential step in a proceeding.” (Id. at 593). So if service was not done properly….then everything gets unwound and the case starts from the beginning.
Rule 52 of the Tennessee Code of Civil Procedure states, “[f]or good cause shown the court may set aside a judgment by default in accordance with Rule 60.02.” Rule 60.02 of the Tennessee Code of Civil Procedure states, “On motion and upon such terms as are just, the court may relieve a party or the party’s legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect”. There is a catch here though. A motion under Tennessee Code of Civil Procedure 60.02(1) must be brought within one year of the judgment being entered. There is no time limit if service of process was improper, and the Court lacks personal jurisdiction.
Setting aside default judgments is tricky work and requires a lawyer if success is at all a concern. Contact our office right away if you find that you are a judgment debtor and you had no idea that a judgment even existed. We can help.