Bad Judgments in Virginia - How to Protect Yourself from an Improper Judgment

As always, before reading this post, please review my disclaimer by clicking on my link above or by clicking on this link.  As always, any legal principals discussed in this post apply only to the Commonwealth of Virginia.

Introduction

Let's say you are a normal, law-abiding citizen - someone who takes his or her responsibilities seriously, and who would never ignore legal papers that got served on them.  Nonetheless, one day you start noticing that money is being garnished from your paycheck - upon further investigation you check your credit, and find there's a judgment against you!  You look into the judgment and find out that a default judgment was entered against you two years ago after you didn't show up in court - you investigate the service of the papers and find out they were served at an address you haven't lived in for five years.  Are you stuck, or can you take action to stop the garnishment and undo the judgment?

As I have explained previously, in order to undo a default judgment you typically must file a motion to vacate that judgment within 21 days.  However, there are five situations in which you can make that motion beyond 21 days - the judgment contains a clerical error, the judgment was obtained by fraud (as long as this motion is still made within 2 years), the judgment was void (as in the court did not have proper jurisdiction to enter it), you had settled the claim with the plaintiff prior to the judgment being entered, or you were on active duty military service and the rules of the Servicemembers' Civil Relief Act were not followed.

A situation like the one above describes the most common situation in which default judgments are challenged - the claim is that the default judgment was void because the court never obtained personal jurisdiction over you due to the lack of proper service.  In this post, I am going to discuss how to vacate (undo) a void default judgment, and what the fall-out of a successful motion to vacate is.

Check out what court you are in

The procedures differ slightly for General District Court and Circuit Court (J&DR generally doesn't have default judgments, so this post really does not apply there).  In General District Court, you file Form DC-434 - Motion to Set Aside Default Judgment.  That form can be obtained here.  You want to fill out that form as instructed and file it with the General District Court.  They will set a date at which time you will be required to present your case (see below).

In Circuit Court, there is no form.  You will draft your own Motion to Reopen and Set Aside Default Judgment.  You will have to follow your local Circuit Court's procedures for setting a hearing date, at which time you will again be required to present your case.

Presenting your case

When your hearing comes, you will need to present your case.  Note, this is only your case that the default judgment is void - this is not the time to present your case in defense of the lawsuit itself.  It's important to remember that it is your burden to prove that you were not properly served, so don't just show up and say you didn't live there at the time service was made - be prepared to prove it.  A lease at your new residence showing the dates of rental, for example, would be helpful.

Note that if you can prove you did not live at the residence where service was made, you may still not be in the clear.  If you were served by posted service (copy taped to your door), a copy would have also been mailed to you at that address, and if you had mail forwarded from there to your new address, that may be enough to defeat your motion.  You will need to testify that you either never set up mail forwarding, or that the service was made too long after you moved to be forwarded.  If you prove you did not live there, and can testify that mail was not forwarded to you, that will usually be enough to prevail - but it's not a guarantee.  The other side may have evidence to counter yours, and you could be in for a tough hearing.

I won the hearing!  Now what?

Now, the reality is, if you manage to succeed and get your default judgment undone, the case doesn't just go away.  With the default judgment vacated, you are now considered to have made your appearance in the case - the lawsuit underlying the judgment will proceed as though no default had ever happened.  If you are in the General District Court, a trial date will be set.  In the Circuit Court, the case will follow your local rules for proceeding to trial.

It's very important to understand also that if your motion is successful, the case is fully revived as if it had never ended.  This means that if the lawsuit was originally filed before the statute of limitations expired, then the lawsuit is still within the statute of limitations, no matter how long it's been.

That all being said, if any post-judgment action had occurred after the default judgment - it should be undone.  Any wages that had been garnished, for example, should be returned to you upon the successful vacation of the default judgment.

Conclusion

There are few things more frustrating than being told you did something wrong - especially something as important as not showing up in court when required.  This frustration can be compounded when that alleged failure harms your credit and costs you time, money and aggravation.  If you have a default judgment sitting on your credit that you don't think should have ever been entered, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!