Beating a Default Judgment In Ohio

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You’ve just received a garnishment order. Someone is trying to take money out of your paycheck, your bank, or is filing a lien against you. They claim that they’ve got a judgment against you in a case you’ve never even heard of. You call the court and, sure enough, a default judgment was entered against you. Now what?

·        Prove that you didn’t respond because of mistake or confusion

·        Prove that you didn’t know about it, that you never received the original complaint

·        If you do any of these three things you have a much better position to fight the judgsment

There are essentially two ways to undo a default judgment against you. The first is to claim relief under Civ. R. 60(B). You can be relieved from a final judgment if the judgment was entered due to mistake, inadvertence, surprise, or excusable neglect. Excusable neglect is the most common.

If you are going to claim any reason for relief from judgment, you must generally seek relief within one year from the date the judgment was entered, regardless of the reason.

If you are beyond the one-year deadline, you can still seek to have the judgment vacated by claiming that you were never served with the original complaint. This is actually very common, and Plaintiffs frequently claim service on someone when they do not actually have a good address for them.

Absent proper service of process on you, a trial court lacks jurisdiction to enter a judgment you. If the court nevertheless enters judgment against you, it is void on its face. “Failure of proper service is not a minor, hypertechnical violation of the rules. Such failure is in direct contravention of the Rules of Civil Procedure.”[1] A judgment rendered without proper jurisdiction over the action or the defendant is void.[2]

The simple way to state that you weren’t served is by affidavit. Where a party seeking a motion to vacate makes an uncontradicted sworn statement that they never received service of a complaint, they are entitled to have the judgment against them vacated.[3]

Courts generally will give latitude to people with default judgments against them, and would prefer cases to be heard on the merits. If you can overturn the judgment either by a rule 60(B) motion, or by failure of service, then you are in a much better position to contest the merits of the case.

[1] Cleveland v. Ohio Civil Rights Comm., 43 Ohio App.3d 153, 157, 540 N.E.2d 278 (8th Dist.1989).

[2] Patton v. Diemer, 35 Ohio St.3d 68, 70, 518 N.E.2d 941 (1988); Rokakis v. Estate of Thomas, 8th Dist. No. 89944, 2008–Ohio–5147, ¶ 7.

[3] Jacobs v. Szakal, 9th Dist No. 22903, 2006-Ohio-1312.