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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
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Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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The defendants attorney filed a motion

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This is related to previous question. The defendant's attorney filed a motion stating the defendant was not properly served and asking to set aside default judgement.


 


The default judgement supposes to be issued around the 20th of March. But it was not issued. The defendant's attorney filed the motion in early April. Should the judge issued default judgement on time, the defendant would not have time to file delayed motion.


 


I believe all the services including warning order attorney were properly served according to legal procedure. Is it a normal defence step to dispute the legal service first?  Does the defendant want to prove the legal service not correct or just a way to start his defence.


According to your experience, does the defendant has any intention to settle? Or he wants to fight hard and buy time. Will this be a lengthy process from now on? By the way, office of inspector general is collecting evidence. They have interviewed my office clerk and doctor involved. If the civil court needs to show witness or evidence, can the plaintiff cross reference the evidence collected by OIG office (I mean call the OIG investigator to testify his finding)? One DEA office investigator asked me to provide them with a copy of civil complaint. They want to see what charges being filed against the defendant.

Submitted: 1 year ago.
Category: Legal
Expert:  Wendy-Mod replied 1 year ago.
Hi, I am a moderator for this topic. I've been working hard to find a professional to assist you right away, but sometimes finding the right professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.


Thank you!
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Customer: replied 1 year ago.


Wait

Expert:  Fran-mod replied 1 year ago.
Thank you for your patience. We will continue the search for a professional for you.
Customer: replied 1 year ago.


Thanks. If the question can be phrased differently, let me know.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for asking for me for your follow up question. I apologize for the delay, but I have had some bad internet service connections while traveling for a client.

The claim of improper service is always a defense made to try to vacate a default judgment. If you used the warning attorney and the warning attorney properly went through the process, then this defense is generally dismissed as not being good cause or a valid defense as the documentation will show that there was an attempt at proper service which the defendant continued to avoid.

As far as the default judgment you need to check with the clerk to see why the judgment was not entered on March 20 as the court stated it would be and the judge's clerk would be th one who would have to tell you the cause for the delay on issuing that judgment.

It sounds like this defendant is merely looking to delay the case, which he has done by continually avoiding service and forcing you to get the warning attorney and this move to seek to vacate the judgment is just further delay. If the court for some rare reason for this defense does grant the vacating of the judgment this defendant will likely delay filing his answer and ask for extensions and anything else they can do to force a delay of the case and try to cost you additional money.



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Customer: replied 1 year ago.


Thanks. After the initial default judgment hearing, the judge gave 20 days for defendant to respond. the judge's letter to defendant says if the defendant failed to respond by March 20, the court is obligated to issue judgement without delay. In fact the default judgement does not come after two weeks. One explaination is clerk's parent was sick and the clerk was off.

Then, after two weeks, the court received the motion from defendant's attorney.

 

If the defendant's motion says "not properly served" and the court finds otherwise, will the default judgement still move ahead? Why don't the defendant use other reason to file a motion such as disputing fraud charges. Or the only way at this point (after expiraton of Marh 20) is to dispute "not properly served".

 

The default judgement is set aside at this point.My attorney and his attorney will set a time with judgement chamber for a hearing. I think this is regarding defendant's motion. I guess the defendant can set reason like sick or out of town etc. But I think government investigator may have contacted or met the defendant.

 

I think the court is likely to grant the motion because of the purpose giving 20 days after the warning order attorney. Does the court have to find anything wrong of the legal service?

Expert:  Law Educator, Esq. replied 1 year ago.
If the court finds the defendant was indeed properly served, then they court will deny the motion and the default judgment will be entered. The only way at this point to dispute the default is claiming they were not properly served, which is virtually impossible with the warning attorney.

The court has to find some good cause why the defendant was not properly served in order to grant the motion from the defendant.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 92695
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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