If somebody swore on a court document they personnally served a summons and I prove they did not, will the entire case be thrown out?

UPDATED: Jun 11, 2009

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If somebody swore on a court document they personnally served a summons and I prove they did not, will the entire case be thrown out?

I was recently sued and found out when a default judgment arrived in my mailbox. Prior to receiving this judgment I had no knowledge of the claim. I filed a motion to set aside judgment and requested copies of all documents pertaining to this case.One of these documents was an affidavit of service. The person who signed this affidavit swore they personnally served me on a day that I can prove I was at work.Will the case be thrown out? Also the debt they are claiming I owe, already appears on my credit report from a collection agency,with whom I am in dispute.Can two separate entities collect?

Asked on June 11, 2009 under Bankruptcy Law, Michigan


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 13 years ago | Contributor

I am unsure why this is the "Bankruptcy" section.  Your question is really two-fold: one part on proof needed to vacate the default and two, what to do about a debt sued for twice.  In any event, you need to resolve the default before you get to the merits. What happened with the motion?  Did the other party put in papers (usually an affirmation or affidavit) in opposition to your motion?  In your Reply to their papers you need to state what you have stated here and attach your proof of where you are, etc.  The Court could believe you or set the matter down for a hearing on service of the summons and complaint (called a Traverse).  Then they other party will bring in the process server and he/she will testify.  You need your proof that day too (someone to testify where you were would be helpful).  If the default is vacated and the matter dismissed you will probably be served again, so watch out. But once the default is vacated you may e in a good position to call and speak with all those involved about resolving the matter in your favor.  Good luck.

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