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Debt collection lawsuits can be some of the worst lawsuits to defend.  Attorneys representing debt collection firms are often over-worked and unable to give much attention to any single case.

One of the most common problems I see in debt collection lawsuits is improper service of process.  That is, the attorney fails to properly serve the lawsuit on the person being sued.  Generally, the person who has been sued first finds out about the lawsuit when their wages or bank accounts are garnished.  This means that the creditor has already gone through the court system and has obtained a default judgment.

For service of process to be proper, the serving party must make sure the other party receives notice of the lawsuit.  Although there are exceptions, service is generally accomplished by hand delivering the legal documents to the opposing party.  The documents are delivered by a process server who must sign an affidavit stating, among other things, the time and location of the service.  This “Affidavit of Service” must be filed with the court.    Here is a good video discussing Colorado service of process rules in detail.

If you find out a default judgment has entered against you and you were not properly served, you will need to take steps to set aside the judgment.  The first step is to obtain the Affidavit of Service to see where you were allegedly served.  Once you have this information, you can gather proof that the alleged service did not take place.  With this information, you can file a motion with the court to set aside the default judgment.  This can be accomplished by hiring an attorney or you can file the motion  yourself.  The judge may set aside the judgment based on your motion or she may hold a hearing on the matter to give the parties an opportunity to be heard.  The Colorado State Judicial Branch website provides forms, including a template Motion to Set Aside Default Judgment.  Visit our self-help section for more information on representing yourself.

Keep in mind that setting aside a default judgment may just be a temporary remedy.  Once the judgment is set aside, the creditor may still be able to sue you.  Assuming the creditor can have you properly served, the lawsuit will continue and you will have to defend against the creditor’s claims.