Kentucky

Untimely CR 60.02 motion to set aside default judgment (extraordinary nature): ASSET ACCEPTANCE LLC V. MOBERLY (SC 12/20/2007)

By Michael Stevens

ASSET ACCEPTANCE LLC V. MOBERLY
APPEALS:  Jurisdiction and CR 60.02
2006-SC-000617-DG.pdf
PUBLISHED: VACATING AND REMANDING
OPINION: ABRAMSON
DATE RENDERED: 12/20/2007

The Supreme Court vacates and remands the dismissal of an appeal from an order overturning a two-year old default judgment.

Appellant filed suit on credit card debt; served appellee/debtor; noticed debtor on motion for default judgment; received DJ after hearing; and filed a judgment lien and sent a copy to debtor. Debtor never responded to any notice. Some two years later, appellant successfully garnished $11,000 from debtor. Debtor challenged under CR 60.02 alleging that, since she had completed inpatient alcohol treatment shortly before receiving notice of suit, she was incapable of managing her affairs. She argued this amounted to a "reason of an extraordinary nature justifying" setting aside the DJ. Appellant argued this was "excusable neglect," at best, which carries a one-year statute of limitations. Appellant appealed; CA dismissed, citing the rule that an order setting aside a judgment and reopening a case for trial is not final and therefore not appealable.

The Supreme Court holds that it is appropriate to join the federal courts to the extent of recognizing a narrow exception to the rule. Permitting an immediate appeal on these narrow facts balances the parties' competing interests.

SUMMARY:

The Supreme Court vacates and remands the dismissal of an appeal from an order overturning a two-year old default judgment. In this narrow circumstance, Kentucky will recognize a jurisdictional exception to the rule forbidding an appeal from an order vacating a judgment and reopening a case.

John Hamlet
Sitlinger, McGlincy, Theiler & Karem

Full post as published by Kentucky Cases on January 12, 2008 (boomark / email).