Consumer Law

Default Judgments in Indiana

By Robert Duff, Esq.

The vast majority of judgments obtained by debt collectors are by default. That means the alleged debtor didn't show up to court to contest the case. Unfortunately, I believe that debtors often don't show up to contest a case because they feel that there is no use since the debt was once a legitimate debt. This is a mistake and results, no doubt, in many judgments that never should have been. But that's an issue for another day.

Sometimes a default judgment is obtained because the alleged debtor never actually became aware of the lawsuit. The Indiana Rules of Trial Procedure outline how an individual defendant is to be served with the Summons and Complaint. Rule 4.1 states that service may be made on a person by:
1. certified mail to their residence, place of business or employment;
2. handing it to them in person;
3. leaving a copy at their house or where they live; and
4. serving their agent as provided by rule, statute or valid agreement.
These are the only ways, almost, that a person can be served with a lawsuit that has been filed in state court in Indiana. I say almost because a recent unpublished Indiana Court of Appeals decision says that an individual can also be served by sending certified mail to their post office box. See Timothy E. Wellington v. Asset Acceptance, LLC, 49A02-0706-CV-466 (February 20, 2008). I suspect this case will be accepted and reversed by the Indiana Supreme Court because it clearly ignores the plain language of the rule, but I guess we'll see.

If you are surprised that leaving a copy of the summons and complaint at someone's house, or, probably more accurately, their last known address, is valid service, you aren't the first. I regularly speak with defaulted consumers who are surprised and angered by this. But it's true. It's right there in the rule.

If you have been unfortunate enough to discover that a default judgment has been taken against you (often, by seeing it on your credit report), all hope is not lost. A default judgment can be set aside, but it is much, much easier if the motion is filed within one year of the judgment. After a year, it can be very difficult and often impossible to set aside a default judgment.

Full post as published by Indiana Consumer Lawyer Blog on February 23, 2008 (boomark / email).