IN THE MAGISTRATE COURT OF COBB COUNTY
STATE OF GEORGIA
| XXXXX, Petitioner,
vs. YYYYY, Respondent |
civil action No.: 21-E-10178 |
MOTION TO SET ASIDE DEFAULT JUDGMENT
COMES NOW, Petitioner XXXXX and pursuant to O.C.G.A. §15-10-43(g) files Motion to Set Aside the Default Judgment, in which he Moves to have default judgment against him set aside. The Petitioner shows with specificity the grounds for which the Court may Grant his Motion.
STATEMENT OF FACTS
On or about September 15, 2021, the Respondent obtained a Temporary Protective Order (hereinafter “the Order”) against Petitioner in the Cobb County Superior Court. She made the said filing on the false allegations that Petitioner had threatened to take away her children.
Consequential to the filing of the said Order, Petitioner had the option of challenging the illegally acquired Order but instead negotiated on a no-contact Order on or about October 12, 2021. It is instrumental to note that the Respondent’s attorney was aware that the Order was frivolous, so he pushed for mediation between the Petitioner and the Respondent.
Interestingly, when Petitioner wanted to rent an apartment, he discovered that the Respondent’s attorney had filed an eviction case against Petitioner without Petitioner’s knowledge. It is worth noting that the said filing was done although Petitioner had never been to the house since September 15, 2021. Besides, Petitioner had never been allowed into the house and never lived there. Furthermore, Respondent served the said Order at the house, knowing very well that Petitioner never lived there and had never visited the house since September 15, 2021. Petitioner avers that Respondent did this in a bid to obtain a default judgment against Petitioner.
During the mediation procedure, Respondent never disclosed to Petitioner that she had filed an eviction case against Petitioner. She induced Petitioner to sign the no-contact order yet she had filed an eviction case against him the previous night. Also, the previously filed Temporary Protection Order had prevented Petitioner from accessing the house, and the Respondent knew this.
The said eviction Order has tainted Petitioner’s name. Petitioner cannot rent a house again because of the frivolously obtained eviction Order, which is in the public records.
It is also worth noting that the Respondent’s ex-wife, Mr. Zachary Moses Cheroff (hereinafter “Zachary”), has been subjecting Petitioner to harm and distress. Notably, Zachary has been stalking Petitioner on multiple occasions. [Exhibit- Warrant Affidavit]. For instance, on or about September 12, 2021, he filed a false child abuse report against Petitioner at the Georgia Division of Family & Children Services claiming Petitioner physically abused his and Respondent’s minor daughter Addison Cheroff. He also engaged in communication harassment against Petitioner, by texting and calling Petitioner on multiple occasions. It appears Zachary stalks Petitioner in a bid to falsely allege that falsely allege that Petitioner resided at 2464 Norwood Drive, Smyrna, GA 30080 (Respondent’s house) to reduce his monthly Alimony and Child Support payments to his ex-wife (the Respondent).
ARGUMENTS
- Standard of Review
Although the Supreme Court agrees with the Court of Appeals that “proceedings in magistrate court are not directly subject to the Civil Practice Act by the express language to that effect in OCGA § 15-10-42”; “some procedural rules, other than those limited matters set forth in OCGA § 15-10-40 et seq., … must apply to magistrate court proceedings” W. Gerry Howe v. William Douglas Roberts, et., al., Supreme Court of Georgia No. 46899, (385 S.E.2d276), (259 Ga. 617) (1989).
“Default judgment is a drastic sanction that should be invoked only in extreme situations. Whenever possible, cases should be decided on their merits, for default judgment is not favored in law.” Barbour v. Sangha, 346 Ga. App. 13 (815 SE2d 2280 (2018) (citations and punctuation omitted)
- There was improper service
“When a defendant in a lawsuit challenges the sufficiency of service, he bears the burden of showing improper service.” Patterson v. Coleman, 252 Ga. 152 ( 311 S.E.2d 838) (1984). Under Georgia law, an individual may be served by delivering a copy of the summons and complaint to him personally “or by leaving copies thereof at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.” O.C.G.A. § 9-11-4(e)(7).
“Where a defendant claims there was a failure of service, the trial court has the authority to decide as a factual matter whether service has occurred. O.C.G.A. § 9-11-12(d). This finding will not be disturbed as long as there is ‘some evidence to support’ it.” Jacobson v. Garland, 227 Ga. App. 81, 83 (1997).
In the said case, the Respondent served the evacuation order at the house where Petitioner had never visited since September 15, 2021. Respondent was aware that Petitioner never resides in the said house. Accordingly, service was not done pursuant to the required process. As a result, Petitioner avers that the service is null and void, and the evacuation order is of non-effect.
- The Respondent committed fraud upon the Court, to obtain the default eviction order
“To authorize a court to set aside a default judgment on the ground that it was obtained by fraud practiced by the successful party, the party seeking relief must show that he was prevented from making his defense by said fraud, unmixed with negligence on his part.” Hirsch v. Collier, 104 Ga. App. 271 ( 121 S.E.2d 318) (1961).
In the instant action, the Respondent obtained the default judgment fully aware that she had not properly served the Petitioner. Notably, Respondent was cognizant that Petitioner never resides in the said house, yet she proceeded with the service. She knew that by serving the document(s) at the house, Petitioner would never find it, and a default judgment would be entered against him. Petitioner fails to understand why Respondent would go to such extreme lengths to ensure Petitioner suffers harm and distress. Furthermore, the Respondent’s attorney stands liable for contempt of court. He misadvised Respondent to frivolously obtain a default judgment to Petitioner’s detriment.
WHEREFORE, Petitioner moves the Court to set aside the default judgment entered by this Court, for want of proper service and for fraud. Petitioner also prays this Court sanctions the Respondent for her frivolous and malicious acts as alleged herein. Thirdly, Petitioner prays this Court sanctions Respondent’s attorney for contempt of court because he misadvised Respondent to file a frivolous and malicious case against Petitioner. Lastly, Petitioner prays for any other Order this Court deems just.
Respectfully Submitted,
DATED: __________
CERTIFICATE OF SERVICE
This is to certify that I have served a true and correct copy of the Motion by U. S. Mail with proper postage affixed thereto to insure delivery as follows:
[ENTER RESPONDENT’S ADDRESS]
DATED: __________
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