Setting aside a Missouri rent judgment typically occurs for one of two reasons. One is that the judgment was entered even though the tenant was not properly served with the summons and petition. The other reason is that, although the tenant was properly served with summons and petition, the tenant has a meritorious defense and good excuse for failing to appear in court when required.
Service of Process
After a landlord files a petition for rent and possession, the court clerk will issue a summons to each defendant, directing them to appear in court at the time and date stated in the summons. If the tenant is personally served with the summons and petition, then the landlord can obtain a judgment for both rent and eviction. Personal service means that either a sheriff’s deputy or a person appointed by the court, called a special process server, hands the summons and petition to the tenant. If the tenant refuses to accept the offered summons and petition, then the server can simply drop the documents at the feet of the tenant, which is just as good as placing it in their hand. The server can also leave the summons and petition at the tenant’s residence with anyone at least 18 years of age also residing there. If the tenant is not personally served, but the sheriff or process server posts the summons and petition on the door of the premises, and mails the summons and petition to that address, then the landlord can obtain a judgment for eviction, but not for rent.
Landlords should be aware that service by a sheriff is presumed by courts to be valid, but service by a special process server is not presumed valid and must be proved. Therefore, landlords should consider serving tenants by sheriff rather than a special process server, which might lessen the evidence necessary to defend against a motion to set aside a judgment for lack of proper service.
Lack of Personal Jurisdiction
A judgment entered for rent without personal service may be set aside at any time upon evidence that persuades the judge that the defendant was not personally served. However, if the tenant was personally served but missed a court date, then setting aside a Missouri judgment requires the tenant to persuade the judge that the tenant has “good cause” for missing the court date and a “meritorious defense” to the allegations in the lawsuit. Other than for lack of personal service, a default judgment will not be set aside unless the tenant shows both good cause and a meritorious defense.
Good Cause
Good cause generally means that the tenant missed the court date for reasons beyond their control, such as an emergency medical condition or traffic accident. Whether the reason given for missing a court date is convincing enough to set aside a default judgment is up to the judge. However, judges will not usually accept flimsy or unsubstantiated excuses. Judges do not like it when a tenant could have contacted the court about their absence before the court date but did not. Not being able to take off work or miss school will also typically not work.
Meritorious Defense
A meritorious defense generally means that the tenant can articulate a plausible defense to the allegations in the landlord’s petition. One plausible defense might be that the tenant has paid all or some of the rent claimed to be past due. Another might be that rent is not owed, because the landlord breached the lease by failing to properly maintain the property.
One Year Deadline
Unless the tenant was not properly serviced with summons and petition, a motion to set aside a default judgment for rent must be filed within a reasonable time, but not more than one year from the date of the judgment. What constitutes a reasonable time usually depends on when the tenant learned about the default judgment or when the tenant should have been aware of it. (A judgment can be set aside at any time if the tenant proves that tenant was not served with summons and petition.)
Setting aside a Missouri rent judgment does not mean that the case is dismissed. Rather, once the tenant is personally served, or if the tenant waives service, then the lawsuit marches on and the tenant must defend against the allegations asserted in the petition. On the other hand, if a judgment is set aside for reasons other than lack of personal service, then the lawsuit simply picks up where it left off.
Service of summons and petition is a fundamental requirement in any lawsuit. Making sure it was done properly is important to obtaining a judgment that will withstand a potential challenge down the road.
Trial De Novo
While tenants can set aside judgments for rent as described above, tenants have only ten days from the date of judgment to file a motion to set aside a judgment for possession (eviction) or to file an application for a trial de novo, which is a new trial heard by a different judge. The judgment as to eviction will generally become final if the tenant fails to make one those filings within the ten days. Because a trial de novo vacates the initial judgment, even default judgments, and the tenant, or landlord if the landlord loses, gets a “do-over”, filing for a trial de novo will often be a better option than filing to set aside a default judgment.
This article is for general informational purposes only. It is not intended as legal advice.
Sewell Law, LC provides legal counsel and representation to residential and commercial landlords. Please contact Michael Sewell at (314) 942-3232 or at michael@sewelllaw.net to discuss your legal issues.
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