April 24, 2019

Colorado Court of Appeals: Presumption of Regularity Applied to 20-Year-Old Default Judgment; Error to Place Burden on Plaintiff to Prove Valid Service

The Colorado Court of Appeals issued its opinion in Tallman v. Aune on Thursday, January 24, 2019.

Default Judgment—Presumption of Regularity—Lost or Destroyed Records—C.R.C.P. 60(b)(3).

In 1996, Tallman obtained a default judgment against Aune. About 15 years after the judgment entered, the district court destroyed the case file under its records retention policy. In 2016, Tallman filed writs of garnishment to enforce the judgment and the writs issued. Shortly after, Aune filed a motion to vacate the default judgment and quash the writ of garnishment, asserting that he had not been aware that a judgment had been entered against him and he had not been served. In response, Tallman admitted he could not produce the affidavit of service, but he attached copies of the default motion and default judgment and cited the register of actions entry noting service had been made. The district court granted Aune’s motion to vacate, finding that Tallman failed to establish by clear and convincing evidence that Aune was properly served. It also denied Tallman’s motion to revive the default judgment as moot. Tallman moved for reconsideration, arguing that the presumption of regularity must apply. The district court dismissed the case.

On appeal, Tallman argued that the district court erred in vacating the default judgment and it should have applied the presumption of regularity to presume the default judgment was entered with jurisdiction. Here, though the return of service is no longer available, the register of actions, the limited record, and the 1996 default judgment show service was effectuated, so the presumption of regularity applies. The district court erred in declining to apply the presumption of regularity to the default judgment when it granted the motion to vacate. Further, the burden remained on Aune to overcome the presumption as to the default judgment. At most, Aune provided the district court with an unsworn assertion that he had not been served two decades ago. These inferences do not constitute sufficient evidence to overcome the presumption of regularity. For the same reason, Aune didn’t satisfy his burden of proof to present clear and convincing evidence to set aside the default judgment

Tallman also requested the court of appeals to direct the district court to “grant a nunc pro tunc order for revival of judgment,” arguing he complied with the procedural requirements to revive the default judgment. Because the default judgment must be reinstated, the motion to revive is not moot.

The judgment was reversed and the case was remanded to reinstate it and to consider Tallman’s request to revive the default judment.

Summary provided courtesy of Colorado Lawyer.

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