Yesterday, the Oregon Court of Appeals held that a person must respond timely to a summons and complaint even though overwhelmed by other personal and business issues.
In Estrelia Saldivar v. Ken Roberts and Bridge Homes, LLC., Ms. Saldivar sued for fraud, misrepresentation, unfair labor practices and conversion. Defendant did not respond, and her attorney obtained a default judgment. Only after her attorney garnished defendant's bank account did he show up in court and ask to lift the default judgment because of "excusable neglect."
Mr. Roberts told the court of his personal problems: divorce, terrible economic times for his real estate business, a barrage of other certified letters demanding things. He confessed that he should have responded, but that he was overwhelmed. The trial judge gave him a break, recognizing that this has truly been an unusual time of recession.
I've been critical of the unfairness of holding plaintiffs to tight time deadlines imposed by the statute of limitations, but letting defendants off the hook. It is to the point where we lawyers think it is a waste of time to default defendants, because it so easy overturn the default judgment. On this occasion, however, the Court of Appeals said the trial judge abused his discretion; he was too easy on defendant.
The court explained that personal problems might be enough IF they amount to psychiatric problems making a person incapable of taking care of affairs. However, Mr. Roberts did not claim that. Instead, Mr. Roberts, basically, said that this claim never rose to the top of his "to do list."
I notice that Mr. Roberts was not represented by an attorney in the Court of Appeals. I suppose that defense lawyers will learn from this case. In the future, when defendants want to lift a default judgment, they better submit a note from a psychologist saying that the defendant was, effectively, paralyzed.
Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234
The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.
