Denver, CO asked in Appeals / Appellate Law, Civil Litigation and Landlord - Tenant for Colorado

Q: Can someone read this over and see if I'm accurate or not, for me please Motion to reconsider judgment in FED Eviction

"fraud of courts." Defense


1. During the proceedings, the plaintiff's counsel presented unnecessary testimony from a process server to support a false claim of personal service to the defendant. This witness testimony was intended to embolden the plaintiff's claim. 2. However, it is our contention that an affidavit, which could have provided irrefutable evidence of personal service, would have sufficed and obviated the need for witness testimony.3. It is crucial to note that the judge, in his wisdom, did not find the witness testimony of the process server credible. Instead, the judge believed the co-defendant's testimony in that she willingly accepted personal service of all copies related to the case. 4. As a result, the judge dismissed the defendant's case due to a denial of due process. However, the co-defendant was evicted because, although her testimony disproved the defendant's personal service and due process, it inadvertently verified her own in the matter.

1 Lawyer Answer
John Michael Frick
John Michael Frick
  • Appeals & Appellate Lawyer
  • Frisco, TX

A: That doesn't sound like a valid defense to an eviction case. It sounds like the judge did the correct thing in dismissing (presumably without prejudice) the eviction against the unserved defendant and evicting the defendant who admittedly was served. The landlord will have to refile the eviction and properly serve the first defendant to get that defendant evicted.

Assuming the eviction is for non-payment or late payment of rent (which is the typical reason), the only real defense on the merits is that the tenant timely paid the rent in full on or before the date it was due.

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