TOPEKA, Kan. — The Kansas Court of Appeals has reversed a Riley County District Court order denying a soldier’s motion to set aside a default judgment after a creditor sued him for breach of contract.
Brian McNair of Manhattan defaulted on a car loan through Coastal Credit, LLC in 2014. The car was repossessed and sold and the company sued him for more than $8,800 plus interest. McNair, who was deployed in Africa with the U.S. Army at the time was never personally served the summons and petition. Instead that was delivered to his wife at the couple’s Manhattan residence, which was argued to be his “usual place of abode” – the place usually occupied by a person.
McNair never filed an answer to a petition and did not appear at a court docket hearing. After a couple years of Coastal Credit requesting the court to issue a default judgment, the court ruled he was in default. In 2017, McNair’s wages were garnished and he later appealed to have the default judgment set aside and the garnished funds returned.
McNair argued the purported service upon him was invalid under a 1993 ruling under Judith Coleman vs. Cal Wilson. In that case, the court held a military service person’s usual place of abode is where the person, lives, eats, sleeps and works at the time of the attempted service.
McNair argued his “usual place of abode” at the time his wife was served, was Camp Lemonnier in Africa. The higher court agreed saying Coastal Credit’s judgment against McNair is void for lack of legal service of process. They reversed the district’s order and allowed the judgment against McNair to be set aside.