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**Proper steps in vacating a civil judgment in California?**

Sanger, CA |

I am giving the following documents to my local civil courthouse to motion to vacate a civil lawsuit judment; I am attaching the following documents:
1) Motion to vacate the judgment on pleading paper using California Civil Code 473.5 (never was served summons),
2) Declaration-Form MC-030 &
3) General Denial-Form PLD-050....Is this correct?

P.S: What should "I" and should "not" write in my Form MC-030 (Declaration). My reason to file is because I was served at my parents house where I have not lived since 2004 and my parents claim they never received anything...judment was filed on 07/2010 for $5,000.00 which I disclaim knowledge. And is all the documentation mentioned above necessary in order just to submit my motion?

Attorney Answers 3

Posted

You would be well served to hire a local debt collection lawyer to review your papers, prepare the motion and argue it.

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3 comments

Asker

Posted

what is the difference between a civil litigation attorney/lawyer and a debt collection lawyer?

Kevin Samuel Sullivan

Kevin Samuel Sullivan

Posted

a civil litigation lawyer is someone who handles various types of civil cases whereas a debt collection lawyer is someone who specializes in debt issues.

Asker

Posted

thank you....

Posted

The motion itself should consist of a Notice of Motion, the Memorandum of Points and Authorities, and the Supporting Declaration.

Yes, you can concurrently submit the PLD-050 General Denial.

You will also need a first appearance filing fee ($395) and motion filing fee ($40) payable to the court.

Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.

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13 comments

Asker

Posted

Are the fees accurate for California? All are done on pleading paper except Form PLD-050 correct? Is it necessary to complete and submit Form MC-030 (Declaration) if it is a civil lawsuit default judgment (limited jurisdiction) and is in the amount of $5K?

Frank Wei-Hong Chen

Frank Wei-Hong Chen

Posted

The fees will be less if the case is a limited jurisdiction case. Look up the fees at the court's website.

Asker

Posted

What is the process to submit the documents to the court? Do I also need to send all the documents via certified mail to the plaintiff or does the clerk take care of that?

Frank Wei-Hong Chen

Frank Wei-Hong Chen

Posted

You mail via regular mail the original and one copy to the court, with a self-addressed stamped return envelope for the "conformed copies". You also need someone to mail a copy to the plaintiff and sign all of the proofs of service. The clerk does not take care of any service.

Asker

Posted

Can I just show up to the courthouse since it is in the same city? Someone other than myself would have to mail the plaintiff the same copies as provided to the court via certified mail?

Frank Wei-Hong Chen

Frank Wei-Hong Chen

Posted

Yes, you can also file everything in person. Yes, someone other than yourself must sign all of the proofs of service. Regular mail is fine.

Asker

Posted

so to summarize: the motion to vacate the judgment is due to never being in receipt of the summons (CCC 473.5). The Memorandum of Points and Authorities is to determine which affirmative defenses apply to my case and the declaration is to explain what has happened from the beggining since finding out of the judgment?

Frank Wei-Hong Chen

Frank Wei-Hong Chen

Posted

No, it is CCP 473.5. No, the Memo of Points and Authorities is the legal basis to set aside the default and to vacate the default judgment. The Answer sets forth your affirmative defenses. Yes, the Declaration tells the story.

Asker

Posted

What should I say and not say in my Declaration? I disclaim knowledge of the debt and the plaintiff is a collection agency who hired an attorney to represent them...the only time I reached out to them was when I found out about the judgment and called them to get information. They did not want to give me any details about the account and I send them a certified mail/ return receipt validation of debt which has passed the 30 day requirement; I know it does me no good but I wanted to show the court that I have tried to resolve this matter myself and now have to take them to court to validate the complaint.

Asker

Posted

Can I also put the affirmative defenses in box 2 of Form PLD-50 (General Denial)?

Frank Wei-Hong Chen

Frank Wei-Hong Chen

Posted

Yes, that is where the affirmative defenses go.

Asker

Posted

Are you in California? How much do you charge to provide such service?

Asker

Posted

Thank you. I am going to consult with a local civil litigation attorney to review my documents before filing them with the court. You have been very informative and detailed in your responses and I appreciate all of your help....

Posted

Review the statute you're relying on. You need to include in your declaration that you weren't avoiding service, and how and when you found out about the judgment. Include that you have a meritorious defense and you do need to submit a copy of your proposed answer (your general denial), which will be lodged until your motion to set aside is granted, which it probably will be since these motions are routinely granted, at which point it will be deemed filed and served on the creditor.

Note that your general denial needs to include your affirmative defenses or they will be waived.

Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.

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