I found out on 01/26/2012 that a judgment (civil lawsuit) was recorded on my credit report which was filed on 07/12/2012. The judgment, summons, proof of service and complaint have my parents address where I have not lived at since 2004. My mother who is said to have received the summons, never received anything by mail or hand delivered as the documents state. I finally received enough information by spending countless hours researching to be able to file a motion to vacate the judgment. California Code of Civil Procedure section 473.5 (The rule states that I have 2 years to file a motion and have 180 days to file from date of knowledge). In closing, the default judgment was granted because I never received the original summons....any guidance will be appreciated...thank you.
No. You will need to submit your proposed answer along with your motion to vacate default judgment pursuant to Code of Civil Procedure § 473.5.
“When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.” (CCP § 473.5(a).) Such a motion must be made either within 2 years of the entry of default judgment or within 180 days of service of notice of the entry of default or default judgment. (CCP § 473.5(b).)
The motion must also be accompanied by an affidavit, “showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect.” (CCP § 473.5(b).)
As the moving party, you must also file and serve a copy of the answer, motion, or other pleading proposed to be filed in the action.
“It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business his motion for relief under section 473 will be denied.... The law frowns upon setting aside default judgments resulting from inexcusable neglect of the complainant.” (Elms v. Elms (1946) 72 Cal. App. 2d 508, 513.)
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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Consumer Protection Attorney
If you're filing a motion to vacate for improper service, you most definitely do not want to file an answer.
To discuss this answer with me in more detail, please call (805) 244-5291 or email me at firstname.lastname@example.org. This answer is intended to provide general information only. It does not create an Attorney-Client relationship, nor should it be construed as legal advice or an opinion on specific situations. Eric D. Ridley is only licensed to practice law in California.
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Debt Collection Attorney
There are two types of motions that you can file. You can file a motion to set aside a void judgment, which is void because the court never had personal jurisdiction. You were not served. The other motion is a motion for leave to vacate a default, claiming that although you were served, you were negligent in failing to file an answer. You must file an Answer with the CCP 473 motion.
When my office files such motions, we often file on alternative grounds. And we file a responsive pleading, commonly a Demurrer or Motion to Strike, or both.
You should, at least, sit down with a lawyer.
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