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How do I properly submit a Motion to Vacate Default Judgement? Have to be notarized? What if nothing can be collected?

Azusa, CA |

Default Judgement entered on a case, I wasn't served. I had no knowledge of the judgement entered until I took a call from the collector asking for 9 grand. I have tried to contact the right attorney in order to defend my position but no luck, so I am going at it alone. I refuse to pay the amount as the I have evidence from the situation which makes me innocent. Any advise would be greatly appreciated. Thank You in Advance.

I just went to the county court website and found this as the last action "OSC RE: DISMISSAL" "Disposition: VACATED" what does this mean? Should I show up on that date stated? Thank You.

Attorney Answers 4


  1. Unfortunately, there is no "form" that you can download and fill in for a motion to set aside default and vacate default judgment.

    You need to specially prepare the notice of motion, motion with points and authorities, and a supporting declaration. The declaration is signed under penalty of perjury (so it does not have to be notarized).

    However, here is a link that will give you some helpful guidance:

    http://www.courts.ca.gov/partners/149.htm#setaside

    This was prepared by the Ventura Courts Self-Help Legal Access Center.

    Before you prepare and file the motion to set aside, however, try calling the plaintiff's attorney to see if the plaintiff is willing to STIPULATE to set aside the default). If so, it would obviate the necessity for a formal motion.

    Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.


  2. As Mr. Chen states, you'll need to prepare and file a notice of motion and motion to vacate the default judgment, along with a memorandum of points and authorities articulating your argument regarding why the judgment should be set aside and the legal basis for it. You may also need to submit a declaration if you are claiming that you were never properly served with the original summons and complaint.

    You will also need to call the court to set a date for a hearing of the motion. This date must be reflected on the notice of motion and motion, and there are certain calendaring rules that will apply as well.

    The documents need not be notarized----you will sign them (as plaintiff in pro per), file them with the courthouse, and serve them on the other party.

    Although you may feel that the facts of your case are straightforward, the laws regarding motions, hearings and litigation generally are anything but. I know that you've been in contact with attorneys already without success, but I would nonetheless encourage you to keep the search going and retain an attorney you're comfortable with to represent you in this matter.

    Best of luck.

    The information presented here is general in nature and is not intended, and should not be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author, and Pham Law Group does not represent you as your attorneys until retained by a written retainer agreement signed by both parties.


  3. Im quite surprised you cant find a lawyer to prepare the motion for you. Of course, the atty doing that would need to be paid. There are time requirements on such motions, and as mentioned in the other answers, law and porcedure must be followed properly if you are to prevail. Id suggest you consider the risk of loss, and allocate some money to pay for proper help in making the motion. If the case is defensible on the merits, you need to get over this procedural default, in order to prevail on the merits.


  4. Writing a motion to set aside default judgement can be factually and legally complicated, I would caution against taking it on yourself.

    When did you learn of the default judgement?

    Hyde & Swigart is a law firm concentrating its efforts in the area of consumer law, the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. (“FDCPA”), and California's Rosenthal Fair Debt Collection Practices Act, California Civil Code §§ 1788-1788.32 ("Rosenthal Act"). Our lawyers are specially trained in the Federal FDCPA, Consumer Defense, and other consumer related matters. Our goal is to protect you against unfair, deceptive and abusive debt collection practices. Creditors, professional debt collectors, and attorneys who violate the law are subject to paying damages, statutory penalties, and the consumer's attorneys fees and costs. If you feel you have been abused, deceived or treated unfairly, you may need a lawyer. We can be reached at 858 900 7342 , or through one of the evaluation forms on this site.

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